7/9/20:
President Trump wakes in a sour frame of mind. He can’t get a grip on the
coronavirus. The Supreme Court is about to render two important decisions in cases
involving subpoenas against him. The first regards a state request to see his tax
and business records. The second involves his bid to refuse compliance to a congressional
subpoena.
 |
Chief Justice John Roberts. |
___________________
“The public has a right to every man’s evidence.”
Chief Justice John Roberts
___________________
Mr.
Trump starts his day, as he awaits the news of the Court decisions, by doing
some serious tweeting. First, he defends his handling of the COVID crisis. “For the 1/100th time, the reason we
show so many Cases, compared to other countries that haven’t done nearly as
well as we have, is that our TESTING is much bigger and better.”
The virus keeps spreading,
no matter how fast and furiously the poor fool tweets. By day’s end, we have an
additional:
59,260 cases.
Trump
v. Vancethat
his “duties as chief magistrate demand his whole time for national objects.”
For
that reason, his attorneys claimed, Donald could not legally be served a
subpoena to produce his tax returns.
That
is, a president who has time to tweet 50,000 times, cannot manage to put
together requested documents, despite the assistance of multiple accountants. A
man who has spent 29%
percent of his days in office at private golf resorts cannot
be distracted from putting and driving and cheating on his score, to deal with a
subpoena. A man who devotes endless hours to watching TV, and ranting about
“Fake News,” is too busy to deal with a court challenge involving potential tax
evasion and breach of campaign finance law.
In
the end, the Court makes quick work in blowing Trump’s defenses to bits. The
decision is 7-2, with dissenters in actual agreement with the majority on several
key points. Chief Justice Roberts, in writing for the majority, notes that
previous chief executives, from James Monroe to Jimmy Carter, accepted that they
were “subject
to subpoena and have uniformly agreed to testify when called in criminal
proceedings.” In all previous cases, however, presidents had been involved in
cases involving federal crimes and investigations.
He lies “like most of us brush our teeth.”
Trump’s
lawyers claimed that this case, involving a subpoena from a New York State
prosecutor, was different. If presidents could be forced to answer subpoenas
from the nation’s 2,300 locally elected prosecutors, their ability to perform
their duties would be impaired. They would be subject to “diversion, stigma,
and harassment.” Trump’s lawyers, backed by political appointees at the
Department of Justice, who filed briefs in support, argued that a “heightened
standard of need” should apply. A president should only be asked to respond to
subpoenas in cases of…
Well, in
Trump’s cases, never.
After
all, the president had already dodged a subpoena from Robert Mueller for more
than two years.
Chief Justice Roberts blew up Trump’s first, second and third
lines of defense in the first sentence of his opinion. In our system of
government, he wrote, “the public has a right to every man’s evidence.” Since
the earliest days of the Republic, he wrote, “every man” has included the
President of the United States.
Yes, Roberts noted, a president’s communications as president
are “privileged” and rarely subject to exposure. In this case, the information
being subpoenaed related solely to Trump “in his private capacity and
disconnected from the discharge of his constitutional obligations.”
In common law, Roberts explained, the only exception
involving a duty to testify in response to subpoena had been in “the case of
the king,” whose “dignity” was seen as “incompatible” with appearing “under the
process of the court.” But, as Chief Justice John Marshall explained in 1807, “a
king is born to power and can ‘do no wrong.’ The president, by contrast, is ‘of
the people’ and subject to the law.” The case of Richard M. Nixon is cited
repeatedly in the Vance opinion, as is the case of Clinton v. Jones,
involving a matter of civil liability. The Court had previously ruled,
“unequivocally and emphatically” that “Presidents are subject to subpoena.”
The court did rule that the president’s legal
team could go back to the lower courts and file motions to have the document
requests narrowed. But we can now be sure that Trump is going to have to
cough up a stash of tax records. Given his long battle to keep them secret, it’s
highly likely that what they reveal will not be flattering. As
former U.S. senator Claire McCaskill put it recently, this is a president who
lies “like most of us brush our teeth.” The chances that he didn’t cheat on his
taxes are somewhere between zero and nil.
*
The
justices rightly sniffed out authoritarianism down.
THE DECISION in the second case, Trump v. Mazars, went
against the president in much the same way. In this case, Trump’s lawyers were
suing his accounting firm, to keep them from compiling with a congressional
subpoena for his tax records. This time, Trump’s defense rested on the argument
that Congress lacked a “legitimate legislative purpose” in seeking his
financial documents.
Once again, Chief Justice Roberts wrote the majority opinion.
First, Roberts dismissed the idea that “executive privilege” could shield a president’s
tax records, prior to the time he was elected (or since). Trump’s lawyers were
arguing for what would amount to blanket protection from congressional subpoena.
The justices rightly sniffed out authoritarianism and shot the argument down.
The idea that any chief executive could thumb his or (someday)
her nose at the legislative branch would, Roberts wrote, give “short shrift to Congress’s important interests in
conducting inquiries to obtain the information it needs to legislate
effectively.” The Court did hold that Congress might abuse its subpoena powers,
and that federal courts must be mindful of such danger. Therefore, the
courts should permit subpoenas that were “no broader than necessary.”
The Court further noted a number of other possibilities – where the
legislative branch might overstep its bounds – but remanded the case to the lower courts for
review, where the president’s legal team has met a series of defeats. Roberts
agreed that the president and his lawyers “could raise additional
constitutional and legal questions in the lower courts.”
So, not all hope for Trump was gone.
His team immediately made it clear. They would
be raising every question they could think of, including whether or not liberal
justices on the Supreme Court were part of a satanic cult, and practiced child
sacrifice and pedophilia in their spare time. Okay, I’m kind of joking there (but
see, my post for 8/20/20, and you’ll realize it’s not entirely a humorous
situation.)
In reality, the only consolation for the
president is that his attorneys have a real hope of stalling Congress and
making sure lawmakers don’t glimpse the president’s tax records until after the
November election.
POSTSCRIPT:
Adding insult to injury for the day, German Chancellor Angela Merkel clearly has
Trump in mind when she
compares her approach to handling the COVID-19 crisis to his.
“As we are
experiencing firsthand, you cannot fight the pandemic with lies and
disinformation any more than you can fight it with hate or incitement to
hatred,” she tells reporters.
“The limits of
populism and denial of basic truths are being laid bare.”
