Cake? Or Death?

The Supreme Court rejects Trump’s imperious arguments on subpoenas, but it doesn’t go far enough, the Editorial Board writes https://t.co/oM0y44rAEr

— Washington Post Opinions (@PostOpinions) July 9, 2020

I really hate when non-lawyers comment stupidly on legal matters.

SEVERAL TIMES in the Supreme Court’s now-concluded 2019-2020 term, the justices stopped short of giving one side a complete victory on a hot-button issue. They did so again on Thursday, the last day of the term, when the question was whether subpoenas for President Trump’s financial records — one from Manhattan’s district attorney, four from Congress — were enforceable. The court rejected the imperious arguments of Mr. Trump’s lawyers, who would have denuded investigators of power to examine his conduct. But the justices did not order the immediate turnover of the president’s records, instead mandating further litigation.

The justices didn't give that order, because they couldn't.  Such an order would short-circuit proper legal proceedings and clearly indicate we have a government of men, not laws.  It would, in fact, have proven Trump right, because it would be "Presidential harrasment."  This case is not on all fours with the Nixon tapes case, because the legal issues are not the same, and the national situation is not the same.   That case involved the denial of a motion by Sirica which Nixon appealed directly to the Supreme Court.  The Court backed Sirica, and the issue was dead as doornail.  This case involved an interlocutory appeal (as the tapes case did), but that case went through the appellate court first.  I'm still not sure what the Supreme Court added to this case, except it's imprimatur that Trump is NOT above the law.  I think they wanted that slapped down fiercely (it's all I've got without carefully comparing the appellate court opinion and the Supreme Court opinion, and I'm not going there).  The question before the court was:  could the tax returns be withheld from a grand jury and a Congressional committee?  And the answer was: no, not on this record.

But the Court also established a five part test for the Congressional subpoena, which has to be examined by the trial court (where facts are developed).  Basically, this case came up too soon, and any findings of fact which could change the outcome of the case ("change the facts, change the outcome" is fundamental to both due process and equal protection) have to come from the trial court. Again, there was a more complete record in the tapes case, and a single simple legal question.

Though the court’s moderation in some cases this term has been valuable, the punting in this instance was wrong. The court effectively rewarded Mr. Trump’s policy of total noncooperation with Congress and other investigators, allowing him to foil attempts to scrutinize his behavior before the November election. By unnecessarily lengthening the dispute, the justices sharpened the incentive for future presidents to fight subpoenas until courts force compliance.

No, the Court treated Trump like any other party before the law, which in this case is a very good thing, because Trump was demanding special powers no President has ever been recognized to have.  Had they unnecessarily (and improperly) truncated the dispute, they would actually be usurping the proper place of the trial court to act as finder of fact, and usurping Mr. Trump's right to equal protection and due process.  Even Presidents as foul as Trump have that much right in our courts.

The court was not as clear on the extent of Congress’s subpoena powers. The majority resented that it had to rule on the issue, as the branches had historically found ways to compromise on documents and testimony without involving the court. Mr. Trump’s obstinance ended that tradition of give-and-take.

And let's be fair, they rejected Trump on that point resoundingly.

The justices found that Manhattan District Attorney Cyrus B. Vance Jr. could subpoena Mr. Trump’s accounting firm, Mazars USA, for the president’s financial records and that Mr. Vance did not have to meet special requirements simply because he seeks the president’s documents. Though it is questionable whether Mr. Vance could charge a sitting president, it is now clearer that he and other local prosecutors may collect and save evidence that could be used in criminal prosecutions following a president’s tenure. Lower courts should resolve any remaining questions around Mr. Vance’s subpoena and allow the district attorney to get on with his work.

Yes, they should.  But saying that should happen is precisely what the Supreme Court allowed to happen, because that's the way the judicial system operates.  Another thing about the tapes case:  it came up in 1974.  Nixon's term didn't end until 1976.  Not only was the case taken up by Nixon in order to get it rapidly disposed of (Trump did the opposite), even had it lingered longer, a decision would not have come as Nixon was ending his last term.

The justices rejected the president’s argument that Congress would have to meet an exacting standard to obtain any presidential document it sought. Yet they did not want to deliver an unmitigated victory to the legislature that might upset the balance that had existed when the two branches would negotiate and compromise. So the justices sent the case back to lower courts, declaring that lower-court judges must more carefully consider separation of powers concerns in weighing Congress’s demand to see Mr. Trump’s financial records. In so doing, the justices underscored that Congress’s subpoena power was crucial for the lawmakers to make informed decisions, but that Congress must have a bona fide legislative purpose, not just a desire to harass the president.

And the problem there is?

It is hard to blame the justices for their caution and unease. But Mr. Trump’s rampant norm-breaking has made for uneasy times. He forced the issue by refusing to release his tax returns, lying about why, then attacking valid subpoenas. If the court again considers such a case, it must be clearer that the president cannot escape scrutiny.

The president?  Or this president?  The Court cannot rule just on the case before it; it's ruling can make law for all other persons similiary situated.  That is why it ruled as it did, why it was constrained to rule as it did, why it could not simply tell Deutsche Bank to turn over the records by close of business today.  That option was never available to them.  What they have handed Trump is a thumping defeat.  How he tries to twist it into a victory is his delusion.  How it affects the election in November is not, and never should be, the Court's concern (they made that mistake in Bush v. Gore, let's not invite another one such).  If Congress was seeking the records just to embarass Trump this fall, then they shouldn't get them, it would be "Presidential harassment."  If a grand jury in New York was seeking them just to publish them before October, that would be improper, too.  The wheels of justice may grind slowly, but they move deliberately for a reason.  Their end is justice, not political advantage.

I, for one, am comforted by how the Court ruled.  It would have been much worse if they'd found some legalese to paper over a "Damn Trump!  Screw him to the wall!  We're gonna have those records published in the Supreme Court Reports!"  Which, no, wasn't really the only alternative available, but everybody calm down.  Whether or not Trump can be prosecuted is likely to be a moot point in early 2021, and the ends here are justice, aren't they?  Or is it just retribution?