Keep an eye on the U.S. Supreme Court today (Updated)

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Last week lawyers for President Donald Trump filed a petition for a writ of certiorari in Trump v. Vance asking the Supreme Court to review a decision by the U.S. Court of Appeals for the 2nd Circuit ordering the president to provide New York prosecutors with his tax returns.

This will be followed by a writ of certiorari in Donald J. Trump v. Mazars, LLP et al., asking the Supreme Court to review a decision by the U.S. Court of Appeals for the District of Columbia Circuit ordering that Mazars USA must turn over many of Trump’s financial records to the House Committee on Oversight and Reform.

On Friday, Trump’s lawyers were back at the Supreme Court, this time asking the justices to temporarily stay a decision by the U.S. Court of Appeals for the District of Columbia Circuit that upheld a subpoena for Trump’s financial records issued by House Democrats to Trump’s accounting firm, Mazars.

Amy Howe of SCOTUSBlog reports, Trump returns to Supreme Court, asks justices to intervene in dispute over financial records:

The subpoena at the center of the dispute came from the House Committee on Oversight and Reform, which wants the financial records as part of its investigation into the adequacy of current government ethics laws. The president filed this lawsuit to bar Mazars from turning over the documents, arguing that the subpoena goes beyond Congress’ authority because it does not serve a legitimate legislative purpose.

A federal trial court rejected this contention, and in October a divided three-judge panel of the D.C. Circuit upheld that ruling. The court of appeals concluded that the “public record reveals legitimate legislative pursuits,” rather than “an impermissible law-enforcement purpose behind the Committee’s subpoena,” and that the committee is investigating a subject on which it could enact legislation.

Arguing that “everything about this case is unprecedented,” Trump today asked the Supreme Court to block the D.C. Circuit’s ruling from going into effect on November 20 to give his lawyers time to file a petition for review of the lower court’s decision. If the D.C. Circuit’s ruling is allowed to stand, Trump complained in his 32-page filing today, “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. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of Presidents will become our new normal in terms of divided government—no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”

But the Supreme Court won’t be able to review the D.C. Circuit’s decision, Trump continued, unless the D.C. Circuit’s ruling is put on hold while Trump files his petition for review, because the committee plans to enforce the subpoena as soon as the D.C. Circuit’s ruling goes into effect – at which point Mazars will presumably turn over the documents that the committee seeks. “Respect for the office warrants a stay to prevent the President from suffering the irreparable harm of being denied further review because his case had been mooted through no fault of his own,” Trump told the justices. Moreover, Trump added, if his records are turned over, his confidential information may be disclosed, which is “the quintessential type of irreparable harm that cannot be compensated or undone by money damages.” Any harm or inconvenience to the committee from having to wait for the documents, Trump suggested, “pales in comparison” to the harm that Trump will suffer if the committee is allowed to enforce the subpoena.

Trump’s request goes to Chief Justice John Roberts, who handles emergency requests from the D.C. Circuit. Roberts can act on the request alone, but he will almost certainly refer it to the full court.

On Monday at 9:30 a.m., the justices are expected to release additional orders from their November 15 conference.

David Lurie at The Daily Beast explains, This Decision Could Be Bigger Than Impeachment:

Overlooked as the nation was riveted by the opening days of the televised impeachment proceedings was an appeals court decision that started a clock ticking for the Supreme Court to finally pick a side in what Attorney General Bill Barr has called a “scorched earth, no-holds-barred war” between Congress and a president who has categorically refused to cooperate with its investigations into his misconduct.

Unless the Supreme Court acts, Trump’s taxes —which he has fought furiously to keep hidden since beginning his campaign for the presidency— will be turned over to Congress as soon as Wednesday.

Thus, the nation will soon begin to learn whether the Supreme Court’s conservative majority is, as Trump himself hopes, composed of “Trump judges” willing to side with the president in cases where lower courts have shrugged aside the president’s weak arguments for stonewalling investigations into his misconduct.

* * *

Neither of these cases is expressly about Congress’ pending impeachment inquiry. Nonetheless, the Supreme Court’s response to Trump’s petitions could well signal if the court is willing to provide support and legitimacy for Trump’s sweeping declaration, yet to find acceptance in the lower courts, that the inquiry is “constitutionally illegitimate.”

Indeed, the two cases are reaching the court at a linchpin moment. Trump continues to withhold the testimony of his closest aides from Congress even as he asserts that the evidence of other witnesses should be ignored as “hearsay.” If the Supreme Court fails to support Trump’s categorical stonewalling, his claim that the impeachment inquiry is illegitimate, and with it his rationale for withholding witnesses and evidence, could lose much of its already weakening political, as well as legal, force.

The battle lines have been drawn sharply, both by recent Trump judicial appointees, as well as by Trump’s chief law enforcement officer, and assiduous protector, William Barr.

Only three members of the D.C. Circuit dissented from the full appellate court’s refusal to rehear the Mazars decision. Two of them were Trump’s own appointees: Neomi Rao and Gregory Katsas. Katsas, a former Trump administration official, absurdly asserted that Congress’ subpoena for Trump’s wholly personal business records (many of which predate Trump’s presidency) presents a greater “threat to presidential autonomy and independence” than the subpoena for White House tapes the Supreme Court upheld in United States v. Nixon. Just how obtaining presidential tax returns could threaten the autonomy of the president went unexplained.

