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.
decision
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