seacoaster wrote: ↑Mon Apr 27, 2020 3:51 pm
Well, back to the Court.
From Amy Howe at SCOTUSBlog, on briefing and scheduling orders issued today:
"The most noteworthy order came instead in a set of cases scheduled for argument in the justices’ upcoming argument session and could potentially derail congressional efforts to obtain President Donald Trump’s financial records.
The justices have scheduled oral argument for May 12 in a trio of cases involving efforts by the U.S. House of Representatives and a Manhattan district attorney to obtain Trump’s financial records from his long-time accountant and his lenders. In the two cases involving Congress, which are consolidated for one hour of argument, the question is whether the committees can subpoena Trump’s records, while in the New York case the question is whether a state grand-jury subpoena can be enforced while the president is in office. Today the justices asked the parties to the congressional-subpoena cases and the federal government, which filed a “friend of the court” brief supporting Trump, to file supplemental briefs addressing whether the political-question doctrine applies to the cases – that is, whether courts should stay out of the fight over the subpoenas because it is fundamentally a political dispute between the branches of government. If the justices were to conclude that the doctrine applies, they could dismiss the cases without ruling on the merits of the dispute – which might be a particularly appealing outcome for some justices in the lead-up to the presidential election. Such a decision could have mixed results for Trump: Without a ruling in his favor, he might not be able to block the accountant or lenders from turning over the records, but on the other hand Congress would not be able to enforce a subpoena if the companies holding the records opted not to comply."
This is a pretty big issue in my view, and I'd like to hear from NJBill, who has been following these cases so far. If the cases are deemed to have raised political questions -- meaning that substantial enough separation of powers and comity between the branches concerns have been raised to warrant the federal courts declining to exercise jurisdiction -- that should raise serious concerns about the ability to exercise any oversight over any President, not just this one. Although the subject matter is different, deeming this a political question would cut another large potential (and important) swath out of the oversight role of the Federal Courts, right on the heels of the Court's determination that partisan gerrymandering is not justiciable in the federal courts.
This is, indeed, a noteworthy order with possibly ominous implications. I haven't read the initial briefs so I don't know if the "political question" issue has or has not been briefed by the parties. If it
has already been briefed, it would seem that for some reason one or more Justices think the issue hasn't been adequately covered.
My hunch, though, it that the parties and the Feds have not briefed the issue, which I am pretty sure was not raised or decided in the courts below. I don't know what the Supreme Court's rules or protocols are for asking the parties to file supplemental briefs on an issue they didn't brief, but clearly one, or likely more than one, Justice thought the issue should be briefed.
The tea leaves suggest to me that the Justices who want the issue briefed may at least preliminarily be leaning towards dismissing the case on "political question" grounds. It is unusual, but not unprecedented, for the Court to decide a case on an issue not raised by the parties.
Here is the wikipedia page on political question which provides a pretty good explanation of the doctrine.
https://en.wikipedia.org/wiki/Political_question
The doctrine is somewhat complicated and not particularly clearly (or consistently) applied by the courts. Here's one description I found:
"The political question doctrine could be read narrowly or more broadly. Read narrowly, the political question doctrine should be invoked only when the issue presented to the Court is one that 'has been textually committed to another branch of government.' That is, if the framers of the Constitution made clear their intention that the judiciary not resolve a particular question of constitutional interpretation, that determination must be respected. More broadly, the political question doctrine might be invoked when there is a lack of judicially manageable standards to decide the case on the merits, when judicial intervention might show insufficient respect for other branches of government, or when a judicial decision might threaten the integrity of the judicial branch."
http://law2.umkc.edu/faculty/projects/f ... tions.html
Two of the three cases to be heard by the Supreme Court involve subpoenas issued by the House to Trump's accountants and banks. The House is not attempting to subpoena documents from Trump, directly, of from the Executive Branch or any federal department or agency. Stripped of their legal niceties, it seems that Trump is arguing the House is out to get him (that is, his tax returns) for political reasons and not to advance any legitimate legislative purpose.
