NOVEMBER 23, 2019
The impeachment inquiry into Donald Trump’s Ukraine dealings has hit a lull after a busy week of witness testimony. Now, all eyes have turned to the high court, where justices are weighing whether to take two cases about the president’s taxes that could end up influencing impeachment proceedings.
The justices don’t have to take the two tax matters, but they likely will decide whether or not to do so as early as next week. In filings from the House of Representatives in one of the cases, politicians pleaded with the justices to weigh in, citing the impeachment inquiry as a reason the court must enter the fray and provide clarity.
The cases tied to Trump’s taxes began before the impeachment inquiry. But as CNN Supreme Court legal analyst Joan Biskupic points out, if the high court chooses to resolve these tax matters—finding that the executive does have to disclose his finances in those cases—it could influence the evidence available in the constitutional process, too, “and would certainly color this politically charged moment in American history.”
From the justices’ perspective, that’s not exactly a ringing endorsement, however. The chief justice, who will have to preside over a Trump trial if the House drafts and votes to pass articles of impeachment, likes to give the impression that law and politics are separate, insisting the judiciary is a nonpartisan body. To the extent that he’s been successful at convincing Americans of this, his involvement with impeachment proceedings—or cases perceived as related—will surely undermine this position.
The justices are thus in a difficult situation in both cases. If they choose to take them they must decide whether Mazars USA, Trump’s accounting firm, should turn over financial information from before he was elected to a New York prosecutor. (The latter is investigating allegations that he paid hush-money to a Playboy model and a porn star to keep their relationships quiet during the 2016 presidential election.) A lower appeals court found that disclosure would not interfere with the president’s constitutional duties, and Mazars says it will release the records if the high court agrees.
Meanwhile, the other request arises from the House of Representatives, which subpoenaed Trump’s financial documents in the context of an investigation by the Committee on Oversight and Reform. The committee is tasked with ethics oversight and legislation and says it is seeking non-privileged financial records relating to Trump’s business entities to fulfill its constitutional duties. The House brief (pdf) states:
Consistent with its broad jurisdiction and principal investigative role, the Committee has undertaken a series of investigations concerning government ethics and conflicts of interest throughout the Executive Branch, the accuracy of President Trump’s financial disclosures, GSA’s federal lease to Trump Old Post Office LLC for the site of the Trump International Hotel, and possible violations of the Emoluments Clauses.
A DC Circuit Court found the documents should be disclosed.
Trump’s attorneys argue that both tax requests are illegitimate and dangerous. They want the high court to take the matters up for the sake of all presidents to come. Otherwise, they say, from here on out, in a nation politically divided, the president will always be subject to legal attack while in office and distracted from his constitutional duties by pesky minor officials who aren’t entitled to the information they seek.
In fact, Supreme Court precedent indicates that Trump’s taxes likely would be released, at least based on a 1974 ruling regarding Richard Nixon’s records when he was at the center of an impeachment inquiry. It may be that the president expects a court of four liberals and five conservatives to end up finding for him, deciding that his accountants don’t have to disclose his finances. There are arguments for distinguishing his cases from the holding in Nixon.
But that very ruling has been lauded by Trump high court appointee Brett Kavanaugh as one of the great examples of the independence of the American judiciary. He said during his confirmation hearings that the case proved “no one is above the law in our constitutional system.”
Shared political ideology isn’t necessarily a guarantee that the justices will agree with the president. It wasn’t in Nixon’s case, and hasn’t always been for Trump and the current justices.