Oral arguments are set for March, with the ruling to be handed down in … June 2020. Right around the time America is ramping up for a five-month run of all-out unrelenting hallucinogenic election insanity.
What fun that SCOTUS is going to pull the pin on this grenade and roll it right into the middle of that national bar fight.
A lefty lawyer on Twitter yesterday found it ominous that the Court would consider the cases at all. Appellate courts have already ruled, after all, citing familiar precedents requiring presidential compliance with document production. It’s not even Trump who’s being asked to produce the documents; it’s his accountants and the banks he did business with, so he can’t claim that turning over the paperwork would be some sort of administrative burden on him that would distract from his presidential duties. It’s their paperwork that’s being sought, not his. The fear among anti-Trumpers is that the Court granted cert for one reason only, because the five-justice conservative majority intends to serve as the president’s bodyguard and swat down the document demands.
I’m skeptical of that outcome, but nothing would surprise me anymore.
Here’s the Times teeing up the media reaction if John Roberts betrays them:
Either way, the court is now poised to produce a once-in-a-generation statement on presidential accountability.
The case will test the independence of the court, which is dominated by Republican appointees, including two named by Mr. Trump. In earlier Supreme Court cases in which presidents sought to avoid providing evidence, the rulings did not break along partisan lines.
To the contrary, the court was unanimous in ruling against Presidents Richard M. Nixon and Bill Clinton in such cases, with Nixon and Clinton appointees voting against the presidents who had placed them on the court. The Nixon case led to his resignation in the face of mounting calls for his impeachment. The Clinton case led to Mr. Clinton’s impeachment, though he survived a Senate vote on his removal.
There are three separate cases at issue, falling into two categories. One asks whether various congressional committees have the power to obtain the president’s financials, the other asks whether state prosecutors do pursuant to a criminal investigation (specifically, the campaign-finance case related to Trump’s Stormy Daniels payoff). The rationales for saying “no” differ by category. In the case of Congress, Trump’s lawyers argue that Democrats have no authority to see the documents unless they need them for a legislative purpose; a judge on the D.C. Circuit reasoned that they might also be able to see the documents for reasons of impeachment, but the committees seeking his tax returns have no role in that process. In the case of state prosecutors, Trump’s lawyers claim that the same executive power that makes the president immune from being tried while he’s in office should also extend to making him immune from investigation while in office. One judge asked Trump’s attorney during oral argument if that meant the police couldn’t look into it if the president shot someone on Fifth Avenue, to borrow one of Trump’s own lines. Indeed, came the reply. So long as Trump is president, even local cops must avert their eyes from crimes he’s alleged to have committed.
So, not a great day for the defense.
The point, however, is that there’s plenty of opportunity here for a split decision in which the Court rules that it’s okay for Congress to get the documents but not state prosecutors, or vice versa (or both). And after watching how John Roberts has operated for the past 15 years, with all of his anxiety about SCOTUS’s right-wing majority being seen as partisan henchmen for the GOP, it’s hard to imagine him forgoing that opportunity for a split decision and instead handing Trump a sweeping across-the-board victory. That’s doubly so given the dispute last year between Trump and Roberts over whether federal judges can fairly be viewed as “Obama judges” and “Trump judges,” and it’s triply so considering the febrile campaign climate that’ll dominate American politics next summer when this ruling is issued. If he rules for Trump he’ll never hear the end of it from the left that he’s become the ultimate “Trump judge,” presiding over the final hack-ification of the Court by putting it at the service of a corrupt president’s need to avoid legal accountability.
But on the other hand, the campaign consequences of letting Trump’s Democratic antagonists see his tax returns will weigh heavily on Roberts the other way. I repeat what I said last month: “Trump’s political enemies would at last have their hands on the holy grail, the financial records that he’s battled for years to keep people from seeing. If the tax returns leak, what’s in them could conceivably upend the election. And John Roberts would have made it all possible. He’ll be the new Comey, the lawman who strove to stay out of politics and somehow ended up all but deciding the election.”
If he rules for Trump, he’ll be ridiculed as a partisan stooge. If he rules against Trump, he’ll be ridiculed as a sellout *and* might indirectly influence the outcome of the election depending upon what it’s in those documents. It’s an unholy nightmare for someone who’s heavily emotionally invested in institutional legitimacy. Roberts being Roberts, my guess is that he’ll issue a split decision to try to please everyone: Congress doesn’t get to see the records but state prosecutors do. Then the country will hold its breath to see if the Manhattan D.A.’s office leaks the paperwork, which would be a major scandal, or if they try to rush to charge Trump with something before November to get the information out in a “proper” way.
As for why SCOTUS would have agreed to take this case, remember that it only requires four votes to hear an appeal, not five. Ginsburg, Breyer, Sotomayor, and Kagan may have decided that this would be an enjoyably squirmy dilemma to dump on their conservative colleagues, especially Roberts. It’s hard to predict whether one party or the other will be more outraged if it loses a major political ruling from the Court but at first blush it seems like defeat here would be stronger turnout fuel for Democrats than for Republicans. They’ll seethe if their long quest to see what’s in Trump’s returns is shut down comprehensively, with neither Congress nor prosecutors allowed to know; it’ll make their urgency to take back the Court that much more intense. Meanwhile lots of polls show that the public thinks Trump should disclose what’s in his returns, which may take some of the venom out of a GOP backlash if the Court rules against him. There’s no real policy implicated here for righties, after all, as there would be in a landmark Second Amendment case, say. It’s essentially a personal matter — Trump’s interest in keeping some financial info secret — framed as a separation-of-powers claim which his own attorneys admit would prevent him from being investigated for any crime for so long as he holds office.
All of which is to say, maybe the Court’s liberals see this as a “heads we win, tails they lose” thing. Either Roberts forces Trump to cough up the documents or he hands down a ruling that’ll be stronger turnout fuel for angry Democrats than anything short of overturning Roe v. Wade would be.