The justices have gone out of their way to tee up a conservative wish-list of cases on such topics as abortion rights, gun rights, and presidential power. Meanwhile, President Trump plans to ask the justices on Thursday [Nov. 14] to reverse the federal appeals court decision to enforce a New York prosecutor's subpoena for Trump's tax returns and financial records for use in a state criminal investigation.
The ruling by the Second U.S. Circuit Court of Appeals in the subpoena case, Trump v. Vance, shredded all of Trump's arguments to block the subpoena issued by the office of the Manhattan district attorney, Cyrus Vance Jr., for Trump Organization records held by Trump's accounting firm, Mazars.
Vance says the state grand jury needs the records to investigate possible criminal violations by Trump and his businesses, but Trump's lawyers argue that presidential immunity protects him not only from indictment but also from criminal investigation at all. That position, backed by Justice Department lawyers, contradicts the Supreme Court's decisions in two previous presidential immunity disputes.
The Court's unanimous decision in the Watergate tapes case, Nixon v. United States (1974), upheld the special prosecutor's subpoena of Nixon's Oval Office tape recordings in the face of an executive privilege claim. Later, the Court ruled in Clinton v. Jones (1997), also unanimously, that a president has no immunity from being forced to testify in civil litigation relating to conduct before taking office.
The Second Circuit's ruling, issued on Monday [Nov. 4], cites those decisions while emphasizing that the subpoena directed to Trump's accountants requires no action by Trump at all. The appeals court panel included three Democratic appointees, with the 34-page opinion written by the court's chief judge, Robert Katzmann, who is widely admired as a thoughtful and scholarly jurist.
In a footnote, Katzmann noted that six previous presidents, dating back to Jimmy Carter, voluntarily released their tax returns to the public with no evident impact on their performance in office. Katzmann also emphasized that the subpoena seeks business records unconnected to Trump's presidency and thus implicates executive privilege not at all.
Katzmann took pains to avoid ruling on an ultimate issue in the case: whether the president is subject to criminal indictment at all while in office. "Even assuming, without deciding, that a formal criminal charge against the President carries a stigma too great for the Constitution to tolerate," Katzmann wrote, "we cannot conclude that mere investigation is so debilitating."
In their arguments, Trump's private counsel and Justice Department lawyers noted the oft-quoted Office of Legal Counsel (OLC) opinion written in the Watergate context in 1973 that the president is not subject to criminal prosecution while in office. Katzmann noted that the OLC opinion and a later DOJ memorandum in 2000 did not address the narrower issue in Trump's case: whether the president could claim immunity from investigation. In any event, Katzmann said that both issues were for courts to decide, not an executive branch agency.
Trump's private counsel, Jay Sekulow, promptly vowed to take what he called the "constitutionally significant" issue to the Supreme Court. But one leading constitutional law expert, Harvard law professor Laurence Tribe, described the appeals court decision as "unmistakably correct" in an appearance on the cable news channel MSNBC and saw no basis for the Supreme Court to review it.
Consider, however, these three cases that the Court has already agreed to hear despite factors that ordinarily would leave them on the cutting-room floor:
Gun rights. The justices will hear arguments in New York State Rifle and Pistol Association, Inc. v. City of New York on Dec. 2 even though the city argues the case is moot after it amended the narrow ordinance at issue. The case gives the Court its first clear shot to expand Second Amendment rights and limit local and state gun safety laws after the 5-4 decision in District of Columbia v. Heller (2008) to bar local laws banning possession of handguns.
Abortion rights. The Court is likely to hear arguments in February in Louisiana's effort in June Medical Services L.L.C. v. Gee to reinstate an abortion-related law comparable to a Texas law struck down by a 5-3 vote four years ago. The law requires physicians performing abortions to have admitting privileges at a hospital in the area. Anti-abortion forces hope that with two new justices, Neil Gorsuch and Brett Kavanaugh, the Court will depart from its decision in the Texas case and give states more leeway to regulate abortion clinics.
Presidential power. The Court is also likely to hear arguments in February in a politically charged dispute over the single-director structure of the new Consumer Financial Protection Bureau (CFPB), as upheld so far by two federal appeals courts. The plaintiff in Seila Law LLC v. Consumer Financial Protection Bureau argues that the decision by the Democratic-majority Congress to vest the new agency's power in a single, tenure-protected director instead of a multimember commission unconstitutionally intrudes on presidential power.
Given these three somewhat improbable cert-grants, it may be treacherous to predict that the Republican-appointed justices, all of them deferential to presidential power in previous cases, will pass up Trump's appeal on the subpoena once filed. So, as Trump is wont to say, "we will see what happens."
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