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The Supreme Court just wimped out on Trump’s tax returns — and handed him a political victory

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- Commentary
U.S. Supreme Court nominee Judge John G. Roberts Jr. testifies before Senate Judiciary Committee during confirmation hearings to be Chief Justice. (Rob Crandall/Shutterstock)
David Cay Johnston
David Cay Johnston

A cowardly Supreme Court punted today on the criminal investigation into whether Donald Trump and his Trump Organization are major league criminal tax cheats.

The high court held that while Trump cannot shield his tax and business records from New York State prosecutors, the president is entitled to pursue procedural challenges. That could means months, even years, of delay in the criminal investigation by Manhattan prosecutors into whether Trump is a garden-variety tax criminal.

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In its weaselly Trump decision the Supreme Court stood yet again for the idea that you can get as much justice as you can afford, as I’ll explain below.

The high court also turned away three House committees seeking Trump tax and business records, again on narrow procedural issues that downplayed the substance of the matter. That ruling came despite a 1924 law that says the Treasury “shall” turn over such records on written request of one of the three committees’ chairs. That law also grants Trump the same power to look at anyone’s tax returns without requiring him to justify such requests.

Here the court relied on how the three committees sought to obtain the tax information and other records. Again, the Supreme Court’s decision favored procedure over substance. This is one of the ways that those who can afford lots of lawyers evade responsibility through delay.

The practical effect: The November election will be over before Trump’s tax returns and business records are turned over to Manhattan prosecutors. In the end, those records will almost certainly be turned over to the state grand jury — but not until after the November election when those facts matter most to our republic.

The legal effect: All nine justices agreed that the president is not immune from criminal process and has no rights to assert presidential executive privilege for actions undertaken when he was a private citizen, upholding precedents dating to 1807.

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Trump asserted absolute immunity, which all nine justices rejected, as was widely expected.

The pattern: Once again under Chief Justice John Roberts the Supreme Court has weakened law enforcement when it comes to elected officials.

Four years ago the court, in a Roberts opinion, tightly narrowed the grounds on which politicians can be prosecuted in graft cases, dismissing the conviction of Virginia Governor Bob McDonnell on bribery charges. In May the court unanimously dismissed all felony convictions in the New Jersey Bridgegate case, creating a much wider highway for corrupt conduct and abuse of office.

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All of these cases involved corrupt Republican office holders and aides.

Under Roberts the Supreme Court has essentially legalized bribery and other misconduct by public officials unless some party explicitly states that their intent is criminal. In essence unless prosecutors can show someone was so stupid as to say “I’m giving you this cash and in return you will do this specific thing for me,” there is no crime in the view of the Roberts court.

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The Trump case delays the court ordered, to allow further procedural hearings, stand in sharp contrast to the 1974 unanimous Supreme Court decision that President Richard Nixon had to immediately turn over his secret Oval Office tapes to Watergate prosecutors. Nixon resigned days later knowing the tapes would provide irrefutable evidence of his criminal conduct.

Cyrus Vance, the Manhattan district attorney, sought tax and business records dating to 2011. Trump claimed he is immune from any New York grand jury criminal for conduct before he took office in 2017. He also claims that Congress cannot investigate him without his permission.

No American court, including this one, has held that a president enjoys any immunities or privileges before taking office. But as a practical matter Trump won a delay that helps him politically and further weakens criminal enforcement of the law when the conduct of elected officials is at issue.

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The 7-2 decision and the dissents by Justices Samuel Alito and Clarence Thomas flowed from unanimous agreement among the justices that a president is “neither absolutely immune from state criminal subpoenas nor insulated by a heightened need standard” to enforce a subpoena of any president.

Chief Justice Roberts began the majority opinion by citing a 1742 British Parliamentary debate:

“In our judicial system, ‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts.”

Justifying Delay

Then he took a turn into an argument to evade immediate enforcement action as with Nixon and his secret Watergate tapes in 1974 and Bill Clinton and his civil case for sexual harassment in 1992.

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“This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable,” Roberts wrote. And with that, he and the other justices sent the case back for further proceedings that will continue for months, perhaps years.

Roberts and his confreres could have said the subpoena is valid and let it go at that. It was this decision — to assert on Trump’s behalf that he has a right to delaying actions — that should trouble all Americans concerned about the rule of law.

House Subpoenas

Roberts also wrote the majority opinion in the case involving three House committees seeking records of Trump’s tax returns. Trump gave Congress grounds to investigate his tax returns. Candidate Trump complained repeatedly that he was harassed with unfair IRS audits because he is a Christian. (Trump is not a Christian, as he says “revenge” is his only philosophy and that is explicitly rejected by the New Testament.) But his assertion of IRS abuse more than justifies inquiries by multiple Congressional committees who oversee the tax police.

Chief Justice Roberts wrote the opinion in this case as well.

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“The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority. The question presented is whether the subpoenas exceed the authority of the House under the Constitution,” Roberts wrote.

“We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding… and earlier today we extended that ruling to state criminal proceedings.”

But then Roberts again held that the cases should be sent back to the lower courts for more procedural review.

Significantly, Roberts did not distinguish the first of the three cases, in which the House Ways and Means chairman exercised his authority under Section 6103 of the federal tax code to obtain Trump’s tax information from the IRS confidentially.

The claims of the other two House committees are weak, but the Ways and Means chairman’s claim is as ironclad as it gets in American law. Only by conflating all three cases could Roberts gin up an excuse to let Trump delay compliance with the Ways and Means chairman’s request.

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It is for this reason that we should view the Roberts opinion as more political than legal since the language in that statute is crystal clear in saying the tax information “shall” be turned over on written request. There is no exemption or other qualifier in the relevant law.

Politicized Supreme Court

The opinion illustrates how political the court, which often issues 5-4 rulings, has become in the 15 years since Roberts became chief justice of the United States. Roberts could have held that Trump failed to fully avail himself of state-level procedural claims to quash the grand jury subpoena. And he could have held that the subpoenas to the Trump Organization, Mazars USA accountants and others could be enforced forthwith.

It appears that Roberts, a Republican, obtained the large majority, and two mildly dissenting opinions, at the price of delaying enforcement of the subpoenas until after the election. How much more political can the court get?

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In voting for delay Roberts and the rest of the court gave Trump a political victory that will allow him to hide evidence that will eventually come out.  My years of digging into Trump’s conduct make me confident that state prosecutors ultimately will establish that Trump has long engaged in felony tax fraud.

But it matters that this be established now, not after the next presidential election.

This is especially true for the records of Deutsche Bank, where it is reasonably suspected that the bank made massive loans to Trump only because Russian criminal elements secretly made corresponding deposits, or perhaps letters of credit, guaranteeing those debts. If that is the case it would establish that Trump is beholden to the Kremlin and Putin’s criminal gang, the Russian oligarchs, or other post-Soviet criminal elements.

Should Trump win a second term via a combination of the Electoral College, voter suppression and unlawful help from Russia and other foreign governments, the case will then become one can of procedural worms after another. That could have been avoided had the high court acted definitively today instead of with an eye to politics.

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The decisions today are no profiles in courage or even integrity, but rather in why we need fundamental reform of our Supreme Court, which as of now is exempt from the ethics rules that apply to all other federal judges, rules that are themselves weak.


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