Commentary: In both tax record cases, Trump has lost badly

In the end, the high court rejected the argument that the president is shielded from investigation.

By Neal Katyal and Joshua A. Geltzer / The Washington Post

Presidents sometimes lose at the Supreme Court. But rarely do they lose as fundamentally — or as personally — as President Trump lost Thursday.

In deciding cases involving access to Trump’s personal financial records, the Supreme Court unambiguously rejected the core Trumpian view of the presidency as a complete shield from outside scrutiny. And the way forward looks even worse for Trump: The financial records Trump has long been so desperately fighting to hide are coming out, sooner or later; and indeed possibly before the election.

The cases decided Thursday stemmed from investigations into Trump by Manhattan District Attorney Cyrus Vance Jr. and by the House of Representatives. Vance had the best day at the court he could possibly have had: The only issue in his case, whether Trump as a sitting president is wholly shielded from Vance’s investigation, was rejected by the court; full stop. Along the way, all nine justices rejected Trump’s main argument: that the Constitution offers a sitting president an impenetrable shield from state investigators. Yes, there are more arguments to be made back in the lower courts, but that was always going to be the case. This was a clean and total win for Vance and a devastating loss for Trump, not just of the case but of his anti-democratic conception of the American presidency.

The court’s decision in the other set of cases stemming from House investigations might seem, on the face of it, less total a defeat for Trump. The court asked lower courts, which had upheld subpoenas from the House, to reconsider whether to enforce the House’s actions using a new standard that’s more sensitive to separation of powers questions that Trump raised. But make no mistake: The court totally rejected Trump’s central argument that the House could never obtain his personal financial records. Here, too, the court was overwhelming in finding Trump’s view of the presidency far too close to absolute monarchy to exist in America’s constitutional democracy. There’s more to be done in the lower courts in these cases, too. But Trump lost; and lost badly.

All of that raises the question: What now? Judges should ensure that these cases move quickly back in the lower courts. The big question has now been answered by the nation’s highest court: There is no wholesale shield available to Trump. The questions left are comparatively smaller ones. Indeed, in the Vance case, Chief Justice John Roberts Jr.’s majority opinion specifies exactly what those questions are, such as whether the particular subpoena issued by Vance is overly broad, issued in bad faith or in some subpoena-specific way unconstitutional; and it’s now a responsibility of the lower courts to hear arguments on them, then rule, swiftly. Even in the House cases, all that’s left is for lower courts to apply a standard that’s now been clearly articulated by the Supreme Court. The end result, the ruling seems to make clear, should be that the House gets at least some of the financial records it’s seeking.

The trial judge in the Vance case, Victor Marrero, has already proved he can move fast; Trump filed his last complaint about Vance’s subpoena Sept. 19, 2019, and Marrero rejected it in an exhaustive opinion just three weeks later. Given the thinness of the remaining arguments, this round should move even more quickly.

And in all of these cases, the Supreme Court would be within its traditional role to stay out going forward, which means there needn’t be lengthy appeals all the way back to the justices: They have answered the hard questions, and now the lower courts should be left to fill in the easier gaps left.

The grand jury process could also move very fast; the information can be delivered to the grand jury with action on indictments very quickly, even in a matter of days or weeks, not months. In Watergate, the time from the break-in to the first grand jury indictment was just three months; in Iran-Contra, it was four months from the U.S. Customs information being received to indictment; and in Enron, it was four months from bankruptcy to Arthur Andersen’s indictment. The federal courts resolved all of President Nixon’s subpoena challenges within a few months, and they resolved the 2000 election within 36 days.

The Vance case has already dragged on for years, but now, because of the Supreme Court’s decision, it can and should move very fast. With a looming election, the need to move quickly rather than at Trump’s preferred “all deliberate speed” is overwhelming. The American people shouldn’t have to vote for someone who very well may be indicted and face criminal process right after the election.

And that’s just about the election. Whatever the particular timing, Trump’s bad day at the court Thursday is an omen of even worse days ahead for him personally. In New York, Vance and his team of state prosecutors have more arguments they must make in the lower courts to obtain Trump’s financial records, but in the end, they should be getting the papers; and their overall investigation is moving forward. In Washington, the House will need to describe to lower courts its justification for seeking Trump’s records based on the court’s newly articulated standard, but in the end at least some of the House committees will meet that standard for at least some of the records; easily.

Thursday was Trump’s last, best chance to ensure that these financial records — records that include tax returns that any other modern president would’ve released as a candidate way back in 2016, records that Trump has fought tooth and nail in courts around the country to hide from investigators of various kinds — never saw the light of day. And Trump lost.

Whether it’s sooner or later, state prosecutors and the House will see Trump’s financial records, including whatever is in them that Trump is so desperate to hide. It’s highly likely that, at some point thereafter, so will the American people. New York and House investigators have waited long enough: Let’s hope judges fulfill their responsibility to move what’s left in these cases with the urgency they demand. In the end, it’s the American people who’ve waited long enough.

Neal Katyal, a former acting solicitor general, is a law professor at Georgetown and the author, with Sam Koppelman, of “Impeach: The Case Against Donald Trump.” Joshual A. Geltzer, a former Justice Department and National Security Council lawyer, is executive director and professor of law at Georgetown’s Institute for Constitutional Advocacy and Protection.

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