The saga to keep President Donald Trump’s personal and business tax records private continues on…
On Monday, a federal court ruled that the justifications given by Trump’s lawyers — that the president of the United States is immune to criminal cases brought about by state-level attorneys general — was soundly rejected in a 3-0 ruling.
That justification was based on a Department of Justice policy that applies to federal rules regarding the president’s actions. But the same standard doesn’t apply to the states, the court ruled.
Indeed, the precedent set could have been disastrous: Trump’s legal team argued that the president has the right to shoot someone in the street without repercussions if he so chooses.
Trump’s lawyer, Jay Sekulow, said the finding rendered on Monday wouldn’t be the end of it.
“The decision of the Second Circuit will be taken to the Supreme Court,” Sekulow said. “The issue raised in this case goes to the heart of our Republic. The constitutional issues are significant.”
How likely is it that the Supreme Court will undo this ruling? It’s a very slim possibility. In fact, the High Court may not hear the case at all.
Who got subpoenaed may matter here
There are many barriers in the way of Trump being able to successfully continue keeping his accounting firm, Mazars USA, from complying with a subpoena from the district attorney of Manhattan. For starters, Trump isn’t the party being subpoenaed — that in itself will likely be considered by the justices of the Supreme Court.
For the courts to consider a case, they must care about an aggrieved or harmed party. Trump can argue that he’s being harmed by having his tax records released, but the level of harm being levied on him may be outweighed by the fact that Mazars USA is the party that has to comply with an order. The accounting firm has indicated it’s ready to cooperate, but stopped when the lawsuit from Trump was brought about.
Because of that initial decision by Mazars USA, it’s incumbent on Trump to prove the harm is great to him, a compelling legal reason why the Manhattan DA should be able to see his tax returns.
Obtaining a writ
But before that argument can even be heard, a writ of certiorari must be granted by the Court. In legal jargon, that’s a decision by the Court to hear the case in the first place. To receive a writ, at least four of the nine justices must agree to hear the case.
With five of the nine justices being conservative appointees of Republican presidents — including two from Trump himself — that standard might not be difficult to reach. At the same time, however, the justices (who have demonstrated at times, however rare, their independence from political ideologies within the other branches of government) might not grant such a writ.
A state issue, not a federal one
Why not? For starters, the Court doesn’t take that many cases per year. Constitutional crises do take precedent, of course, and in this instance, they might consider adding another docket to their caseload. At the same time, however, the Supreme Court also doesn’t like to interfere in state business — and this case, at its heart, is about a state matter, not a federal one.
This isn’t always the case — when a state or locality interferes in the federally recognized rights of individuals, they have intervened in the past. An issue of free speech rights or a restriction of religious liberty has resulted in the Supreme Court taking action.
But there doesn’t seem to be a reason for the Court to intervene here. The only reason would be to settle once and for all whether the DOJ standard applies to the states — and it’s hard to think that the justices of the Court, even the conservative ones, would think so, given that the DOJ policy isn’t codified into law.
Trump legal team says they're going to the Supreme Court over tax subpoena. https://t.co/k7vucE22D9
— ABC News (@ABC) November 4, 2019
Other institutions have the right to obtain Trump’s taxes…
Court precedent has been clear on this issue: when there have existed avenues for a president’s taxes to be given to another authority, the High Court has ruled that those avenues must be respected. This is especially true within Congress, a legal body that has the authority to get the tax records of any American citizen — including the president.
It stands to reason that this would apply to the states as well. Although not explicitly written in legal code at the federal level, state-level attorneys have the right to subpoena records of individuals who reside or do business in their borders.
Trump and his lawyers are not arguing that states don’t have this right. Rather, they’re arguing that a president cannot be charged or even investigated for a crime, even state ones. That’s a standard that justices of the Court probably don’t want to establish.
The conservatives on the Court might disagree with Trump on this one…
Even with a conservative majority on the Court, Trump will face difficulties. Let’s assume he somehow gets a writ of certiorari, and the Supreme Court agrees to hear his case. While the Court has taken a right turn since he’s added two justices (Brett Kavanaugh and Neil Gorsuch), it’s not lock-step for them to agree with his position.
The justices on the right side of the bench themselves have difficulty agreeing with one another, let alone Trump. According to FiveThirtyEight, even Kavanaugh and Gorsuch only agree with each other on seven out of every 10 cases. That sounds like strong agreement, but it’s actually pretty low for two justices who were appointed by the same president.
Other conservatives on the Court may side with the liberal bloc on the issue. Chief Justice John Roberts has, in fact, agreed more often with Elena Kagan, a liberal, than he did with Gorsuch in the 2018 court term. So it’s no sure thing that Trump will get his way, even with the two justices he appointed siding with him.
There’s no clear path on the matter of Trump’s taxes. His appeal to the Supreme Court may very well be successful, and the Manhattan district attorney seeking those records may not be allowed to view them. The Court may even rule that the president is indeed immune from criminal cases in the states.
But that’s a decision that would transform the way people view the presidency. Most don’t want a president who is “above the law,” and the Supreme Court likely doesn’t want to establish that kind of precedent, either.
Trump has a chance at keeping his tax records secret. But at this point, it’s the smallest of small possibilities. For my money, I’m betting the Supreme Court won’t side with him…and probably won’t take the case up at all, leaving in place the ruling by the lower court that was made on Monday.