Eyes on the courts today (Updated)

On Monday at 9:30 a.m., the Supreme Court justices are expected to release additional orders from their November 22 conference.

It is expected to include an order regarding President Trump’s request to stay an appellate court decision enforcing a subpoena to turn over financial records and tax records. As SCOTUSblog summarizes:

For the Los Angeles Times, David Savage reports that “[l]awyers for the House, citing the ‘rapidly advancing impeachment inquiry,’ urged the Supreme Court on Thursday to reject President Trump’s bid to shield his tax returns and financial records from congressional investigators.”

Robert Barnes for the Washington Post reported, Supreme Court precedents do not shield Trump financial records, House, prosecutors argue. On Friday, Adam Liptak for the New York Times reported, Justice Dept. Urges Supreme Court to Back Trump in Tax Records Case.

At CNN, Ariane de Vogue reports that “[a]s soon as Friday, the justices could decide whether to allow a subpoena to Trump’s long time accounting firm to go forward, while they consider whether to take up the president’s appeal in the case.” Richard Wolf and Kevin McCoy report for USA Today that the House is arguing that “if the justices agree to the delay, … legal papers from both sides should be submitted in the next few weeks so that the high court can consider them at its last private conference of 2019, on Dec. 13.”

The other court decision which is coming today is in the lawsuit seeking to enforce a subpoena against former White House counsel Don McGahn. Judge will rule by Nov. 25 in Don McGahn subpoena fight:

U.S. District Court Judge Ketanji Brown Jackson, in a one-paragraph order, promised a decision by Nov. 25 on the House lawsuit seeking to enforce a subpoena against Don McGahn, the former White House counsel who showed up repeatedly in the special counsel’s final report detailing President Donald Trump’s potential acts of obstruction of justice.

Jackson had sharp questions for Trump administration officials during oral arguments in the case on Oct. 31 and she ended the hearing telling the House and Justice Department lawyers that she’d consider an “expedited ruling” if anyone asked for one.

Tuesday’s request from House counsel Doug Letter indicates they’ll take Jackson up on her offer.

“Given that the House’s impeachment inquiry is proceeding rapidly, the Committee has a finite window of time to effectively obtain and consider McGahn’s testimony,” Letter wrote in a five-page request.

That window is indeed shrinking, with the House Intelligence Committee stacking up witnesses over the last two weeks in a series of rapid-fire public hearings.

Letter explained that the House Judiciary Committee planned to have its own impeachment hearings after the conclusion of Intelligence Committee’s efforts “and would aim to obtain Mr. McGahn’s testimony at that time.”

“Thus, there is an urgent need for final resolution of the matter now pending before this Court,” Letter added.

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In their request on Tuesday, Democrats said their “need for McGahn’s testimony has become even more pressing” since then, after House Speaker Nancy Pelosi endorsed impeachment proceedings that pivot off Trump’s attempts to pressure Ukraine into investigating his political opponents.

A source familiar with McGahn’s thinking said the former White House counsel’s testimony would depend on whether any decision from Jackson got stayed pending an appeal. “If it isn’t, he will comply. If it is stayed, he will await the decision of the higher court,” the source said.

Yeah, he’s a real patriot. After all the State Department witnesses who stepped up and did their duty as a citizen by testifying last week, at risk to their careers, this coward should step up and do the right thing.

Letter explained to Jackson that Democrats investigating impeachment were also pressing a federal appeals court for a speedy decision as it weighs the validity of a lower-court ruling that would give them the rights to see Mueller’s most sensitive grand jury materials.

In that case, Letter told the U.S. Court of Appeals for the D.C. Circuit during oral arguments on Monday that it needed access to the Mueller documents to determine whether the president lied or gave misleading written answers to the special counsel.

This was the three judge panel with two Republicn appointed judges who the court shouldn’t solve dispute over Mueller’s evidence. This is their job under Federal Rules of Evidence, Rule 6(E).

Will update later.

UPDATE via SCOTUSblog: The justices did not act on a request by President Donald Trump to block enforcement of a subpoena by the House of Representatives for the president’s financial records. A ruling on that request could come at any time.  The justices’ next conference is scheduled for December 6.

