Supreme Court slaps down Trump
But tax returns unlikely to be public any time soon as cases back to lower court
At his campaign rally last month in Tulsa, Oklahoma, President Donald Trump ranked his Supreme Court appointments among his biggest achievements. “Two great Supreme Court judges!” he boasted. “So, we have two justices of the Supreme Court, Justice Gorsuch, Justice Kavanaugh, they’re great. They are – they’re great.”
He might not have felt so warmly yesterday, after Justices Neil Gorsuch and Brett Kavanaugh categorically dismissed his claim to “absolute immunity” from investigators seeking his tax returns. In a pair of farreaching rulings, Trump’s two appointees joined a unanimous conclusion that the president went too far by pronouncing himself exempt from legal scrutiny.
The forceful decisions represented a declaration of independence not only by Trump’s own justices but also by the Supreme Court as an institution, asserting itself as an equal branch of government in the Trump era. No matter how often Trump insists that he has complete authority in this instance or that, the justices made clear there were in fact limits, just as they did in landmark executive power cases involving presidents Richard Nixon and Bill Clinton.
That a conservative court including two of his own appointees would so decisively slap down a Republican president’s expansive claim of constitutional power served as a reminder that institutional prerogatives still matter in Washington, even in a time of extreme partisanship. The court remains broadly conservative on important issues such as religious freedom, but in cases on gay rights, immigration, abortion and now executive power, it has defied the president repeatedly in recent weeks.
By forging a unanimous consensus on Trump’s immunity claim, Chief Justice John Roberts seemed to underline the point he made two years ago when he rebuked Trump by saying there were no “Obama judges or Trump judges.” Even on the overall votes on the two cases, both decided 7-2, he brought together four liberals and three conservatives, echoing the firm lines drawn by the court against other overreaching presidents.
“The truth is, President Trump’s arguments for immunity were so sweeping that it was almost impossible for any justice to really embrace them,” said Tom Goldstein, a prominent Supreme Court litigator and publisher of Scotusblog, a website that tracks the court.
Still, the justices cut Trump a break by sending the two cases back to lower courts to consider the merits of the subpoenas according to standards set by the court, additional litigation that will most likely keep his tax returns shielded from public view through the general election set for November 3.
Many legal experts predicted Trump ultimately could still stave off congressional demands for his returns because the justices in Trump v Mazars USA seemed dubious about their legitimacy and put the onus on the House to justify its need for the documents. But experts said Trump was likely to eventually lose the effort to block a New York prosecutor because the justices in Trump v Vance put the burden on the president to come up with a compelling rationale for why the returns should not be turned over.
The president lashed out on Twitter minutes after the court’s rulings, once again presenting himself as a victim. “This is all a political prosecution,” Trump wrote. “I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!
“Courts in the past have given ‘broad deference,’” he added. “BUT NOT ME!”
In fact, Trump was the one seeking special treatment. Every president since Jimmy Carter has voluntarily released his tax returns, but Trump has refused since 2015 when he began running for the White House and said he was being audited. While he promised to make them public once the audit was over, he never has.
Five years later, the
White House said yesterday he was still being audited but did not identify which years of tax returns were being reviewed. Once in office, every sitting president’s returns are audited automatically, so if that remains his standard, he presumably will never release them voluntarily.
Similarly, Trump was seeking court protection beyond that enjoyed by any other president, claiming “absolute immunity.”
That flew in the face of the principles set by the court when Nixon in 1974 lost his bid to shield tape recordings that implicated him in the Watergate cover-up. In that case, US v Nixon, the court ruled against the president 8-0, including three of his appointees: Chief Justice Warren E Burger and Justices Harry A Blackmun and Lewis F Powell Jr. A fourth appointee, Justice William H Rehnquist, recused himself because he had served in Nixon’s Justice Department.
Twenty-three years later, the court rebuffed Clinton’s immunity claim while in office against a civil sexual harassment lawsuit brought by Paula Jones, a former Arkansas state worker. Both of Clinton’s appointees, Justices Ruth Bader Ginsburg and Stephen Breyer, rejected his position in the 9-0 decision in that case, Clinton v Jones.
Like his predecessors, Trump was unhappy with the rulings, although aides sought to calm him by assuring him that he could continue fighting in lower courts. But he expressed deep anger at Gorsuch and Kavanaugh, seeing their votes as a betrayal, according to a person familiar with his reaction.
But the two justices only followed in the footsteps of their predecessors by rejecting the president who put them on the court. While each of them has generally sided with Trump since taking office, in this case they drew a line. Neither is personally close to Trump nor is either thought to be much of an admirer of the president, so some saw the decision as a way to distance themselves.
“My guess is their feeling about him is, ‘We intend to be on this court long after he is a bad memory, and if his administration is about to come crashing down, we might as well have been people who weren’t willing to completely blow up the Constitution for him,’” said Richard Primus, a constitutional scholar at the University of Michigan Law School, adding that they would do so only if they also saw it as “the right legal answer.”
Kayleigh McEnany, the White House press secretary, said she did not ask Trump specifically for his reaction to the position taken by Justices Gorsuch and Kavanaugh but insisted that “his justices did not rule against him.”
She also focused on the fact that the court sent the cases back to lower courts for further proceedings with standards for Trump to meet if he wants to avoid subpoenas, and she cited cautions in the ruling against fishing expeditions.
In a concurrence in the New York case, joined by Gorsuch, Kavanaugh flatly dismissed Trump’s constitutional argument. “In our system of government, as this court has often stated, no one is above the law,” he wrote. “That principle applies, of course, to a president.”
But he added that “a court may not proceed against a president as it would against an ordinary litigant,” and so state prosecutors must still justify their demands for documents like his tax returns. He said he would apply the same standard articulated in the Nixon case, that prosecutors have to provide a “demonstrated, specific need” for the information, a formulation that Roberts did not adopt in his majority opinion.
Gorsuch and Kavanaugh have been supportive of the Trump administration but not across the board. Kavanaugh has voted for the position espoused by the administration
67.6 per cent of the time. Gorsuch has agreed with the administration’s point of view
56.1 per cent of the time