Thursday, July 9, 2020

UPDATED: A Mixed Day For Trump In Court--So Far

Jonathan Turley, as usual, offers a pithy summation on Twitter of the two SCOTUS decisions regarding tax and grand jury records pertaining to President Trump. The political bottom line appears to be that the can is kicked past the election. In both Trump v. Vance (tax records) and Mazars (Trump financial records subpoenaed by Congress) the cases are returned to the lower courts. In the case of Vance, there will be plenty of opportunity for Trump's lawyers to draw proceedings out:

Trump v. Vance is a 7-2 decision by CJ Roberts. As many of us argued, Article II and the Supremacy Clause do not contain an exclusion or higher standard for state criminal subpoenas for a sitting President. 
"A President may avail himself of the same protections available to every other citizen, including the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth." 
As I argued in the past, the President helped to create more binding precedent against future presidents with extreme constitutional claims. This bought time for Trump but at the cost of countervailing precedent. It will push the matter beyond the election but  at a high cost. 
There is no spin possible. This is a major and embarrassing defeat for the President who, against the advice of many of us, advanced an unsustainable claim of absolute privilege. 
Mazars looks like a win for Trump.  Roberts writes another 7-2 (something of a trend in these final decisions). While the Court does not sign off on the Trump demands, it vacates the lower court decision.  
... "The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President's information."
Where Trump went too far in Trump v. Vance, the Congress may have been equally extreme in its demands here. 

The Dem House "extreme"? You're joking, right?

... Mazars finds that the lower courts were too dismissive of valid concerns over the possible intrusion of such congressional into executive areas. This will, like the New York case, go back to lower courts.  This means that the cans get kicked down the road past the election. 
An interesting twist will be the new Congress in January.  These subpoenas will effectively die with the current Congress.  That would require the district court to move with considerable dispatch if it will beat the clock on the expiration.  That would be challenging. 
...You could end up with undead subpoenas, alive only for the dwindling remainder of the congressional term but dead in terms of any schedule that includes trial practice and appeals.  As I argued from the outset, I think Congress has the better argument but the worst schedule.

UPDATE: Red State offers a more sanguine view than Turley: SCOTUS Rules Against Trump Over Financial Records, But the President Walks Away the Winner. For example, they argue that CJ Roberts offers a road map for Trump to renew his challenge of the subpoena in New York:

What you are seeing here is an invitation by Roberts for the Trump administration to re-challenge the subpoena on different grounds. Though they may also lose that fight in the end, it will not be a fight decided before the election. In other words, Trump has successfully shelved this issue until it will no longer matter politically.

And, of course, the decision in the Mazars case re Congressional subpoenas is no more encouraging.

ADDENDUM: By the way, regarding all things legal pertaining to Trump, Turley also has an interesting blog out that examines the possibility that Donald Trump may have an actionable case of slander against Mary Trump.

Here's how things stand:

According to Mary Trump, Trump’s friend Joe Shapiro took the SAT for him: 
“Donald worried that his grade point average, which put him far from the top of the class, would scuttle his efforts to get accepted. To hedge his bets he enlisted Joe Shapiro, a smart kid with a reputation for being a good test taker, to take his SATs for him. That was much easier to pull off in the days before photo IDs and computerized records. Donald, who never lacked for funds, paid his buddy well.” 
The problem with this account is that Shapiro, who died of cancer in 1999, met Trump at the University of Pennsylvania, which (if true) would make it a bit difficult for him to have cheated on the test for him.  His widow, former tennis champion Pam Shriver, was outraged by the allegation against her late husband who she said was known as a person of the highest integrity. 
Unless she is lying (which I have no reason to believe), that brings us to the torts question.  Such an act would dishonest and has recently been prosecuted as a criminal matter in the infamous college bribery scandal which involved fraudulent test taking.  If made falsely, it can be a matter of defamation. ...

Turley then raises the problem that Shapiro is dead:

The problem is that Joe Shapiro is dead.  As we have previously discussed with regard to an infamous column by the Toronto Star, the common law rule is that “you cannot defame the dead,” which of course means in practical terms that you can defame the dead. Once again, I have long been a critic of that rule, here.  Publishers and movie producers often wait for figures to die to have full license to defame them with no recourse to the family. 

