Late last week, the Supreme Court agreed to hear appeals in a series of cases dealing with the issue of requests by Congress and by the Manhattan District Attorney to access President Trump’s financial records and his income tax records, a decision that should be decided just as the campaign for President is starting:
The Supreme Court on Friday agreed to decide whether President Trump may shield disclosure of his financial information from congressional committees and a New York prosecutor, raising the prospect of a landmark election-year ruling on a president’s immunity from investigation while he is in office.
Trump asked the court to accept the cases, and they will be heard in March, with a ruling before the court’s session ends in late June. It means that whatever the outcome of Trump’s separate impeachment proceedings, the controversies over investigations into Trump’s conduct will continue into the heart of the presidential election campaign.
Manhattan District Attorney Cyrus Vance Jr. and three Democratic-led congressional committees have won lower-court decisions granting them access to a broad range of Trump’s financial records relating to him personally, his family and his businesses. The court on Friday said it would consider all three cases.
Unlike other modern presidents and presidential candidates, Trump has not released his tax returns. He and his personal lawyers have mounted a vigorous effort to keep that information private and defeat attempts to obtain the records from financial institutions and his accounting firm.
“We are pleased that the Supreme Court granted review of the President’s three pending cases,” said Jay Sekulow, a lawyer for Trump, in a statement released Friday. “These cases raise significant constitutional issues.”In a statement, House Speaker Nancy Pelosi (D-Calif.) signaled disappointment that the high court’s decision to take the cases would mean further delay for the Democrats’ investigation into the president’s finances, but she said her caucus remains confident that the court will “uphold the Constitution, the rulings of the lower courts and ensure that Congressional oversight can proceed.”
“As the Courts have made clear,” Pelosi said, “there are no special privileges for information unrelated to the President’s official duties, but squarely related to Congress’s need for legislation and oversight.”
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One case involves Vance’s attempt to enforce a grand jury subpoena issued to the president’s accountants for eight years of Trump’s tax records.
A federal investigation of the president is one thing, Trump’s lawyers told the court, but “politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”
They added: “State and local prosecutors have massive incentives to target [the president] with investigations and subpoenas to advance their careers, enhance their re-election prospects or make a political statement.”
A district judge and a panel of the U.S. Court of Appeals for the 2nd Circuit ruled against Trump, saying Vance’s subpoena was proper and the president’s longtime accounting firm, Mazars USA, must comply.
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The House Oversight and Reform Committee won access to Trump’s financial records in a separate case. The committee said it is looking into possible conflicts of interest and irregularities in the president’s financial disclosure reports, and whether additional legislation is needed.
A panel of the U.S. Court of Appeals for the D.C. Circuit voted 2 to 1 that the subpoena followed legal precedents.
Trump’s lawyers objected. Under the lower court’s decision, “any committee of Congress can subpoena any personal information from the president; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information,” wrote Consovoy. “Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of presidents will become our new normal in times of divided government.”
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A third case also comes from the 2nd Circuit, where judges upheld Congress’s broad investigative authority, and ordered Deutsche Bank and Capital One to comply with subpoenas for the president’s financial information from two House committees, Intelligence and Financial Services.
The committees are seeking more than 10 years of financial records on Trump, his three oldest children — Eric Trump, Donald Trump Jr. and Ivanka Trump — and the president’s businesses.
The committees say they need the records as part of broad investigations into Russian money laundering and potential foreign influence involving Trump.
Trump’s attorneys have argued the committees’ moves are simply to harass the president and would serve no legislative purpose. The subpoenas could yield every debit card transaction and check written by Trump, his children and even his grandchildren, they said.
The most notable thing about all of these cases, of course, is the fact that the President has lost every court proceeding to date to block either Congress or prosecutors from gaining access to his personal and business tax records. Given the state of the law, this is hardly surprising. The Supreme Court has never to my knowledge ruled on the question of whether or not Congress can subpoena such documents as part of its general oversight and investigation duties, or whether state or local prosecutors can subpoena such records. It has, however, ruled on the issue of whether or not the President is generally immune from having to comply with subpoenas.
Those decisions, of course, came in United States v. Nixon and Clinton v. Jones. The Nixon case, of course, dealt with a subpoena from Watergate Special Prosecutor Leon Jaworski and his request for tapes of specific Oval Office recordings relevant to their investigation. In that case, a unanimous Supreme Court ruled that Nixon must turn over the tapes notwithstanding claims of Executive Privilege. In the Clinton case, the Court ruled 8-1 that the President did not have immunity to civil suits and their related subpoenas while in office. Given these precedents, it’s difficult to argue that a sitting President should be immune from complying with duly-issued subpoenas from Congress in connection with its oversight responsibilities and from s prosecutor conducting a legitimate criminal investigation.
The fact that the Court accepted this case, of course, means that the Administration will be able to keep the documents secret for another six months at least. This is because oral argument in the cases won’t be held until March, and we likely won’t get a decision until the end of the term in June. In the meantime you can access the documents in the three cases at issue — Trump v. Vance, Trump v. Mazars USA, LLP, Trump v. Deutsche Bank AG — at their respective SCOTUSBlog Information pages.
