SCOTUS May Have Just Decided to Exempt Trump From the Rule of Law

SCOTUS May Have Just Decided to Exempt Trump From the Rule of Law

SCOTUS May Have Just Decided to Exempt Trump From the Rule of Law

During landmark oral arguments on Trump’s tax returns, conservative justices made clear they think the president is above the law.


On Tuesday, the Supreme Court heard arguments on two cases about Donald Trump’s tax returns and other key financial records. On the surface, the issue was whether Trump’s accountants, Mazars USA, as well as his longtime lender Deutsche Bank, had to comply with subpoenas for Trump-related documents issued by the United States House of Representatives and the Manhattan district attorney’s office. That’s a pretty big issue, given that Donald Trump has gone to unprecedented lengths to keep his business dealings secret, and given that the House is investigating foreign interference in our elections while the Manhattan district attorney, Cy Vance, is investigating financial crimes.

But to reduce this legal battle to another front in Trump’s ongoing efforts to be the least transparent and most corrupt president in American history minimizes what’s at stake in these two cases. What’s at stake is the very idea of a nation in which no single person is above the law.

A subpoena from the government is not a polite request. The government is not asking for a favor. A subpoena is an order from the government to hand over information it believes is relevant to an ongoing investigation. A person can’t just ignore a subpoena; they can’t treat it like a bible salesman knocking at their front door. They must answer it.

Unless that person is Donald Trump, apparently. Every other person in this country has to comply with a subpoena, whether it is issued by their local prosecutor or the Congress of the United States, but Trump argues that he, and he alone, is immune from this most basic function of the rule of law. That’s what is at stake in these cases: whether the president of this country, by sheer dint of his job title, is so beyond the reach of law that he can simply ignore a legal order that would bind any other person. This isn’t about whether Trump’s (likely fraudulent) tax returns ever see the light of day; this is about whether Trump is a textbook despot who only has to follow laws when he feels like it.

During the three hours of oral arguments on Tuesday, the Supreme Court’s conservative justices seemed to side with despotism. The case against Trump is airtight, assuming Trump is a normal human who can be constrained by such pedestrian forces as physics or the law. To side with Trump, the court must elevate him to the same monarchical status the US Senate did when they acquitted Trump of impeachment charges. It seems that the conservative justices are as eager to crown Trump as the Senate Republicans were.

Given what was at stake, one might have expected Trump’s lawyers to show up with some amazingly rigorous or technically deft legal arguments explaining why Trump can ignore the law. There are, after all, established ways for ordinary people or non-despotic rulers to fight government subpoenas. People often argue that a subpoena seeks documents or information that is privileged in some way, and the law recognizes all sorts of privileged information that does not need to be turned over to the government. Failing that, people often argue that government subpoenas are “overbroad,” which usually results in some information being turned over to the government while some is held back.

Trump’s legal team made none of these arguments. Instead, Trump’s lawyers argued in broad daylight that the reason Trump does not have to comply with the subpoenas is that being president provides him with a “blanket immunity” from answering subpoenas. They further argued that these subpoenas should be ignored because they “harassed” the president. According to Trump’s lawyers, Trump doesn’t have to answer subpoenas if it would be too “distracting” for him to do so.

These are not legal arguments. They are not arguments one would make or could make in defense of an ordinary citizen. As a legal proposition, it is laughable to suggest that some entirely routine operation of law can be suspended indefinitely just because some official doesn’t have time to follow the rules. Trump has lost this case in front of every lower court that has heard it precisely because his arguments make no sense.

But Trump lost in front of lower courts that were not controlled by conservative judges handpicked for their loyalty to the Republican agenda over the rule of law. The Supreme Court is controlled by conservatives who have no shame (or fear of reversal) when it comes to doing Trump’s bidding. As it is, the decision to entertain Trump’s legal foolishness has already done significant damage to the rule of law, because Trump has been able to use this fight to stall lawful investigations into his corruption.

During arguments, the conservatives on the court seemed poised to give Trump at least a partial victory. Justices John Roberts, Clarence Thomas, Samuel Alito, and alleged attempted rapist Brett Kavanaugh all embraced the term “presidential harassment” as if they were being fed notes from Trump’s Twitter feed. They repeatedly questioned lawyers representing the House and Vance’s office about how the president could possibly be expected to respond to subpoenas that, per Trump’s lawyers, were designed to harass or distract him from his official duties. As I remember it, only Neil Gorsuch maintained enough intellectual dignity to refrain from harping on the Trump-approved “harassment” theme and instead focused on whether there was any principle that could limit the House’s authority to subpoena the president (or anybody else) for anything at all.

