Lots of news today thanks to the SCOTUS rulings in the Trump tax cases. Let’s take a look at some of the big questions coming from these decisions:
Where does this leave Trump’s claims of “absolute immunity”? Basically, it destroys it. The Roberts-written opinion in the Vance case roundly rejected Trump’s claims that the President essentially can’t be bothered to comply with subpoenas. Relying on rulings going back to 1807, Roberts wrote that, in general, the President has no special privilege to reject any subpoena, although his opinion does note that on a case-by-case basis, there may be grounds for challenging subpoenas in specific instances. The kicker, though: the President does not have any special immunity that is not available to any other citizen and can not rely on solely on the office to challenge subpoenas.
Will we get to see Trump’s taxes? These decisions do not release Trump’s taxes or financial records to the public, only to New York State and Manhattan prosecutors. Only if they are leaked to the media or online–which may happen from a source in politics, in one of the legal teams involved in the case, or perhaps even by Trump himself (to get ahead of the narrative) will we see this information.
It *is* possible, however, that this information may be included in a future court filing.
How does this impact the election? Unknown at this point. This is definitely a damaging day for Trump, but because the information won’t be released to the public–where millions of eyes can scrutinize the documents–it might have no immediate impact on voter enthusiasm or preference.
But–and this is a big BUT–it’s completely possible that prosecutors from New York may file charges after reviewing a single year of Trump’s financial information, subject to additional charges later. (It would require a superhuman effort, however, given the time needed to comply with the subpoena and for prosecutors to review the huge volume of documentation.) But if that happens, all bets are off.
Did Congress lose its oversight role? SCOTUS kicked the Mazar’s case back to the lower court, saying that the court may consider issues of separation of powers in its decision, so the outcome of this case is still up in the air.
But the Roberts-written opinion is clear that the Legislative Branch has the “indispensable” power to secure information needed to consider outstanding legislation. Executive privilege is not universal, Roberts noted: “That protection should not be transplanted root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.”
The question here still lies in whether the Congressional subpoenas were for legislative purposes or law enforcement, which is the purview of the Executive and Judicial branches. The Court made no ruling on this, deferring to tradition that these types of cases have been historically worked out independently between the Legislative and Executive branches.
Roberts also notes that a court should look at whether “a subpoena advances a valid legislative purpose. The more detailed and substantial, the better.” This hints that a more specific subpoena would have passed muster.
Finally, Roberts notes that there’s not a whole lot to go on here: “Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.”
In the big picture, no, this does not undermine Congress’s oversight role. In the narrow picture, it puts the burden of showing the pertinence of the subpoena to the President on Congress for this case and in the future.
How does this reflect on the Court? In a SCOTUS that has two Trump nominees seated, some pundits thought their votes were slam dunks for pro-Trump arguments. They were wrong. Both Gorsuch and Kavanaugh voted with the majority in these cases, demonstrating an independence that will likely make Trump fume. What these cases show, however, is that at least seven Justices will sow their oats to assure an independent judiciary. You may not like future votes from Gorsuch or Kavanaugh, but they have shown–as Roberts repeatedly has–that they will not cave to Trump.