While Nunes and Jordan sputter nonsense on national television in defense of Trump’s Ukraine extortion, the real action will be playing out behind closed doors. At their conference tomorrow, Supreme Court Justices will likely decide whether Trump’s finances will ever be dragged into the daylight.
Two cases seeking Trump’s finances are reaching the Supreme Court at the same time. A Manhattan grand jury has subpoenaed Trump’s tax returns from his accountants, Mazars. Trump filed a request for an injunction against the Manhattan DA, Cyrus Vance, blocking his investigation on Supremacy Clause grounds (Trump v. Vance). Judges have been unanimous so far in denying Trump’s request, and the 2nd Circuit’s decision in the case was particularly pointed.
Congressional investigators are also seeking Trump’s tax returns from Mazars under Congress’ practically unlimited statutory power to review tax returns (Trump v. Mazars). That case also moved quickly with only a single appellate judge, a recent Trump appointee, issuing a barely coherent dissent.
Trump filed appeals to the Supreme Court in both cases over the past week. He has requested a temporary injunction blocking the release of any subpoenaed records while the appeal is considered.
Justices requested a response brief from Congressional attorneys by 3 pm today (Thursday), a departure from the usual Friday deadlines. It is generally expected that the Justices will visit this matter in their Friday morning meeting.
Two questions might be answered by tomorrow. Will the Court deny certiorari, refusing to hear the cases? If no, will they grant the requested injunction. If the Court doesn’t make a decision on cert tomorrow than the injunction will almost certainly be granted.
Will the Court hear agree either of these cases? They shouldn’t, but given the prominence of the case they might.
Generally, the Supreme Court will only hear appeals in cases where there is a conflict of legal interpretation among the appellate courts, a serious appellate misinterpretation of the law, or to settle an issue of national importance. Although this case has significant implications, it lacks any material legal questions.
There is no grounds in either of these cases for the President to hide his tax returns. His theory in Vance is that the Supremacy Clause blocks a criminal investigation of the President, but that question isn’t even at issue in the case, at least not yet.
Manhattan’s DA is attempting to establish whether Trump committed a crime, apparently in relation to his porn star blackmail payoff. The question of whether the President can be charged is not yet at issue. A ruling against Vance wouldn’t merely invent a new concept of executive immunity, a blank check to commit crimes at will, it would bar any government in the US from even investigating whether a crime had been committed by a President. It’s no surprise that Vance has slid through judicial review faster than walrus shit on an iceflow. There’s just nothing there, short of replacing the President with a King.
Similarly, the legal issues in Mazars are entirely cut and dried. Trump’s lawyers have tried to argue that Congress cannot leverage its statutory power to review tax returns because of [insert a bunch of words]. What they settled on to fluff this absurd case were two empty, unsupported claims, that Congress can’t investigate a potential crime without launching an impeachment inquiry, and that the subpoena goes beyond Congress’ legislative authority. They cite no law, no precedent, and no Constitutional authority. And still Trump’s proxy on the DC Circuit copied and pasted it into a dissenting opinion.
It is extremely unlikely that the Supreme Court would dignify Trump’s specious arguments in these cases. However, they might do something almost as damaging. It only takes four Justices to grant certiorari. If the Court agrees to hear arguments in these cases, and doesn’t agree to expedite the appeal, we might not get a decision until next fall. These cases would be stalled until then, along with any effort to investigate and expose Trump’s financial crimes.
By granting certiorari, the Supreme Court could effectively negate the investigations into Trump’s crimes without issuing a single ruling on the law. Even if their decision went in its inevitable direction, it might be too late for investigations to cohere before the election. If Trump loses next fall, those investigations would evaporate as the political will to pursue them slipped away.
No matter what anyone says today in the impeachment hearings, we won’t know what was really happening with Trump, Ukraine and Russia without examining Trump’s finances. Four Justices may decide tomorrow whether we ever find out what happened to us.