Today, Donald Trump lost his claim of blanket presidential immunity from grand jury or congressional investigations. In Trump v. Vance and Trump v. Mazars USA, the president lost, 7-2, in front of the Supreme Court. Trump’s two handpicked justices, Neil Gorsuch and alleged attempted rapist Brett Kavanaugh, ruled against him. President Trump, whose administration is setting some sort of record for losing in court, lost yet again.
At issue in the two cases was whether Trump, through his accountants and bankers, had to turn over financial documents subpoenaed by Manhattan District Attorney Cy Vance and the House Judiciary Committee, respectively.
Breathless media coverage aside, these cases were never simply about the public release of those financial documents. They were never merely about whether Trump could be compelled to release his taxes before the November election, as many hoped. The critical question before the court was whether the president, by dint of being president, could ignore subpoenas he didn’t feel like responding to. The astounding position asserted by the Trump administration in this case—that the president of the United States is so far above the law that he can essentially throw subpoenas from the US Congress or prosecutors into the trash—was roundly rejected by the Supreme Court. Even though the vote was 7-2, all nine justices rejected Trump’s claim to blanket presidential immunity from legal inquiry.
That said, Trump’s legal strategies aren’t really designed to win in court (which is lucky for him, because, again, he keeps losing there). His strategies are designed to “win” at politics. And in this respect, the two cases might not prove to be such profound defeats for him after all. Nothing in the two Supreme Court cases will help people make the political case against Trump in November. That is disappointing to some. But the idea that the Supreme Court would rule in a way that would enable everybody to read Trump’s tax returns in the press before the election was always unrealistic.
Moreover, Trump isn’t done fighting. As I mentioned after the May 13 oral arguments for these cases, there are many legal ways to fight a subpoena. Trump’s theory that he could just ignore them instead of legally fighting them was rejected, which means that Trump is now free to do all the things a normal person does to fight a subpoena. Congratulations, America. We’re now back in a place where Trump has to use ordinary means to obstruct congressional subpoenas, instead of facially illegal means to do so. That only took 15 months.
In the Trump v. Vance case, that looming fight seems bound to be largely perfunctory. Writing for the majority, Chief Justice John Roberts found that “a state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard.” That means that Trump can make whatever arguments a normal citizen would make to shield his financial documents, and nothing more. Those arguments can be reviewed by lower courts. And when Trump loses in front of the lower courts, he will appeal again, perhaps all the way back up to the Supreme Court. But Trump will likely lose up and down the judiciary, because Trump has no good arguments to shield himself from a grand jury subpoena. The Vance case is over, except for the shouting.
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In Trump v. Mazars, Roberts did find a way to heighten the standard of congressional subpoenas when applied to a president. The standing precedent was that the executive branch had to simply comply with congressional subpoenas, but Roberts invented a new four-factor balancing test for when presidents seek to obstruct congressional oversight.
Roberts’s new standard weakens the congressional ability to check the president. That Trump can now try to make any kind of argument to avoid a congressional subpoena is a limited victory for Trump. But I’m not going to jump up and down on Roberts here for making up something new (that’s something the Federalist Society would do if they were intellectually honest, which they’re not), because a situation in which a president and Congress cannot come to an agreement about which records are necessary for lawmaking is largely unprecedented. Trump has climbed all the way up a tree to avoid these subpoenas, and instead of taking a chainsaw to Trump’s perch, as I would do, Roberts has offered Trump a ladder. Trump is not getting away; he’s just being given a way to come down slowly.
Trump will eventually have to turn over some of his financial documents to Congress; Roberts created a new way to figure out which ones. Unfortunately, “eventually” will almost certainly come too late for many people. For them, these cases were not about the simple application of the rule of law; they were about Trump’s efforts to hide from having to disclose financial information until after the election. There was hope that immediate compliance with Vance’s grand jury subpoena would lead to an indictment (and the public disclosure an indictment entails) before November. There was hope that immediate compliance with congressional subpoenas would result in those documents’ being leaked by Congress before the election. There was hope that, somehow, the public release of whatever criminality is likely buried in Trump’s financial documents would tip the scales in the upcoming election.
That hope was always unrealistic, and, frankly, Democrats have nobody to blame but themselves. Manhattan District Attorney Cy Vance has spent most of his time in office not looking into Trump Inc. and the Trump family but, rather, looking the other way. He started the investigations that led to this contested subpoena only last year—and he only did it amid rising political pressure. He’s been the DA since 2009, and Trump has been a fraud his whole life.
Even once he was pressured to start an investigation, Vance stopped as soon as Trump started the litigation that led to this case. There is currently no grand jury looking into Trump-related matters. In his statement after the ruling, Vance claimed that the investigation was delayed by Trump’s lawsuit, but there’s no reason the subpoena fight should have delayed the entire rest of the investigation. Trump’s taxes should be the final piece of the puzzle, not a threshold issue. A hard-charging DA might have been able to get a court to expedite the renewed challenges to the financial subpoenas and be in a position to indict soon. I doubt that Vance is speedy enough to use the power that the Supreme Court has just affirmed he has before the election.
The congressional subpoenas are even more maddening. The 116th Congress, in which the Democrats control the House of Representatives, convened on January 3, 2019. House Democrats subpoenaed six years of Trump tax returns on April 3, 2019. That three-month delay might not seem like much, but it was likely the difference between getting this case in front of the Supreme Court by October 2019 instead of May 2020. If the court had heard the case earlier, it’s possible it would have made this same ruling rejecting Trump’s claim to blanket immunity by January 2020—before the impeachment trial during which Trump’s claim to blanket immunity from congressional subpoenas was his only relevant line of defense to the charge of obstruction of justice. Just saying.
And while we’re here, I’ll point out that the House subpoena of former White House counsel Don McGahn has still not come before the Supreme Court for argument; that subpoena was not issued until April 22, 2019.
If the goal of these subpoenas was to force public disclosure of Trump’s financial records before the election, Democrats should have fired them out on their first day in power after the midterms. That’s not 20/20 hindsight. That’s putting on your reading glasses and looking at a calendar.
Happily, my ultimate wish is for Trump to be held accountable for his crimes—and, from that perspective, the court’s rulings are fantastic, assuming prosecutors have the will to continue pursuing Trump after he leaves office. Trump almost certainly has lied on his financial documents. Trump fixer Michael Cohen testified to those lies under oath. Should Trump lose in November, he is still on track to be prosecuted to the fullest extent of the law the moment he no longer commands the American military. The immunity from prosecution that I guess we’re all pretending he has is not a factor once he’s out of office. The law is coming for Trump, and the Supreme Court affirmed that Trump cannot hide forever.
He just has to be defeated in an election first. The Republican Senate will not remove him from office, despite his crimes. The Supreme Court will not force him to immediately comply with subpoenas before the election. To remove Trump, people are going to have to vote against him and all of his Senate enablers. And given the coronavirus and the Supreme Court’s unwillingness to embrace absentee voting, people are going to have to risk their lives to vote against him.
Voting is the only way we have left to influence the election. And if we do the right thing in November, Trump will find that his political strategy of delay is not a legal strategy for escape.
Nobody is coming to save us from Trump before the election—but nobody will come to save Trump from justice if he loses.