On the other hand, Donald Trump is very much alive, and as litigious as ever. Turley goes through all the ins and outs. Turley admits that these cases are always difficult, but believes that Trump has a compelling case. What he'd really like to see is this:

[Trump] would have to prove that his niece had “actual malice” where she had actual knowledge of the falsity of a statement or showed reckless disregard whether it was true or false.  The failure to confirm these facts of when the two men first met would be a compelling claim despite the high burden created by the Supreme Court. 
This is why the story is so important for reforming this rule.  If President Trump were to sue, Shriver could join in the action and separately challenge the common law rule.  We could then finally have a substantive debate over the rule that you cannot defame the dead.

Highly recommended for a fun legal read.


  1. More Roberts kicking the can down the road.

  2. How could Ginsberg have not been pressed to recuse herself from these cases, given her 2016 diatribe on DJT's taxes?

  3. Turley may be the most honest liberal since the death of Christopher Hitchens. (Dershowitz may be a contender as well.)

    I still do not see how Congress can subpoena individual taxpayer records (president's or or anybody else's) without it it being critical to oversight (which doesn't apply to Trump's records before he was POTUS) or in relation to legislation under consideration (which should never apply to just one individual's tax records; it could apply to a group of similar taxpayers' records, but the identity of the taxpayer is not needed for that purpose and should be anonymized for the sake of taxpayers' privacy.)

    And if the subpoena does not fall into those two areas, then Congress should not be able to obtain taxpayer records, as Congress is not bestowed with any general criminal investigatory power, let alone the power to arbitrarily search through taxpayer underwear drawers on a whimsical fishing expedition. Otherwise, Congress can harass, vex, and wear out individual citizens with never-ending subpoenae for personal or private records based on virtually no standard at all. A subpoena that does not have a substantive predication standard is, in effect, no different than a "general warrant," one of the articulated grievances ensconced in the Declaration of Independence as a justification for our separation from Great Britain.

    Or so it seems to me.

  4. Yeah, no different than a general warrant, or an investigatory Bill of Attainder.
    And, Congress is not bestowed with any general criminal investigatory power, and isn't subject to any investigatory power other than of specific criminal acts. And, it has such a long sordid history of abusing its general investigatory powers (e.g. in J. McCarthy's heyday).
    And, it's not subject to term limits, so we end up with a de facto Congressional tyranny.

    1. In light of the above, it's tragic that DJT instead stressed a bid for absolute privilege, instead of stressing a bid for all citizens' immunity from witch hunts.

  5. I don't even see why the Grand Jury in New York has a right to see them either. They are suppose to investigate crimes, not poeople. What crime are they investigating?

    Rob S

    1. No doubt Trump will be arguing that some more.

  6. Trump being President

    > What crime are they investigating?

  7. Both decisions are the correct ones. I disagree with Turley, though, on his characterization of Trump's defense in the Vance case- there nothing wrong with letting the court define the limits to a president's immunity. Sure, it binds future presidents, but it is best to get this decided right now. I especially like that it binds the 4 liberals who will, no doubt, be forced to reverse themselves in the future to protect a Democrat president.

    As for the returns themselves, it should be obvious that Trump's enemies have had them all along. I mean, literally dozens, or probably hundreds, of people at the accounting firms, legal firms, and the various departments of revenue have had them the entire time, and would have leaked any damaging details if they existed. Since these are returns not prepared by Trump or his family themselves, I think it all but certain that the returns are utterly spotless since it would be the accountants and the lawyers who would be legally and financially liable, and I assume none of them are stupid enough to break the law on such a high profile tax return that is probably audited in detail every single year.

    1. What's your view on the Oklahoma decision? I'm starting to wonder about Gorsuch.

      In effect, the court seems to have kicked some of this over to Congress. But today's and any future Congress strikes me as more than ready to give away the rest of the state.

    2. I agree with Roberts' dissent--at some point you need to go with the facts as they've been for so many years. This decision potentially creates many practical problems of public safety.

  8. Fool Sullivan filed an appeal to an en blanc review of decision. How can he file a appeal to a decision when he is not a party to case?

    Rob S