The U.S. Supreme Court ended its term Thursday with two long-awaited decisions on who, if anyone, would get to see President Trump’s financial records and tax returns. The decisions struck a decisive blow in favor of the rule of law over unlimited executive power—a critical issue in 2020.
But that, unfortunately, doesn’t mean we’re going to see Trump’s taxes any time soon. This means that the public has to wait and trust the legal system to do its work—at a time when the administration has been working its hardest to corrupt the government institutions.
The good news is that one of the legal cases that’s unfolding right now as the subject of one Supreme Court case involves a state government. In a case led by Manhattan District Attorney Cyrus Vance Jr., over whom Trump and his loyalist Attorney General William Barr have no legal power, Trump’s financial documents will be turned over to a state grand jury for criminal investigation.
Deutsche Bank has already indicated it will surrender all its documentation on Trump’s accounts, and Capital One also is now required to hand over documents. They are two of the few major banks that have done business with Trump for more than a decade.
The larger takeaway from these cases is that no one is truly above the law.
Deutsche Bank in particular is under fire, having been credibly connected to laundering billions of dollars by the Russian mafia—with Trump’s real estate holdings likely to have been a safe haven for a lot of that money—and was recently fined $150 million for its links to Trump’s friend, serial sex offender/trafficker Jeffrey Epstein. (That Epstein died by suicide in federal prison before he could stand trial raises many concerns about the safety of Epstein’s partner Ghislaine Maxwell, who was arrested July 2. This may seem like a digression, but given all we’ve learned about Trump and his inner circle so far, these cases could very well be connected.)
The Supreme Court decision, Trump v. Vance, was decided by a 7-2 vote, with Chief Justice John Roberts joining the four liberal justices in the court’s opinion, and Justice Brett Kavanaugh writing a separate but concurring opinion that was joined by Justice Neil Gorsuch. Justices Samuel Alito and Clarence Thomas dissented.
The decision indicated that Trump could continue to raise constitutional challenges specific to individual subpoenas, and it’s not a stretch to think he will. The administration has shown all the signs of trying to stretch out legal proceedings as long as possible, so that no one will learn anything before the next election. The Supreme Court instead has ruled out any blanket immunity from oversight.
“Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Roberts wrote in the court’s majority opinion. “We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”
The other major case decided Thursday, Trump v. Mazars, though also with a 7-2 majority, with Alito and Thomas dissenting, was more of a mixed bag. Here, several congressional committees had subpoenaed Trump’s tax returns and financial records, and the law had appeared to be on their side.
Getting more transparency in government, however, is going to take longer
While tax return information is confidential by default (26 USC §6103), there’s an exception to the law that authorizes those congressional committees with jurisdiction over federal taxes to acquire federal tax return information of anyone. Congress passed the law to limit the president’s ability to improperly use private tax information, as then-President Richard Nixon was accused of doing in his second article of impeachment.
The difference here was that these were the taxes of not just anyone, but the president of the United States. And it’s not the fact that his returns are necessarily out of reach, but that Congress has to go the extra step to show it’s not violating the separation of powers in the Constitution.
“The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information,” Roberts wrote in the majority opinion.
In other words, Congress didn’t do it right. Go back and do it again.
The Supreme Court vacated the rulings of the U.S. Courts of Appeals for the D.C. Circuit and Second Circuit and remanded this case back to the lower courts.
But unless those lower courts decide to expedite these cases, Congress is unlikely to get a look at Trump’s tax returns before the November election.
Both decisions were drawn from the same three precedents: United States v. Burr (1807), which showed presidents may be subpoenaed during a federal preceding; United States v. Nixon (1974), which held a federal prosecutor could obtain information from a president despite assertions of executive privilege; and Clinton v. Jones (1997), which held that a private individual could sue a sitting president in federal court and compel discovery of evidence.
The larger takeaway from these cases is that, despite everything Trump has tried to do since 2016 to convert his office into the beginning of a royal dynasty, no one is truly above the law. This is one small victory, but it has the imprimatur of having the Supreme Court’s blessing, and therefore the power of precedent.
Getting more transparency in government, however, is going to take longer and will likely play out after the next election.
The next president also will likely be appointing some new Supreme Court justices. Two of the sitting liberal Supreme Court Justices, Ruth Bader Ginsburg and Stephen Breyer, are older than 80. There have been rumors Clarence Thomas is considering retirement (although he’s denied them), and Chief Justice John Roberts has suffered health issues, including seizures and a recent fall. Roberts, a staunch conservative by any other measure, has become the critical swing vote in institutional cases—he at least seems to care that the Supreme Court not become a partisan body.
Another Trump term will almost certainly mean that the high court will become locked into hardline conservatism for decades to come.
Given what we’ve seen over the past three-and-a-half years, with the rule of law and public accountability under near daily assault by the Trump administration and the Republican Party marching in lockstep behind him, the election may be our last shot to not just to take back the country, but to remain a democracy at all.
These most recent cases just raised the stakes for the 2020 general election, when the future of the United States is on the ballot.