For the most part, lawyers for the House and Vance struggled with these questions—Vox’s Ian Millhiser called the oral arguments a “disaster”—and, despite my best attempts, I struggle to understand why they had such trouble. There is no real limiting principle on what the House can subpoena. There is an entire legal canon about what constitutes valid defenses against the government’s near limitless subpoena power, and “presidential harassment” is not one of them. The conservatives justices were basically asking, “How do we blot out the sun?” and liberal lawyers kept playing along, trying to invent a giant sun blocker to appease them, instead of saying, “What kind of evil cartoon billionaire would try to block the sun?”

There is something about Democrats that makes them perpetually willing to accept the terms of the debate as defined by the most recent Republican who shouted at them. It’s frustrating, and it’s the reason Democrats always seem like they’re losing even when they have facts, law, and logic on their side. More than two hours into oral arguments, the lawyer representing the district attorney’s office, Carey Dunne, finally said that the “speculative mental distress” Trump may suffer as a result of these subpoenas is not a constitutional basis for him to ignore the subpoenas. Dunne’s line is the only one anybody should use to respond to the Republican whinging about harassment. President Snowflake cannot use the White House as a safe space to hide from the law. The end.

Despite the successful efforts of the House and Vance attorneys to walk into every trap the conservatives set for them, the day may not have been a total loss. I think the most likely outcome is that the Supreme Court will allow Trump to continue ignoring the subpoenas issued by the House but will order him to comply with the subpoena issued by Vance.

During his first question to Dunne, Chief Justice John Roberts previewed how I believe he will split this baby. He said that, while the House has an “ongoing relationship” with the president (and thus could arguably punish him for ignoring their subpoenas by engaging in legislative retribution), local prosecutors have no such relationship. Roberts asked if the standard for letting Trump ignore subpoenas should be “higher” when he’s ignoring a local prosecutor who has no other way to wrangle or deal with the president.

Roberts’s argument is, quite simply, bonkers. Again, I don’t accept the premise that Trump should be allowed to ignore subpoenas, and I certainly don’t accept Roberts’s suggestion that courts should not enforce congressional subpoenas because Congress can find some other way to be mean to the president. It’s like saying you can drink and drive in a Volvo because it’s kinda slow, but you can’t drink and drive in a Ferrari because nobody can catch up to you.

But I believe that Roberts thinks splitting the cases in this way allows him to appease Trump while not destroying the very notion of a chief executive who is subject to laws. I think Roberts cares more about The New York Times writing that he was “fair” than he cares about being fair or defending the institution of law against despotic overreach. And siding with the conservatives in one 5-4 decision while siding with the liberals in the other 5-4 decision is exactly the kind of both-sides catnip mainstream court reporters will lap up.

Trump should lose both cases, 9-0, and he should be admonished for wasting everybody’s time. But in a world with Brett Kavanaugh (who suggested that the Constitution wants presidents to be immune to investigations), Samuel Alito (who suggested that every subpoena was part of a long-con scheme by the Democrats to drive the president to distraction), and Clarence Thomas (who suggested that Congress doesn’t even have the authority to subpoena anybody, ever), we cannot expect a unanimous defense of the rule of law.

And we certainly can’t expect to see Trump’s tax returns at any point before the next election. Despite the breathless coverage of these cases, neither involves the public release of these documents. The House wants authorization to see Trump’s financial records as part of a number of investigations; Vance’s office wants to present the documents to a grand jury, which is sworn to secrecy. During the arguments, conservatives (mainly Alito) made snide comments suggesting that the real liberal plan was to get these documents and then leak them to the press. That’s not a legal argument, but conservative Supreme Court justices ripping lines of argument from Infowars clips is pretty much where we are in this country.

Trump has already succeeded in his goal of running for president twice without disclosing basic financial information. He has already succeeded in using the office of the president to shield himself from potential prosecution of his suspected financial crimes. Trump has already won. The only question now is how much the rest of us will lose.

We should expect decisions on these two cases in late June. The Supreme Court will then tell us how much more of our democracy must be sacrificed in the service of Donald Trump.

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