Today's SCOTUS mystery: The case of the missing Trump tax-returns decision

Today's SCOTUS mystery: The case of the missing Trump tax-returns decision

The big lesson from this — an emergency for Cyrus Vance and/or Donald Trump does not equal an emergency for the Supreme Court. Both sides returned to the nine justices in October to argue dispute over the Manhattan DA’s subpoenas for Trump’s tax records. Vance wants them as part of a broader investigation, while Trump insists that the investigation is politically motivated and the subpoenas issued in “bad faith.”

Four months later, the court has not issued a ruling of any kind. And people are a bit curious as to why, CNN reports:

Lawsuits involving Donald Trump tore apart the Supreme Court while he was president, and the justices apparently remain riven by him.

For nearly four months, the court has refused to act on emergency filings related to a Manhattan grand jury’s subpoena of Trump tax returns, effectively thwarting part of the investigation.

The Supreme Court’s inaction marks an extraordinary departure from its usual practice of timely responses when the justices are asked to block a lower court decision on an emergency basis and has spurred questions about what is happening behind the scenes.

Chief Justice John Roberts, based on his past pattern, may be trying to appease dueling factions among the nine justices, to avoid an order that reinforces a look of partisan politics. Yet paradoxically, the unexplained delay smacks of politics and appears to ensnarl the justices even more in the controversies of Trump.

Does it? Or has this become more or less moot after the election? In July, the court punted a bit on the issue of tax returns in this case. It unanimously rejected the “sovereign immunity” argument Trump made in claiming that presidents could not be subpoenaed while in office over these kinds of state-level disputes. However, they kicked the case back to the district court to allow Trump to raise other objections to the subpoena, and probably hoped that would keep the case from coming back soon, if at all.

Instead, both Vance and Trump quickly burned through another series of appeals, putting the case before the court again by October. Both sides wanted quick action, and the Supreme Court placed another stay on the subpoenas. Vance in particular argued that any delay would have an “irreparable” impact on his grand-jury presentation. Trump’s attorneys countered that they would have considered a deal in which Vance pledged to keep the returns under seal, which Vance curiously refused to do:

In countering those arguments, Trump’s lawyers said that “the Court cannot provide any relief if the District Attorney discloses the records while this appeal is ongoing” and that New York law “doesn’t strictly forbid the disclosure of records produced to the grand jury.” Trump’s team said that “this could include disclosure as part of an indictment or a grand-jury report as well as to third parties” and that “for the District Attorney’s argument to even get out of the starting gate, then, he would need to commit to keep these records confidential during the appeal” but that “he has made no such commitment.” The president’s lawyers said that “there is no doubt that the President will suffer irreparable harm” and claimed that “it is disclosure of these records to the government — not just to the public — that causes injury.”

One has to wonder whether that has had an impact on the court’s speed in processing this case, too. Both sides appeared to be trying to get this resolved before the election. In Trump’s case, the interest was obvious. In Vance’s case, however, it would be less so … unless Vance really only had a partisan electoral interest in pursuing these records. It was no secret that Democrats, especially in the House, had declared they would exhaust every opportunity to get their hands on Trump’s tax returns.

In fact, that July decision also included a rebuke to those House Democrats. In Trump v Mazars, Chief Justice John Roberts rebuked lower courts for not taking Trump’s arguments on separation of powers more seriously. He ordered a new review at the district court using a much stricter standard for the House demand of Trump’s financial records:

The approach proposed by the House, which relies on precedents that did not involve the President’s papers, fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. The House’s approach would leave essentially no limits on the congressional power to subpoena the President’s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense. These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved. The interbranch conflict does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. Nor are separation of powers concerns less palpable because the subpoenas were issued to third parties.

With that context, the justices might have looked at Vance’s demands to get this resolved before the election with a very skeptical eye. Trump’s team also pointed out that Vance had himself sought delays earlier in the case, but still assumed the court might expedite the matter given the acceleration other courts had provided the case. Trump’s lawyers have kept up the pressure, CNN notes, by noting that it was prepared for an expedited hearing on the merits if the court chose to schedule it. And yet the court has said nothing about the case at all — not even to respond to the requests to expedite it.

CNN suggests that this might be because of a court split, but this court splits all the time. A 6-3 or 5-4 ruling one way or another wouldn’t even qualify as a nine-day wonder, let alone a nine-justice wonder. It might be more a case of the court trying to wait to see just how interested Vance still is in pursuing this case now that the election is over. Why bother issuing a ruling at all if the case is essentially moot?

One issue with that explanation is that neither side has argued for mootness — at least not yet:

A majority of the justices might have opted against action close to the November 3 election, to avoid any signal for or against Trump in his quest to keep his tax returns private. But the election, the recounts, the Electoral College certification and the January 20 inauguration have all come and gone.

Now that Trump is out of office, the heart of the case tied to his role as president could be moot, irrelevant as a legal matter. But neither side has raised that possibility in a supplemental filing, nor have the justices raised the question in anything made public. And the election results have been known for months.

Neither side would raise that. Trump can’t raise it, as this case has no tie to his official duties as president anyway. And at this point, Vance can’t admit that this was all just a pretext to get Democrats access to Trump’s financials. Besides, the acquittal by the Senate might even have provided Vance more incentive to find a felony he can prosecute against Trump to get a disqualification by the back door, so to speak.

He might have to wait until June to get the green light on it. The Supreme Court likes mysteries, and they don’t like responding to phony “emergency” demands. Enjoy the suspense, as long as it lasts.

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