If you’re confused by the news about the Supreme Court’s decisions in the two Trump tax return cases this morning, you’re not alone. The cases are a perfect Rorschach test, not only for your politics, but also your general life disposition. Tweets, headlines, Facebook posts, and cable news chryons are probably giving you whiplash about what happened. Did Trump lose and finally have to turn over his taxes? Or did he win and keep his taxes from ever seeing the light of day?
What the Court did today was complex, and no headline or tweet can really capture it. So here’s a clear breakdown of the Court’s decisions for you.
The Court ruled 7-2 in both cases, with the two most conservative Justices (Thomas and Alito) dissenting. So Trump lost, right?
In many ways yes. The court’s main opinions, written by Chief Justice John Roberts, rejected the president’s arguments that he was above the law and did not have to comply with lawful investigations.
Seven Justices agreed with this position in two different cases. One case involved the Manhattan prosecutor who tried to obtain financial records from Trump’s accounting firm as part of an investigation into possible financial crimes committed by Trump and his businesses. The other case involved Congress trying to obtain similar records from Trump’s accounting firms as part of their investigation into whether to pass laws regarding financial regulatory matters and election interference.
In both cases, the president asked the court to grant him immunity from the investigations because of his special role as the President of the United States. This contention was resoundingly rejected, with seven Justices rejecting the president’s argument in both cases, and even the two dissenting Justices agreeing regarding the New York criminal investigation. (More on that later.)
In lay terms, the president was arguing he was above the law and did not have to turn over documents that any other person being investigated would be required to. The court refused this position, which is a big blow to Trump.
So if the president lost, why the confusion?
Because law is complex, and the Supreme Court split the baby in some ways here. The president lost on this main point, but the court did not rule that he has to turn over his tax returns right now. This is where things get tricky.
In the New York case, the court said that even though the president doesn’t have any special immunity, he still gets the opportunity to raise any objections that a normal person would have to the subpoena for his records. In other words, just like you or I could object to a subpoena because it’s too broad, is too vague, is too burdensome, or is really a form of harassment, the president can do so as well. Moreover, the court said he can raise special objections based on his constitutional role as the head of the federal executive branch, such as that the state subpoena is an attempt by the state government to obstruct the federal government or would impede him from performing his constitutional responsibilities.
In the case about Congress, the court did something very similar. The court said the president doesn’t have complete immunity, as he wanted, but he can raise other arguments about why the congressional subpoena is invalid. In particular, the court said that there has to be a balancing of factors to determine whether the basic principle of separation of powers is thwarted by the Congressional investigation of the president. In weighing these interests, courts have to look at whether the purpose of the investigation warrants this imposition on the president, how broad the subpoena is, whether the subpoena is supported by sufficient evidence, and how much the subpoena burdens the president’s job.
In both cases, the Supreme Court did not assess these other arguments or interests. Rather, the court sent the cases back to the lower courts to hear these arguments and make new determinations under these guidelines.
That sounds like it could take a long time.
Indeed. There is no doubt the president’s lawyers are going to use every play in the book to delay the release of anything, and the Court gave them several here. The arguments that the court recognized as important in both cases will take time to develop, which means evidence production and briefing. Then, the lower court judges will have to decide these matters in the first instance. From there, there will be appeals, to both the intermediate appellate courts and then to the Supreme Court. And if the Supreme Court again decides to hear one or both cases — a likely possibility given how weighty these issues are — we’ll be back on the Supreme Court’s slow calendar.
So we’re not going to see the president’s tax returns now?
Absolutely not now. And not for the foreseeable future either. Lawyering takes time, a lot of time. And even if somewhere down the line the New York grand jury eventually gets the president’s tax returns, grand jury evidence is supposed to be secret. Same with Congressional evidence such as this. So, it could be years before these cases are resolved, and even if they are resolved against Trump, the information might very well stay sealed (barring a leak).
If Trump doesn’t have to turn over his taxes now, then why did Justices Thomas and Alito dissent?
These two Justices have the broadest view of presidential power on the Court. They also take the most reliably conservative views in cases, views that almost always align with the Republican party.
Here, although they didn’t agree that the president is always immune from investigation, they did think that he should be immune in these cases. In the New York case, they thought the president has broad authority to ignore the enforcement of a subpoena that interferes with his job, especially when the subpoena comes from a state. In the Congress case, they thought that if Congress wants to investigate the president, it needs to do so by the impeachment power and be much more specific.
Notably, the two Justices appointed by President Trump — Neil Gorsuch and Brett Kavanaugh — ruled against him in both cases.
So bottom line: Who won?
Everyone and no one. President Trump’s broad arguments of presidential immunity were rejected, but he gets to delay this case in the lower courts to the best of his lawyers’ ability. The public is reassured that we are not ruled by a dictator or king, but the prospects of the public ever seeing Donald Trump’s taxes were improved only marginally today.
So there’s no clear winner today at all.
Other than maybe Chief Justice Roberts. As the author of both opinions, he looks like he stood up to a Republican president and told the world that, in the United States, no person is above the law. Doing so makes the court looks like a principled, non-partisan institution. But, at the same time, he assured his fellow Republicans that the president’s tax returns will not be an issue in the upcoming election because there is no possible way they are released — privately or publicly — in the next four months. This keeps the Court out of the election, and possibly even helps the president in his campaign (or, at the very least, doesn’t hurt him).
The president may be upset, Congress may not yet be getting what it wants, the New York prosecutor may have a long road ahead of him, but the Supreme Court comes out looking good. Just what Chief Justice Roberts wants.