The Supreme Court just wimped out on Trump’s tax returns — and handed him a cheap political victory
A cowardly Supreme Court punted today on the criminal investigation into whether Donald Trump, his Trump Organization and others are major league criminal tax cheats.
The high court held that while Trump cannot shield his tax and business records from New York State prosecutors, Trump was entitled to pursue procedural challenges. That could mean months, even years, of delay in the garden variety criminal investigation by Manhattan prosecutors into whether Trump is a garden variety tax cheat.
In its weasely Trump case decision the Supreme Court stood yet again for the idea that you can get as much justice as you can afford, as I’ll explain below.
The high court also turned away three House committees seeking Trump tax and business records, again on narrow procedural issues that ignored the substance of the matter. This ruling came despite a 1924 law that says the Treasury “shall” turn over such records on written request of one of the committee chairs. That law’s significantly, grants Trump the same power to look at anyone’s tax returns without requiring him to justify such requests.
Here the court relied on how the three committees sought to obtain the tax information and other records. Again, the Supreme Court substance was ignored in favor of procedure, one of the ways that the haves use the legal system to oppress the public interest in facts.
The practical effect: The November election will be over before Trump’s tax returns and business records are turned over to Manhattan prosecutors looking into whether the president is a criminal tax cheat. In the end those records will almost certainly be turned over to a state grand jury, but now when it matters most to our republic.
The legal effect: All nine justices agreed that the president is not immune from criminal process and has no rights to assert presidential executive privilege for actions when he was a private citizen, upholding precedents dating to 1807.
Trump asserted absolute immunity, which all nine justices rejected, as was widely expected.
The pattern: Once again under Chief Justice John Roberts the Supreme Court has weakened law enforcement when it comes to elected officials.
Four years ago the court, in a Roberts opinion, tightly narrowed the grounds on which politicians can be prosecuted in graft cases, dismissing the conviction of Virginia Governor Bob McDonnell on bribery charges. In May the court unanimously dismissed all felony convictions in the New Jersey Bridgegate case, creating a much wider highway for corrupt conduct and abuse of office.
All of these cases involved corrupt Republican office holders and aides.
Under Roberts the Supreme Court has essentially legalized bribery and other misconduct by public officials unless some party explicitly states that their intent is criminal. In essence unless prosecutors can show someone was so stupid as to say “I’m giving you this cash and in return you will do this specific thing for me” there is no crime in the view of the Roberts court.
The delays the court ordered for further procedural gearings stand in sharp contrast to the 1974 unanimous decision that President Richard Nixon had to immediately turn over his secret Oval Office tapes to Watergate prosecutors. Nixon resigned days later knowing the tapes would provide irrefutable evidence of his criminal conduct.
Cyrus Vance, the Manhattan district attorney, sought tax and business records dating to 2011. Trump claimed he is immune from both New York grand jury criminal inquiry and Congressional investigations for conduct before he took office in 2017.
No American court, including this one, has held that a president enjoys any immunities for privileges before taking office. But as a practical matter Trump won a delay that helps him politically and further weakens criminal enforcement of the law when the conduct of elected officials is at issue.
The 7-2 decision and dissents by Justices Samuel Alito and Clarence Thomas flowed from unanimous agreement among the justices that a president is “neither absolutely immune from state criminal subpoenas nor insulated by a heightened need standard” to enforce a subpoena of any president.
Chief Justice Roberts began the majority opinion by citing a 1742 British Parliamentary debate:
“In our judicial system, ‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts.”
Then he took a turn into an argument to evade immediate enforcement action as with Nixon and his secret Watergate tapes in 1974 and Bill Clinton and his civil case for sexual harassment in 1992.
“This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable,” Roberts wrote. And with that he and the other justices sent the case back for further proceedings that will tie up the case for months, perhaps years.
Roberts and his confreres could have said the subpoena was valid and let it go at that. It was this decision to assert on Trump’s behalf that he has a right to delaying actions that should trouble all Americans concerned about the rule of law, insulation of elected officials from investigations both criminal and civil and the concept that “equal justice under law” applies to presidents as well as ordinary citizens suspected of wrongdoing.
Roberts also wrote the majority opinion in the case involving three House committees seeking records of Trump’s tax returns. Trump gave Congress grounds to investigate his tax returns. Candidate Trump complained repeatedly that he was harassed with unfair IRS audits because he is a Christian. (He is not a Christian, as he says “revenge” is his only philosophy, but his assertion of IRS abuse more than justified inquiries by multiple Congressional committees.)
Oversight of the IRS has often been the subject of Congressional inquiries.
Chief Justice Roberts wrote the opinion in this case, as well.
“The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority. The question presented is whether the subpoenas exceed the authority of the House under the Constitution,” Roberts wrote.
“We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding… and earlier today we extended that ruling to state criminal proceedings.”
But then Roberts again held that the cases should be sent back to the lower courts for more procedural review.
Significantly, Roberts did not distinguish the first of the three cases, in which the House Ways and Means chairman exercised his authority under Section 6103 of the federal tax code to obtain the tax information from the IRS confidentially. It is for this reason that we should view the Roberts case as more political than legal since the language in that statute is crystal clear in saying the tax information “shall” be turned over on written request.
Politicized Supreme Court
The opinion illustrates how political the court, which often issues 5-4 rulings, has become in the 15 years since Roberts became chief justice of the United States. Roberts could have held that Trump failed to fully avail himself of state-level procedural claims to quash the grand jury subpoena and so the subpoenas to the rump Organization, Mazars USA accountants and others could be enforced forthwith.
It appears that Roberts, a Republican, obtained the large majority, and two mildly dissenting opinions, at the price of delaying enforcement of the subpoenas until after the election. How much more political can the court get?
In voting for delay Roberts and the rest of the court gave Trump a political victory that will allow him to hide evidence that will eventually come out and which from my years of digging into Trump’s conduct I’m confident will establish that Trump has long engaged in felony tax fraud. But it matters that this be established now, not after the next presidential election.Should Trump win a second term via a combination of the Electoral College, voter suppression and help from Russia and other foreign governments, the case will then become one can of procedural worms after another. That could have been avoided had the high court acted definitively instead of with an eye to politics. The decisions today are no profiles in courage or even integrity, but rather in why we need reform of our Supreme Court, which as of now is exempt from the ethics rules that apply to all other federal judges, rules that are themselves weak.