Legal Experts Weigh In on Supreme Court’s Trump Rulings

President Donald Trump walks on the South Lawn of the White House in Washington on June 21, 2020, after stepping off Marine One. (AP Photo/Patrick Semansky)

WASHINGTON (CN) — The Supreme Court ruled in two cases related to revealing President Donald Trump’s financial records Thursday, decisions which legal scholars said were generally unsurprising outcomes consistent with legal precedent.

The high court ruled 7-2 Trump was not immune from complying with a subpoena from a New York City prosecutor, but punted on a related case involving subpoenas of Trump’s financial records from House Democrats. 

The decisions fell two months after remote arguments where attorneys for Trump and the Justice Department argued the president’s position makes him immune from state-level criminal process and that Congress overstepped its authority in subpoenaing the records. 

The dispute now will get untangled in the lower courts. 

Harry Sandick, a partner at Patterson Belknap, said the decision is in part the result of the expansive arguments Trump and House Democrats put forward. While the court could not sign onto Trump’s suggestion to hold the House to an extremely high standard to justify the subpoena, the justices could also not get behind the House’s view of its subpoena power that had no discernible limiting principle.

“Absolute arguments don’t appeal to judges, not on the Supreme Court and not in traffic court,” Sandick said in an interview. “So here, the court needed to do it themselves.” 

Paul Larkin, a senior legal research fellow at the Heritage Foundation, said the inconclusive decision is also in large part because the case presented issues the court very rarely has occasion to consider.

“The court is smart enough to know that if this were something that came up over and over again, I don’t think they would come up with a four-factor test,” Larkin said in an interview. “I think given the very unusual nature of litigation like this, they figured, OK, we can do it here because how often is this going to arise where we are not going to be ultimately making the final call?” 

Laying out a test like it did in the case also ensured the court could keep a majority rather than handing down a highly fractured collection of opinions that would confound lower courts, Larkin said.

The fight over the congressional subpoenas now turns to the lower courts, where the sides will pare down their arguments in line with a list of considerations the justices handed down in their opinions Thursday. 

Leslie Gielow Jacobs, a professor at the McGeorge School of Law, wrote in an email that House Democrats “may prevail if they show a need for the information that outweighs the president’s need for freedom of action, without distracting inquiries.” 

Many court watchers saw the justices’ decision on the New York prosecutor’s subpoena as predictable given how the court has handled similar issues in the past. 

“The state court ruling is consistent with the prior cases on presidential immunity for communications, which say that the president is not absolutely immune from producing communications, even those he produced in office,” Jacobs wrote in an email.

Larkin said the court’s decision relies on district and appellate court judges to weed out politically motivated prosecutions. At the same time, Larkin said tests like those the justices laid out can cause problems in lower courts as judges try to figure out which factors in the multi-step test to prioritize over others. 

Timing now becomes a primary focus in the cases, with the November election looming.

Jacobs said when the cases return to the lower levels, so does the president’s ability to delay. She predicted that while it is likely Trump will appeal to a judge’s discretion, that motion would be unlikely to succeed. 

“Grand jury evidence is supposed to stay secret so the public should not hear about it until the grand jury takes action that the prosecutors reveal publicly,” Jacobs wrote. “The president can make arguments about the separation of powers in the committee cases. This will take all the months until the election, to have briefs, arguments and detailed opinions that could work their way up to the Supreme Court again.” 

Larkin said while it is unlikely Trump’s financial records get into the hands of Congress before the November election, it is by no means impossible if a federal judge is aggressive enough with scheduling.

Other scholars said the court’s Thursday rulings didn’t go far enough to provide citizens with transparency for the financial records of elected officials. 

David Cuillier, an associate journalism professor at the University of Arizona who focuses on informational freedom, told Courthouse News in an email public interest in the disclosure of a candidate’s financial information “far outweighs the one person’s privacy interests.” 

Tax returns of the president or a presidential candidate should be required by law, to be posted online for the public to examine, he wrote. Additionally, there should be changes to The Freedom of Information Act to provide this access. 

“The current idea that public records laws apply only to government agency records is flawed, and needs to be upended,” Cuillier wrote. “Instead, freedom of information laws should apply to any records that have a substantial nexus in the public understanding of what the government is up to, even if held by private individuals or companies. The president’s tax returns are such records. Other countries have figured that out. Why don’t we?”

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