USA TODAY International Edition
TRUMP V. CONGRESS
Supreme Court may decide
Disputes over Trump’s personal, professional, political dealings are headed toward high court just as the 2020 election season is heating up
WASHINGTON – President Donald Trump says his impeachment battle with House Democrats “probably ends up being a big Supreme Court case.”
If so, it may not be alone.
Several other legal disputes over Trump's personal, professional and political dealings, both as president and before taking office, are headed toward the nation's highest court just as the 2020 presidential campaign is heating up. Subpoenas are flying in search of key documents and elusive testimony.
The president thinks the conservative- leaning court will be on his side. His opponents believe they have stronger constitutional arguments. The justices, already facing cases on abortion, immigration, guns and LGBTQ rights, might prefer to take a pass.
“I think the court's going to do everything in its power to avoid getting into the subpoena stuff,” says Neal Devins, a law professor at William & Mary Law School. “But it might not be able to easily avoid the issue.”
Here's a look at the most significant battles and the prospects for high court action:
“I think the court's going to do everything in its power to avoid getting into the subpoena stuff. But it might not be able to easily avoid the issue.”
Neal Devins Law professor at William & Mary Law School
Impeachment
This one's not in court yet, but it may be only a matter of time.
Four weeks into the impeachment inquiry announced by House Speaker Nancy Pelosi on Sept. 24, the White House and Trump's lawyers have refused to cooperate by not providing documents. They say the probe is partisan and illegitimate, in part because the House never voted to begin impeachment proceedings.
Three House committees conducting depositions set deadlines for subpoenas seeking documents from Trump lawyer Rudy Giuliani, the Pentagon, the Energy Department and the Office of Management and Budget. Giuliani refused to comply, as did the others.
At the same time, investigators are seeking documents from Vice President Mike Pence and others – with the implied threat that court action could follow. Pence, too, has refused to comply. Thus far, the House has not asked courts to enforce the subpoenas.
“That is the most likely type of issue that could go before the Supreme Court,” says George Washington University Law School professor Jonathan Turley, lead counsel in the Senate impeachment trial of a federal judge in 2010. The White House, he says, “did untold damage to ( Trump's) primary defense” of executive privilege by focusing on claims of partisanship.
Financial records
A federal appeals court in the District of Columbia ruled earlier this month that Trump's accounting firm must provide eight years of financial documents under subpoena from the House Oversight and Reform Committee.
The 2- 1 decision involves Mazars USA; a similar case is pending in New York that involves Trump's lending records at Deutsche Bank and Capital One. Further appeals are likely, including to the Supreme Court.
The House panel is investigating whether Trump or his company engaged in illegal conduct before or after he became president and whether he has undisclosed conflicts of interest.
Michael Gerhardt, an expert on constitutional conflicts between presidents and Congress at the University of North Carolina School of Law, says lawmakers have the upper hand. “It would be highly unusual for the court to restrict what Congress may ask for,” he says.
Tax returns
A federal district judge in New York earlier this month said the president must comply with a prosecutor's demand for tax returns. Manhattan District Attorney Cyrus Vance is investigating hush- money payments to two women, adult film star Stormy Daniels and former Playboy model Karen McDougal, who allege they had affairs with Trump years ago, which Trump denies.
Trump's attorney immediately appealed the ruling, and the case could be heard soon. The attorney, William Consovoy, further asked the appeals court to block District Judge Victor Marrero's order for a week after its ruling “so that the losing party has an opportunity to seek Supreme Court review.”
At the same time, House Democrats' demand for Trump's tax returns also is tied up in court. Treasury Secretary Steven Mnuchin has blocked the Internal Revenue Service from turning over the returns.
Trump's claim that he is immune from criminal investigation while in office is “entirely unsupported by the Constitution,” Turley says. But he and other experts say the Supreme Court could rule that state and local governments lack authority to target the president.
Emoluments
Two federal appeals courts have examined payments to Trump's businesses, including from foreign governments since he became president. One three- judge panel rejected claims filed by Maryland and the District of Columbia, but the full U. S. Court of Appeals for the District of Columbia Circuit agreed Tuesday to rehear the case.
A second appeals court ruled against Trump. A third lawsuit filed by House Democrats is pending. Eventually, the high court may be asked to intercede.
“I could imagine those being teed up fairly quickly,” says Erwin Chemerinsky, dean of the University of CaliforniaBerkeley School of Law – in part because the high court has not considered the Constitution's emoluments clauses before.
Trump's effort to host the next G- 7 conference at his Florida golf club threatened to add a new wrinkle to the emoluments lawsuits, but the president reversed himself Saturday after withering criticism and said a new site would be chosen.
Mueller probe
The House Judiciary Committee continues to seek grand jury materials from former special counsel Robert Mueller's investigation of Russian interference in the 2016 election and the Trump campaign's involvement.
During an oral argument in federal trial court this month, the Justice Department went so far as to argue that the court- ordered release of grand jury materials during the 1974 Watergate probe that led to President Richard Nixon's resignation was improper.
“Wow,” federal District Judge Beryl Howell said at the time, calling the administration's position “extraordinary.”
Supreme Court’s role
Most experts say the legal battles are custom- made for the Supreme Court, once they go through federal trial and appeals courts.
“These are fairly monumental questions,” Gerhardt says. “It's hard to see how the court easily dodges them.”
The high court usually agrees to hear matters of national importance, particularly those raising constitutional questions, since it provides the last word.
What's more, disputes between the White House and Congress have nowhere else to go.
“I think the court would perceive it is the third branch, the umpire needing to resolve those questions,” Chemerinsky says.
Clock is ticking
Even if the Supreme Court agrees to settle one or more of the disputes regarding Trump- related documents, it may not happen anytime soon.
The court hears cases from October through April, and it already has filled more than half its current calendar. Requests for the justices' intervention would need to be decided by January. Otherwise, the earliest a case likely could be heard would be next October, and any decision would come after Election Day.
“I think the president's lawyers could run out the clock,” says Josh Blackman, associate professor at South Texas College of Law in Houston, who follows the Supreme Court closely.
University of Texas law professor Stephen Vladeck says both sides in the various legal scuffles have reason to stall. House Democrats may not want to appear overzealous in their drive to impeach the president, he says. Trump's lawyers may not be sure the Supreme Court is on their side.
“From their perspective, delay is good,” Vladeck says. “The longer they can drag this out, the more they can keep pushing the ‘ witch hunt' narrative.”
Getting to five
The high court's five conservative justices have “robust views of executive power,” Turley notes. The newest one, Associate Justice Brett Kavanaugh, suggested in a 2009 law review article that presidents should be immune from criminal investigations and prosecutions, as well as personal civil suits, until after leaving office.
“The lineup of the Supreme Court favors the White House,” Turley says. But “this is not a lead- pipe cinch case to make before these justices.”
When it comes to ignoring congressional subpoenas, Vladeck says, “I'm really not sure there are five votes on the merits for this administration in almost any of the cases.”