Sunday, July 12, 2020

Supreme Court Lets Trump Win While Losing

      Chief Justice John Roberts said many of the right things in his opinion for the Court upholding the subpoena that a New York grand jury has issued to get President Trump’s tax returns and financial records from his accountants. But Roberts made the mistake of observing Marquess of Queensberry rules in a knife fight with a notorious thug, Donald Trump, who has played dirty ever since he came of age in the anarchic jungles of New York real estate.
      In any ordinary case, the subject of a subpoena has every right to challenge the subpoena, document by document, issue by issue, until lawyers run out of arguments. But this is no ordinary case: this is a case investigating possible criminal wrongdoing by the President of the United States and the president has played the Court by running out the clock.
      One legal term comes to mind: instanter. That’s when this subpoena should be enforced, not weeks or months from now after a remand. Imagine, 46 years ago, that the Supreme Court, instead of enforcing the subpoena "forthwith," had let President Nixon hold on to the Watergate tapes until the next presidential election. In Trump’s case, that is the upshot of the Court’s weak-kneed if rhetorically forceful decision last week in Trump v. Vance [July 9].
      Trump’s tax returns should have been disclosed to the public, not to a secrecy-bound grand jury, four years ago, but the Supreme Court has no power to enforce the political norm every presidential candidate has followed since Nixon. Still, the justices might have taken note of that background when considering what to do now.
      Even apart from the political background, Trump abused the legal process by claiming an immunity that the Nixon Court rejected unanimously in 1974. On that issue, this Court, even with two of Trump’s appointees as part of a Republican-appointed majority, was again unanimous. The president enjoys no constitutional immunity from complying with a court-issued subpoena in a criminal case, the Court held, and no special entitlement to a heightened judicial standard before enforcement of a subpoena.
      One of the architects of that strategy, the longtime culture warrior Jay Sekulow, tempered last week’s celebrations for the rule of law by pronouncing himself and his client to be “pleased” that the day’s rulings “temporarily blocked” either Congress or the New York district attorney from getting Trump’s tax records. “We will now proceed,” Sekulow promised, “to raise additional constitutional and legal issues in the lower courts.”
      Note in that regard that Sekulow got no votes for his maximalist view of presidential immunity at the Supreme Court, nor earlier at the Second Circuit. For his part, the New York DA Cyrus Vance Jr. declared the ruling “a tremendous victory.” Vance noted that Trump’s legal tactics had delayed the investigation for a full year and promised that it would now be resumed “to follow the law and the facts wherever they may lead.”
      Trump himself fumed on Twitter, but his press secretary Kayleigh McEnany used the White House press room to declare the ruling “a win for the president.” Meanwhile, the Court was less generous to Congress in the other subpoena case, Trump v. Mazars USA, despite Congress’s well-established investigatory powers under Article I. The 7-2 decision in that case faulted the lower courts for giving too little weight to Trump’s “significant” separation-of-power objections that Congress had no legitimate legislative purpose in looking at his tax returns.
      The Roberts Court’s DNA comes straight from presidential power absolutists with no genetic disposition to defer to Congress. Thus, even while appearing to rule against the president, the Court also ruled against Congress by crafting a new four-part test for lawmakers to meet in seeking information from the president. From the Capitol Hill perspective, Dan Goldman, counsel to the House Judiciary Committee during the Trump impeachment, correctly observed on one of the cable networks, “The president escaped responsibility through litigation.”
      Trump has escaped responsibility for his actions ever since childhood, according to the unflattering portrait of his upbringing in the new book by his niece Mary Trump, Too Much and Never Enough. As his father’s favorite, Donald was never punished and never reprimanded for what became his lifetime habit of lying: vide his 16,000 lies as president, according to Fact-Checkers at The Washington Post.
      The Supreme Court has no role to play in trying to correct the character flaws that Trump developed from a dysfunctional upbringing, but it could have and should have taken account of the contempt that Trump displayed toward the courts and the rule of law throughout these two subpoena cases. Compare, for example, the complaints from some of the Court’s conservatives about the legal tactics used by death penalty lawyers — described by Alito in one case as “guerrilla warfare.” As to Trump’s dilatory tactics in the subpoena cases, Alito raised no concern, not even an eyebrow.
      Instead, Alito and his right-wing wingman Thomas both dissented in favor of some sort of special consideration for Trump in contesting the subpoena on remand. “We should not relegate a President to the meager defenses that are available when an ordinary grand jury subpoena is challenged,” Alito wrote. Or, differently phrased, the president is if not above the law, at the least not under the same law as anyone else served with a lawfully issued subpoena.

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