SCOTUS Stays House Subpoena For Trump Tax Returns | Talking Points Memo

The Supreme Court agreed to block temporarily a congressional subpoena for the President’s financial records as it awaits a response from House attorneys seeking years of President Trump’s tax returns.


This is a companion discussion topic for the original entry at https://talkingpointsmemo.com/?p=1263087
1 Like

This is like SCOTUS blocking the Florida recount in 2000. The standard is to determine whether irreparable harm will be done if a stay/TRO/injunction isn’t granted. In 2000, Scalia came up with some spectacular BS about undermining faith in the electoral system to justify shutting down the recount.

So what’s the excuse this time?

29 Likes

Same as it was in 2000…

IOKIYAR.

26 Likes

When will we know if the court will hear the case?

5 Likes

This is only an administrative stay. Nothing more.

As background and Not to lose sight of what a lot of folks – myself included – think will show that Trump was laundering $$$ for the Russians – explaining why everything he does seems to help out Putin… Two Federal Appellate Courts – the 2nd Circuit in NY, and the DC Circuit – have now upheld subpoenas to Trump’s accountants Mazers for eight years of his taxes. The NY case is by the NY AG, the DC case is by house oversight committee.

In NY, Trump agreed with the NY AG to “stay” the case (not demand the tax returns be turned over immediately), provided that Trump filed any petition for review in the US supreme Court w/I 10 days. That time ran last week and Trump had to file a “Petition for Certiorari” That will likely be considered by the Court in conference to see if they take the case on either December 13 or more likely January 10. It takes 4 votes to grant the petition to review the case.

In the DC case, Trump lost 2-1 (the one judge who supported him was appointed by him) then asked the full 11 member Court to review the decision, and he lost that 8-3 (the other Trump judges voted for him, as did a Bush Judge). There, Trump will not only had to petition for review, but he had to immediately ask the Supreme Court for a Stay to allow him to file a Cert. Petition. A stay takes 5 votes. The order on the stay request is what just came down.

I should note that some judges (Breyer in particular) will vote for stays as a “courtesy”, even if he will not vote to grant cert, so a stay being granted does not mean a lot. The reality is that the Court is balancing Trump’s claims vs a delay until either Dec 13 or Jan 10, and it’s hard to argue that the delay - to allow the full court to consider his cert petition is not necessary.

Assuming that the Supreme Court takes the case, we would see oral argument in April, decision by week of June 29 (last week the Court sits). If they deny cert, then his taxes are releases immediately.

The opinion in the NY case is here: https://assets.documentcloud.org/documents/6538570/Trump-v-Vance-20191104.pdf
DC Opinion is here: https://www.cadc.uscourts.gov/internet/opinions.nsf/20C16C3C5721030C85258490004DE33C/$file/19-5142-1810450.pdf

83 Likes

Can any legal experts say if this is normal or if the fix is in?

1 Like

I’m reading elsewhere on TPM where this is normal procedural. I guess we’ll just have to stay tuned.

12 Likes

Waiting for Kegger Kavanaugh to sober up?

27 Likes

Incoming GOP endgame moves…

5 Likes

I think Trump will resign before having the taxes that were prepared for him and the taxes he filed be released. He is so obsessed with the taxes being hidden, There must be some major discrepancies. I see him working our a deal to leave office before they are released, even if it is only to congress. he will claim victory and move to Florida.

17 Likes

The Court will take the cases and announce its decision in late June. That will make for a wild campaign season…with a renewed impeachment proceeding.

10 Likes

The “stay” is not really even a stay. All that happened was that John Robert’s granted a stay until November 21, and ordered that the response to Trump’s request for a stay be filed on that day. Order is here:

This (a) is not a sign that the case will be stayed at all (that takes 5 votes) and (b) the time - only 3 days - is IMHE unusual. Says Roberts at least is aware of the timing issues.

All this suggests is that we are likely to have a decission on stay (to grant one until Cert is addressed on Dec 13 or Jan 10, or deny one which tips the hat the Cert Petition will be denied) on November 21 by the end of the day.

Adding a P.S. to get a stay on appeal the Court “balances” four factors: (1) whether the petitioner made a showing that it is likely to prevail on appeal; (2) whether absent the stay, the movant would be irreparably harmed; (3) whether the issuance of the stay would substantially harm other parties in the proceeding; and (4) the public interest.

What I don’t know, and will find very interesting is how the Court will view issue (1) and also what possible prejudice there is (issue 2). The reality is that unless Trump’s taxes show criminal behavior, then their is no “irreperable harm” in his records being turned over. And if his records show criminality (or support impeachment) than Trump is not only unlikely to succeed on the merits (issue one) but the stay would harm the House who is excercising it’s constitutional powers.

Watch carefully if the Court grants a stay (which I would think is over 50% chance, even if the standard is not met) if the Court sets tight time lines. I would not be surprised to have say Breyer and Roberts (concerned about legitimacy) say “ok, we will grant a stay, but we want the petition for cert fully briefed so we consider it on December 13” and set some quick briefing deadlines.

49 Likes

This is really not like that. In disputes that will be mooted when action is taken, stays are the rule, rather than the exception.

5 Likes

Routine.

7 Likes

In my view, this is not a surprise and really what would be expected here.

4 Likes

To be a little more precise, an administrative stay like this (which allows a response to the petition, and does a temperary stay until that response is filed and the stay request is considered) IS not only the “rule” but I can’t think of a situation where it would not be granted.

That said, the 3 days time (to November 21) strikes me as very short. Perhaps someone with more experience at the SCTUS than me knows otherwise. My experience is that the response is usually due two weeks later.

13 Likes

Also, always include this background that gets lost in the story, and neglecting it tends to normalize Trumps aberrant behavior:

“Vance has said his office needs the records for its investigation into alleged hush-money payments during the 2016 campaign to Stormy Daniels, an adult film actress, and to former Playboy model Karen McDougal.”

This is not a fishing expedition, so let’s not let people forget that.

26 Likes

I can’t help but think that this is all theater leading up to what will ultimately happen. Trump will lose at the Supreme Court (anywhere between 5-4 and 7-2, assuming they hear the case), but he’ll assert that, as a separate branch of government, he is not bound by their decision anymore than he is by a Congressional subpoena. He’ll have some measure of cover, because you can expect something to that effect to be included in the dissenting opinion.

That’s when the Constitutional crisis will really get going.

4 Likes

These records are not held by Trump, but by a third party. So Trump is not being asked to do anything (which is part of why the Appellate Courts said there is no legitimate issue here). There is zero chance that Mazers will not respond to a subpoena that was approved by the US Supreme Court. Defying a court would get their accounting license pulled really fast…

23 Likes

This is dangerous territory for Roberts. I’m sure he’s wishing for some other, more sane president to be in office at this point.

If they rule for Trump, they will forever be looked at as a partisan court. I’m not sure that Roberts wants that to be his legacy.

I think, and I could be wrong, that they will come down on the side of the lower courts. There really isn’t a reason for them to rule otherwise. It’s settled law that the House Oversight Committee has broad powers to investigate. Additionally, by law, the House Ways and Means committee can have anyone’s tax return they so desire.

It would be a perfect excuse for Roberts to simply say “thanks, but no thanks” and let the lower court rulings stand.

14 Likes