Pandemics, protests and politics, oh my! Yes, there’s a lot driving the news cycles these days but pending decisions by the U.S. Supreme Court are even more ominous for the nation’s future. Later this month, or certainly this summer, the court could drop some bombshells right in the middle of the presidential election year battlefield that could affect the very democratic principles upon which the nation was founded. The court will rule on three cases involving subpoenas for President Trump’s tax returns and other financial records that will decide – in essence – if the Constitution’s separation of powers has any meaning and if a sitting president is subject to the rule of law.
Trump’s lawyers failed to block these subpoenas in the lower courts based on sound precedent established by separate Supreme Court decisions involving Presidents Richard Nixon and Bill Clinton. The court forced Nixon to hand over Oval Office tape recordings subpoenaed by the Watergate special prosecutor in 1974. And the court required Clinton to sit for a deposition in Paula Jones’ sexual harassment civil suit in 1997. Both of these cases were decided unanimously under conservative chief justices appointed by Republican presidents, with three justices appointed by Nixon ruling against him and two justices appointed by Clinton giving him thumbs down.
So, I was a bit surprised – but probably shouldn’t have been – that the Supreme Court decided to weigh in on these cases that seemed to be correctly decided by the lower courts. Is this court intent on establishing some limits of executive power and/or congressional oversight? Or, are conservative justices eager to shield Trump from damaging revelations of his finances? We should know soon.
One case involves subpoenas by the Democratic-controlled House Committee on Oversight and Reform for the president’s tax returns and financial records held by his accountants and business entities. Another, concerns subpoenas by the House committees on Financial Services and Intelligence for similar records at the president’s bank.
Subpoenas in the third case resulted from a grand jury criminal investigation by the New York City district attorney into payments made by Trump to a porn star and other women. It was issued to Trump’s accounting firm and also covers tax returns and financial records.
None of these subpoenas requires Trump to produce records in his possession, but his lawyers have vigorously challenged all of them.
In the cases involving congressional committees, the central issue is separation of powers. Congress has typically had broad oversight powers under the Constitution to investigate anything and subpoena witnesses and documents so long as its purpose is to draft legislation.
The president’s lawyers mainly argued that the congressional subpoenas are an unwarranted witch hunt to investigate Trump’s criminality and not intended for legislative purposes. They also contend that unfettered congressional subpoena power would result in constant harassment of a president by an opposing political party. (Do they mean like Republicans did to Bill Clinton?)
In the criminal case, Trump’s lawyers made the ludicrous argument that the president is not only immune from prosecution while in office, he can’t be investigated, even if he shot someone on Manhattan’s Fifth Avenue. They also caution that such subpoenas would allow state and local officials to politically harass a sitting president.
Attorney General Bill Barr’s Justice Department has joined these cases in support of Trump, although its lawyers didn’t contend that the president is immune from investigation.
Unquestionably, the foundation of our democratic republic is the rule of law. What’s at stake with these cases is the neutrality of the Supreme Court as an unbiased arbiter of the law. If it gives deference to a political party or a president over previously settled law, it will seriously weaken the foundations of our democracy, perhaps irrevocably.
Still, it’s possible the court will send the cases involving congressional subpoenas back to the lower courts for additional briefing by the lawyers or require that House Democrats provide more specifics on the legislation for which these documents are being requested. A delay would benefit Trump this election year.
But if the conservative justices decide that the court won’t intervene in disputes between the other two branches of government or that a president has broad immunity from congressional oversight, the Constitution’s separation of powers will be obliterated. And if they overturn the lower courts’ rulings with regard to the grand jury subpoenas, we will know that this court has put a sitting president above the law.
I don’t care if the president’s financial records show he’s not a billionaire. He lies about everything else, so why not his wealth? It doesn’t matter if he legally paid no income tax; lots of rich people avoid paying taxes. What all Americans need to know about, however, is Trump’s dependence on Russian money and his involvement in money laundering or other financial crimes, which I suspect he has committed.
Trump treats the rule of law with distain as president; it’s highly likely he did the same as a businessman. He seems to enjoy living on the legal edge. Trump isn’t restrained by the law; he uses it as a weapon. And if he gets another four years to appoint additional conservatives to the Supreme Court, he will attack the Constitution like any other of his opponents and attempt to eviscerate it.
So, vote in November as if your liberty and our democracy depended on it — because they do.