In one of the cases, the House Oversight Committee subpoenaed documents from Trump's accountants based on testimony from Michael Cohen that Trump inflated his total assets when it served his purposes and deflated his assets to reduce his real estate taxes. Trump has argued the House has no authority to subpoena records unless it seeks information for the purpose of writing laws. In this case, they said, the House was improperly acting as an investigative body in an action that implicates the president.
In the other case, the House Financial Services Committee subpoenaed records from Trump's banks, Deutsche Bank and Capital One. Also, the House Intelligence Committee subpoenaed records from Deutsche Bank, explaining that it was investigating "potential leverage that foreign actors may have over President Trump, his family, and his businesses." The president's lawyers said the subpoenas were extraordinarily broad, because they seek more than a decade's worth of documents and covering members of his family who have never held public office and ask for "virtually every financial detail that the institutions might have" about their private affairs.
Ordinarily, the Legislative Branch is given wide latitude to perform its functions. The lower court decisions in these two cases enforcing the subpoenas, thus, are unremarkable, except for the fact that the president's records are involved. The Supreme Court obviously understands how highly charged these cases are. Dismissing the case on political question grounds would allow the Court to sidestep the core issue of whether the House can subpoena Trump's tax returns. The Court wouldn't have to expressly rule in his favor or against him. I agree with those who say the Court (or at least some members) may want to duck these cases during an election year.
Some commentators have suggested that if the Supreme Court dismisses the cases on political question grounds, Trump's banks and accountants will turn over his tax returns since they have said they will comply with a valid subpoena. If the Court dismisses the cases because they raise political questions, the Court would not have ruled the subpoenas to be invalid. On the other hand, the Court will have decided that federal courts cannot enforce the subpoenas. Very interesting question as to what the accountants and banks would do, but my money says they wouldn't turn over the records.
Then there is the third case before the Supreme Court involving the New York state grand jury subpoenas to which the political question doctrine does not apply. The Court will need to decide that case on its merits. I suspect Trump is less concerned about his tax returns being leaked by a grand jury, even a NY state grand jury.
Interestingly to me, Trump's NY state tax returns have not been leaked. I'm not familiar with what info is in NY returns so I don't know if they contain less info than would be in a federal return. Some states require the taxpayer to file a copy of his federal return with his state return. I don't know if NY is such a state. I imagine our NY posters would know the answer to that.
And, lastly, there is what I think is the strongest case for getting Trump’s tax returns, which isn't yet before the Supreme Court. That case involves the request of the Chairman of the Ways and Means Committee for Trump’s tax returns pursuant to a 1976 statute that was enacted in the aftermath of Watergate. That law provides that the Treasury Department “shall” furnish “any” tax return requested by the Chairman. There is no exception for the president's tax return. Indeed, the very purpose of the law was to ensure access to the
president's returns. Treasury also refused to comply with the Chairman’s follow up subpoena. The Committee has filed suit to enforce the subpoena. In the lawsuit, the Committee says that nothing in the law requires it to explain its reasons for seeking tax return information, but the Committee cites to its investigations into IRS administration of tax laws and policies relating to presidential tax returns and Trump’s compliance, including the tax agency’s annual audit of returns of sitting presidents.
This case is still in the trial court which has stayed the action pending the decision from the D.C. Circuit in the
Don McGahn case, which was argued today. I suspect the trial court's stay will remain in place until the Supreme Court rules.
sc, I completely agree with your last paragraph. If the two House cases and the
McGahn case were to be dismissed on political question grounds, Congress' legislative and oversight powers would be significantly restricted. Congress would become a toothless tiger in important respects. Correspondingly, the president and Executive Branch would essentially be able to do as they please without fear that their records or personnel would be subjected to Congressional inquiry or questioning. As they say, what's sauce for the goose is sauce for the gander. No more Benghazi hearings. Do the Rs really want that?
To my thinking, that's no way to run a railroad. True and meaningful Congressional oversight (Ds over Rs and Rs over Ds) is essential to maintaining a proper check on the president and Executive Branch. Everyone should want that.