UPDATE: Late Monday the U.S. Supreme Court granted President Donald Trump’s request to stay a lower court ruling that required his longtime accounting firm to hand over his financial records to a Democratic-led House of Representatives committee. U.S. Supreme court extends block on Trump financial records dispute:

The unsigned order will remain in effect until after the Supreme Court decides whether to hear Trump’s appeal of the lower court ruling that directed Mazars LLP, Trump’s longtime accounting firm, to comply with the subpoena for the records.

Trump has until Dec. 5 to file his appeal. The action by the justices suggests that there is a good chance they will take up Trump’s appeal in his fight with the House Oversight Committee but does not guarantee it.

Reuters is reading too much into this. A stay of enforcement of a subpoena to allow time to file an appeal is routinely granted. It does not suggest anything substantive, one way or the other. The Court will decide whether to grant certiorari based upon the pleadings of the parties, which have not yet been filed.

The case represents an important showdown pitting the powers of the presidency against the authority of Congress, with Trump fighting doggedly to keep details of this finances private even as he faces an impeachment inquiry in the House.

Trump appealed to the Supreme Court after the U.S. Court of Appeals for the District of Columbia Circuit on Nov. 13 rejected his request that the appeals court reconsider its ruling the previous month in favor of the committee.

In a separate case, Trump on Nov. 14 asked the Supreme Court to her his appeal of another lower court ruling that directed Mazars to provide local prosecutors in New York Trump’s personal and corporate tax returns from 2011 to 2018 as part of a criminal investigation.

The Republican president’s lawyers have called the House committee’s subpoena to Mazars LLP illegitimate. The appeals court ruling, if left intact, would bring Democrats closer to gaining insight on Trump’s business interests and personal wealth.

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The appeals court ruling, if left intact, would bring Democrats closer to gaining insight on Trump’s business interests and personal wealth.

Both Trump cases are likely to be on a fast track, meaning that if the court decides to hear them, rulings would be due before the end of June, when the court’s current term concludes.

Bloomberg News adds, Supreme Court Signals Quick Action on Trump Financial Records:

The U.S. Supreme Court signaled it will move quickly to decide whether Donald Trump’s financial records must be turned over to a House committee, telling the president to file an expedited appeal and ordering the files kept private in the meantime.

The justices on Monday set up a briefing schedule that could let them decide by mid-December whether to take Trump’s appeal in the case, which stems from a House subpoena to his accounting firm. If they accept the case, the justices could rule by the end of their term in late June.

The five-sentence order said nothing about how the nine justices might rule, or even whether they will agree to hear the appeal. None of the justices publicly dissented.

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In the New York case, Manhattan District Attorney Cyrus Vance is investigating whether Trump’s business falsified records to disguise hush payments to two women who claimed they had sex with him before he took office. In an appeal filed last week, Trump contended that presidents have broad immunity from criminal investigations while in office.

Under an agreement with Vance, Trump asked the court to resolve the case in its current term. Vance’s office said it won’t try to enforce the subpoena until the Supreme Court acts.

The congressional case is Trump v. Mazars, 19A545. The New York case is Trump v. Vance, 19-635.

Just Security Blog adds, Understanding the Two Mazars Subpoena Cases Before the Supreme Court:

There’s a third, related case, too, which hasn’t yet reached the Court but might be there soon:  In August, the U.S. Court of Appeals for the Second Circuit (Hall, Livingston & Newman, JJ.) heard oral argument in Trump v. House Committee on Financial Services, which involves Trump’s constitutional challenge to subpoenas that two House committees issued to two of Trump’s banks (Deutsche Bank and Capital One), requiring them to turn over financial records of Trump and two of his children.  The court of appeals still has not issued its decision in that case, but when it does so the losing party almost certainly will quickly ask the Supreme Court to hear that case, too.

The financial records will not be available for the impeachment proceedings beginning in December, but this does not preclude Congress from continuing to investigate these matters on a dual track.

One thing appears certain: these cases will be resolved by the end of June.