US President Donald Trump (Spencer Platt/Getty Images)

Supreme Court temporarily blocks subpoena for President Trump's tax returns from House Democrats

The court issued a temporary stay on a ruling that requires Trump's accounting firm to turn over his tax returns


Shira Tarlo
November 19, 2019 5:17PM (UTC)

The Supreme Court on Monday temporarily blocked the enforcement of a subpoena for President Donald Trump's long-sought tax returns, allowing itself more time to decide whether to take up a case that will test the separation of powers outlined in the Constitution.

Chief Justice John Roberts put on hold "until further notice" a lower court's ruling which compelled the president's longtime accounting firm, Mazars USA, to turn over eight years of Trump's personal and business financial records to the House Oversight and Reform Committee.

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The president's lawyer, William Consovoy, told the Supreme Court that under the lower court's decision, "any committee of Congress can subpoena any personal information from the president; all the committee needs to say is that it's considering legislation that would force presidents to disclose that same information."

House General Counsel Douglas Letter told the Supreme Court that lawmakers on the committee would oppose Trump's motion but agree to put the ruling on hold temporarily "out of courtesy to this court."

Roberts said in his short order that the House’s opposition to Trump's filing should be filed by Thursday.

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The case, which dates back to April, is one of two at the Supreme Court in which Trump is fighting to shield his personal financial records and tax returns. The president has also asked the court to review a ruling of the U.S. Court of Appeals for the Second Circuit, which said roughly the same materials must be turned over to state prosecutors in New York.

The latter arises out of an investigation headed by Manhattan District Attorney Cyrus Vance Jr., who subpoenaed Mazars for Trump's financial records as part of an investigation into hush-money payments made to adult-film actress Stormy Daniels and former Playboy model Karen McDougal. Both women alleged affairs with Trump ahead of the 2016 election; the president has denied the affairs and any wrongdoing.

A federal appeals court ruled unanimously that Mazars should turn over the records, and the president has no power to prevent such investigations.

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"Any presidential immunity from state criminal process does not extend to investigative steps like the grand jury subpoena at issue here," the three-judge panel ruled.

In the opinion, Judge Robert Katzmann, writing for the majority, pointed to a 1974 case, United States v. Nixon, in which the Supreme Court upheld a subpoena issued to President Richard Nixon to produce tape recordings key to the Watergate investigation.

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"The president has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the president's performance of his official functions," Katzmann wrote.

He added in a footnote,"The past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public. While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the president in performing the duties of his office."

In the filing at the Supreme Court, the president's lawyers argued that upholding the subpoena "would empower thousands of state and local prosecutors to embroil the president in criminal proceedings is unimaginable."

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They added, "State criminal process interferes with the president's ability to execute his duties."

Consovoy, one of the president's personal lawyers, previously claimed that a sitting president is immune from criminal prosecution and investigation in office. At an appeals court hearing, Consovoy said in his response to a judge's question that Trump, as long as he is in the White House, could not be investigated even if he were to shoot someone in the middle on the streets of New York.  (As a candidate in 2016, Trump infamously claimed that his supporters were so loyal that he could stand there "and shoot somebody" and not "lose any voters.")

The Justice Department filed a brief in support of Trump, though it stopped short of endorsing his claim of absolute immunity from all criminal investigations. Instead, government lawyers said that there are instances when a local prosecutor might legally seek a president's documents but noted this was not one of them.

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Presidential materials "should not be treated as just another source of information," the department said. "A subpoena directed at a president's records should be permitted only as a last resort."

Vance has rejected Trump's sweeping immunity claims, arguing the president is "seeking to invent and enforce a new presidential 'tax return privilege,' on the theory that disclosing information in a tax return will necessarily reveal information that will somehow impede the functioning of a president."

"No such privilege exists in the law," he declared.

U.S. District Judge Victor Marrero in New York called Trump's immunity claim "repugnant to the nation's governmental structure and constitutional values."

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Justices on the Supreme Court are not required to hear the case or to schedule it at a party's request, but an appeal from a sitting president would likely attract their attention.

If the Supreme Court agrees to review the case, it will be argued before a panel dominated by conservatives that includes two Trump nominees: Justices Neil Gorsuch and Brett Kavanaugh. In addition, in interviews before the 2016 election, Justice Ruth Bader Ginsburg criticized the president's decision not to release his tax information, as other presidential nominees had done.

"How has he gotten away with not turning over his tax returns?" Ginsburg said in an interview with CNN. "The press seems to be very gentle with him on that." (After her remarks drew criticism, Ginsburg said she should not have commented on the candidate.)

A review by the Supreme Court would finally settle an issue which has dogged the president since before he came into the Oval Office: the release of his tax returns. Such a ruling would likely come out next spring, in the heat of the 2020 presidential election.

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The court could also deny to take up the case, leaving in place a lower court decision that went against the president. Such a decision would clear the way for Vance to enforce the subpoena, though the records would be subject to rules governing grand jury secrecy.

Vance has agreed to hold off on enforcing the subpoena while the Supreme Court decides whether to review the ruling.

Democrats on Capitol Hill have been on a quest to obtain Trump's tax returns ever since he bucked decades of tradition when he first refused to release them during the 2016 election cycle.

Though not required by law, every major party presidential nominee since the 1970s has chosen to publicly release his or her tax returns except for Gerald Ford, who only released a summary. Financial disclosures can help paint a fuller picture of a candidate's business positions and interests by providing information about financial dealings, such as investments, donations, business relationships, assets and possible conflicts of interests.

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Since clinching the presidency, Trump has argued that he cannot disclose his returns because he is being audited by the Internal Revenue Service — even though audits do not prevent taxpayers from releasing their tax documents.


Shira Tarlo

Contact Shira Tarlo at shira.tarlo@salon.com. Follow @shiratarlo.

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