In an extraordinary speech on Friday to the conservative Federalist Society, Barr offered a further explanation of what the president believes is at stake. The attorney general declared that the Democratic Party is now part and parcel of a “Resistance” force, engaged in a “war to cripple, by any means necessary, a duly elected government.” According to Barr, the “Resistance” force that now controls the House (that is, duly elected representatives) is rallying “around an explicit strategy of using every tool and maneuver available to sabotage the functioning of [Trump’s] administration.” Barr’s message is clear: Because Trump is the putative victim of an “incendiary” “insurgency” that has declared war on his presidency, the president must be afforded wide latitude in his efforts to resist the “Resistance”—including by outright defying Congress.

Neither of the cases now before the Supreme Court are squarely about the House impeachment investigation. The House issued its subpoena to Mazars before commencing the inquiry, and the lower court decisions addressed the power of Congress to obtain presidential records in connection with normal “legislative” oversight, not impeachment.

Yet Judge Rao (also a former Trump administration official), who dissented from the initial D.C. Circuit panel decision, has made it extremely clear that the president’s battle against impeachment was at the forefront of her mind. Rao endorsed Trump’s wholly baseless claim that he has “due process” rights in connection with the House impeachment investigation. Rao’s “due process” rationale gives rise to an implication that courts could well back Trump’s efforts to stonewall what the White House has declared to be a “constitutionally illegitimate” impeachment inquiry by refusing to enforce impeachment subpoenas on the ground that Trump’s “rights” have been violated.

In their Supreme Court stay petition, Trump’s lawyers echoed Rao’s logic, warning that, “[g]iven the temptation to dig up dirt on political rivals, intrusive subpoenas into the personal lives of Presidents” could “become our new normal in times of divided government.” It is particularly audacious for Trump—who faces impeachment for trying to extort a foreign country into manufacturing dirt on a political rival—to be warning the Supreme Court about the supposed dangers of Congress using formal, legal tools to obtain evidence regarding potential presidential misconduct. But to Trump’s partisans, such congressional intrusions simply cannot be tolerated, given that Congress is, in effect, a battlefield adversary.

In his Federalist Society speech, Barr complained about an “encroaching judiciary” that he claimed has improperly taken it upon itself to resolve “turf disputes between the political branches.” But, as the current litigation before the Supreme Court demonstrates, Trump has no problem asking the federal courts to step in to wholly insulate him from congressional oversight, or from the prying eyes of state law enforcement agencies. In fact, Trump’s clear hope is that he can enlist the Supreme Court as his ally in a battle with the “insurgency,” as his attorney general now calls a duly elected house of Congress controlled by a different political party.

As Nancy LeTourneau at the Political Animal Blog noted earlier this month, The Supreme Court Could Decide if the President Is Above the Law (excerpt):

[T]here is one step that must be taken to [grant certiorari]. Four votes from Supreme Court Justices are needed for the court to take the case. As Harry Litman notes, “accepting it for review would send a strong signal that a majority is inclined to reverse the decision of the appeals court.”

In other words, if the Supreme Court decides to hear the case, it would be a sign that the high court is willing to consider the idea that a sitting president isn’t simply immune from prosecution, but from even being investigated. That is why Litman recommends that they reject the case, because it would simply validate Trump’s extreme view that the president is above the law.

If the justices let the decision of the appeals court stand, the president’s tax returns would be made public very shortly. Paul Waldman summarized the questions that might be answered.

Everyone, Republicans and Democrats alike, agrees that what the returns reveal will be scandalous. Tax avoidance? Definitely. Tax evasion? Probably. Partnerships with shady characters, even criminals? No one will be surprised.

If the justices agree to hear the case, all bets are off and the Supreme Court could be on the verge of one of the most monumental decisions in the court’s history. As the legislative branch becomes engaged in the question of whether to impeach the president and remove him from office, the judicial branch could be on track to rule whether he is above the law.

I expect to update this post later today, no later than Wednesday.

UPDATE: AND there it is. CNN reports, Supreme Court stops Trump financial documents from going to House on Wednesday:

President Donald Trump’s financial documents won’t be released Wednesday, after the Supreme Court on Monday put on hold a lower court opinion that allowed a House subpoena to go forward.

The court’s action, known as an administrative stay, does not indicate how the court might rule on the legal merits of the dispute. It simply stops the clock to give the lawyers time to file their pleadings.

The court did not set a timeline when it will rule or release the documents, but has asked for the House to respond on Thursday to Trump’s request to block the subpoena.

Earlier Monday, the House said that it would endorse a 10-day delay to give the justices more time to consider legal arguments.

House General Counsel Douglas Letter suggested in a letter Monday he could file briefs on Friday outlining why a subpoena to Trump’s accounting firm for financial information should be allowed to go into effect.

Letter said he was acting out of “courtesy” to the court so the justices would have more time to consider the case and review arguments from both sides.

This involves only the motion for stay pending appeal. The Court’s next conference day is Friday, November 22.

According to the docket, a Response to Trump’s Writ of Certiorari is due December 18, 2019.




1 COMMENT

  1. Thanks for laying out so clearly what’s at stake in this Supreme Court decision. I’ll await their decision and your further comments with bated breath and pounding heart.

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