As I noted on Friday, the Supreme Court is nearing the end of its terms and has, at least, two opinion days for this week. Whether the two days will see all of the opinions or some will be issued after the Independence Day celebrations remains to be seen.
While there are many cases that will have impact long after this year, five cases (representing four argument slots) could directly impact this election. Two of them — the Faithless Elector cases — are about the election itself. But the other three — involving the Trump financial records — could shape the campaign.
While, technically, there are three cases, the Supreme Court consolidated argument on the two cases involving subpoenas issued by Congressional committees and are likely to issue one opinion on those two cases. The other case involves a state grand jury subpoena and will probably result in a separate opinion.
There are several different issues involved in these case. And, because of this fact, there is a real probability of an inconclusive result.
First, just before oral argument, the Supreme Court asked the parties to discuss the political question doctrine. Now, “the political question” doctrine basically holds that there are certain issues that federal courts should not resolve because they are ultimately delegated to the political branch. Now, if the Supreme Court were to invoke the political question doctrine, there are two ways that it could do so. The first would be that the validity of a Congressional subpoena is for Congress to decide. I can’t see any of the justices taking this approach. The other approach would be that it is up to Congress and the Executive Branch to negotiate what documents the Executive Branch will produce. Aside for the fact that this case does not involve a subpoena to the Executive Branch, the effect of such a ruling would be to hold that Congress lacks the power to compel production of documents by the Executive Branch. Basically, while Congress might call it a subpoena, it’s really just a document notifying the Executive Branch that Congress would like certain documents, And those requests would only be enforceable by Congress holding up items that the Executive Branch wants to pressure the Executive Branch to comply. Given prior cases, while we might get one or two justices putting forth such a broad theory, I can’t see a majority going along.
Second, there is the issue of what Congress (or a state agency/grand jury) must show to demonstrate a valid subpoena. Individual members of congress do not have the authority to issue subpoena. Otherwise, who knows what subpoenas Senator Rand Paul or Representative Devin Nunes might issue. So there at least need to be some authorization for a subpoena (whether a rule authorizing committee chairs to issue subpoenas or some vote authorizing a subpoena). Additionally, there is the question of whether the subpoena is within the jurisdiction of the committee/agency/grand jury.
Third, there is the issue of privilege. Assuming that the subpoena is valid, what must the President/an executive branch official show to be relieved from complying with the subpoena. Particularly, given that these are not technically the personal records of Donald Trump but rather the records of the Trump Organization (a private corporation), the President’s theory of privilege is very, very broad, and is contrary to past practice.
Ultimately, the key part of the opinion will be what the Court requires the party requesting the subpoena to show to demonstrate a sufficiently valid subpoena and what the Court will require the President/executive branch show to defeat an otherwise valid subpoena. Obviously, the attorneys for Donald Trump (trying to block subpoenas issued to third parties) are trying to argue for all of the burden to be on Congress and the grand jury to justify compliance with the subpoenas. On the other hand the Manhattan District Attorney and the Congressional Committees are trying to argue that, other than a very minimal showing of the authority to issue subpoenas of this type generally, the burden to show that the subpoena should not be enforceable should rest with the party challenging the subpoena.
Given the number of (mostly frivolous) arguments raised in opposition to the subpoenas, the Supreme Court has a long laundry list of potential factors to consider. It will probably reject some of the arguments entirely. But, the most likely result will be that the Supreme Court identifies a list of relevant facts that the lower courts should balance. And, it is more likely than not that the deciding votes will take the position that the lower courts did not consider all of the relevant facts. If this is the conclusion of the key votes, the case will be sent back to the lower courts to take evidence on these issues and to make a new decision. While it is entirely possible that the lower courts will expedite these matters, it may take several months to get a decision. (And ultimately, it is up to the subpoenaed parties when they will decide that they have to turn the records over.)
On the individual cases, I think the strongest argument probably lies with the Manhattan District Attorney. Clearly, there is substantial evidence in the public record showing that the Trump Organization and official employed by the Trump Organization probably committed criminal offenses. Now, it is unclear that the lower courts required the Manhattan District Attorney to demonstrate either reasonable suspicion or probable cause. (And, it is unclear that this issue should be handled in federal court rather than in the state court supervising the grand jury.) Because the Trump Organization is based in Manhattan, the Manhattan District Attorney is uniquely situated. I would expect the Supreme Court to place some guidelines to limit the number of prosecutors who can subpoena the President, but I can’t see a holding that any Presidential immunity from prosecution (if such a thing exists) prevents a local prosecutor from investigating potential crimes committed by the former associates of the President.
The Congressional committees are more of a mixed bag because of the general rule that Congressional committee are not supposed to conduct criminal investigations. While they can investigate misdeeds by a public official as part of an impeachment inquiry or in connection with oversight/potential legislation, the line between permissible and impermissible investigations can be somewhat vague. The hope is for a ruling that somewhat clarifies where that line is.
In short, even if we get a ruling this week, it will probably not be the final word on whether the banks and the Trump Organization has to turn over documents to investigators. And that means, there is a chance that, for the second election in a row, Donald Trump will succeed in keeping his dirty business from being fully aired in public. But the odds are that, shortly after January 21, former President Trump will have to answer questions about those records in front of a grand jury in Manhattan.
