Taxing decisions – How will the Supreme Court rule in the fight over Donald Trump’s taxes? | United States


SINCE 1976 every American president has willingly made at least some tax information public—and other than Gerald Ford, who released only summaries, all have shared at least one year of their returns with the public. Donald Trump has repeatedly promised to release his, too, but nearly three years into his presidency, the public has seen only two partial returns that have been leaked to the press. No law requires presidents to publicise their taxes. But legislators in Congress and prosecutors in New York have been clamouring to scrutinise Mr Trump’s financial records for signs of potential misdeeds. Federal courts have given the green light to their subpoenas. Showing no sign of relenting, in recent days Mr Trump brought his battle to keep his books closed to the United States Supreme Court.

The two cases now in the laps of the nine justices both involve requests directed to Mazars USA, Mr Trump’s accounting firm, for eight years of his personal and business financial records. Each case presents the Supreme Court with a separation-of-powers quandary—how to adjudicate a dispute between branches of the federal government in Trump v Mazars; and between the president and state prosecutors in Trump v Vance.

Vance was the first to reach the justices when Mr Trump’s personal lawyer, William Consovoy, filed a petition on November 14th. The case is named after Cyrus Vance, the Manhattan district attorney investigating, among other things, $130,000 that Michael Cohen, Mr Trump’s former lawyer, paid to Stormy Daniels, an adult-film actress, to keep an alleged sexual tryst with Mr Trump secret. Mr Cohen’s role in the hush-money payment landed him in prison for violating federal campaign-finance laws. Mr Vance says he needs Mr Trump’s financial records from Mazars stretching back to 2011 to determine if the arrangement, and a similar one with Karen McDougal, may have broken New York state law. If the Trump Organisation listed reimbursements for the payments as legal expenses, for example, Mr Trump could be charged with falsifying business records.

After Mr Vance subpoenaed Mazars in August, Mr Trump sued to shield his records. On October 7th he lost in a federal district court. Federal courts are typically barred from blocking state criminal investigations, Judge Victor Marrero wrote, and Mr Trump’s “extraordinary claim” that presidents enjoy “absolute immunity from criminal process of any kind” entails a “virtually limitless” privilege that runs counter to “the nation’s constitutional plan”.

On November 4th a unanimous three-judge panel at the Second Circuit Court of Appeals affirmed the crux of Judge Marrerro’s ruling. But the judges emphasised that their decision was reached on narrow grounds. In reviewing Mr Trump’s claim to “temporary absolute presidential immunity”, the Second Circuit left for another day whether presidents should have immunity from formal criminal proceedings while in office. It decided only that “after reviewing historical and legal precedent” the scope of presidential immunity is not so wide that it bars “the enforcement of a state grand jury subpoena directing a third party to produce non‐privileged material, even when the subject matter under investigation pertains to the president”. In other words, prosecutors can collect evidence from third parties they need for an investigation into presidential mischief even if chief executives might be immune from indictment and prosecution—and may not be required to produce evidence themselves—while in office.

Mr Trump’s lawyers say this position is “unimaginable”. Permitting state and local prosecutors to shower a president with a storm of subpoenas “interferes with the president’s ability to execute his duties” and is “irreconcilable with our constitutional design”. That the subpoena was issued to Mazars and not to Mr Trump himself “does not alter the calculus,” the petition reads. “If it did, every local prosecutor in the country could easily circumvent presidential immunity.” The president’s lawyers call the request for the records “politically motivated” and argue that sitting presidents should be “categorically immune from state criminal process”.

A similar argument underlies Mr Trump’s petition in Trump v Mazars—the case asking whether the oversight committee of the House of Representatives may have access to the same records Mr Vance requests. Congressional Democrats sought the financial documents in April to determine if the president may have broken the law, failed to disclose conflicts of interest or violated the Emoluments Clauses—anti-corruption rules in the constitution. More insight into the president’s behaviour, legislators said, would help them develop legislation to tighten ethics rules. But permitting this kind of inquiry, Mr Trump’s lawyers told the justices, would unleash cynical legislators to “subpoena any personal information from the president” they want. Allowing House Democrats to “dig up dirt on political rivals”—co-opting a phrase Mr Trump’s opponents use to describe his actions in the Ukraine affair underlying the impeachment inquiry—would make partisan intrusiveness “our new normal in times of divided government”.

Mazars reaches the Supreme Court through the federal district court of the District of Columbia and a three-judge panel of the Circuit Court of the District of Columbia. Mr Trump lost in both venues, with a 2-1 vote at the latter. On November 13th, the DC Circuit voted 8-3 to deny the president’s request to rehear the case “en banc” as a full court. Only 48 hours later, the president asked the Supreme Court to block that ruling for the time being while Mr Trump prepares a full appeal.

Unanimous Supreme Court decisions involving Presidents Richard Nixon and Bill Clinton—permitting Congress to subpoena Mr Nixon’s tapes and allowing Paula Jones to sue Mr Clinton for sexual harassment while he was in office—may make a sweeping cloak of immunity for Mr Trump a tough sell. The slippery slope and presidential distraction claims in Vance seem especially weak, as the Manhattan prosecutor seeks records to look into plausible accounts of wrongdoing. If avoiding public scrutiny of his records is among Mr Trump’s worries, he has little to fear for now: the documents would remain under seal unless a public trial takes place—and that would be only after Mr Trump leaves the White House. Mr Consovoy probably did not help his case when he told the Second Circuit in oral argument that even if Mr Trump shot someone on Fifth Avenue in New York City (as the president himself has mused), police would be barred not only from arresting and charging him but from even investigating the incident while he is president. This interpretation of presidential immunity allows chief executives literally to get away with murder.

Mazars raises a different issue that, for some judges on the DC Circuit Court, puts the congressional subpoena under a cloud. In her dissent, Judge Neomi Rao dismissed the notion that the House committee wanted Mr Trump’s records to pursue legislative goals. The actual impetus for the subpoena, wrote Judge Rao, a recent Mr Trump appointee, was to look into the president’s misdeeds. But because the committee made no mention of the impeachment power in its subpoena, it failed to provide an adequate justification for acquiring the records. Some Supreme Court justices may be inclined to sink the subpoena for that reason, which raises the question: as the House has now passed a resolution authorising the impeachment inquiry, why not reissue the subpoena under the House impeachment power, and eliminate the most prominent legal argument in Mr Trump’s favour?

The justices’ initial consideration of Vance and Mazars has been accelerated . On November 18th, the court granted a stay temporarily preventing Mazars from shipping bankers’ boxes to the House Democrats. But Mr Trump still needs four justices to agree to consider his case—as he does in Vance. Mr Vance’s brief in opposition to Supreme Court review is due on December 18th. By mid-January, private discussions among the justices on whether to hear both cases could wrap up. If they decline Mr Trump’s request to hear one or both of the cases, Mazars will promptly forward the documents to the Capitol, to New York investigators, or both; if they agree to take them, oral arguments could be scheduled for April with final decisions in June.

Alternatively, though less likely, the justices could bide their time before deciding whether to take on these explosive matters. With some of Mr Trump’s more controversial policies—his Muslim travel ban, for example, and his decision to end DACA, Barack Obama’s protections for immigrants brought illegally to America as children—the Supreme Court has opted for an unhurried path. With impeachment bogging down Washington, DC, and an election looming, a delay may seem tempting. That would be just fine with Mr Trump: the longer the justices tarry, the longer his books stay shut to prying eyes.

Editor’s note (November 18th): This article was updated shortly after publication to reflect the Supreme Court’s grant of an administrative stay to President Trump’s lawyers in Trump v Mazars.

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