Supreme Court to rule on privacy of Trump’s finances

Setting itself a constitutional task that could have a huge impact on presidential politics in 2020, the Supreme Court on Friday afternoon agreed to rule on three appeals by President Trump seeking to deny access by congressional and state investigators to his personal and business records, including tax returns.

The decisions in the three cases are likely to lead to the most important ruling on presidential powers and legal immunity since a 1974 case involving President Richard Nixon and in 1997 in a case involving President Bill Clinton.

The Justices set a schedule for their review that is likely to bring final decisions in the very midst of the presidential election campaign, late next June.

But that schedule will mean that the decisions will not emerge until well after the effort in Congress to impeach President Trump will have been resolved, thus keeping his financial data from being any part of that process.

The Court did have the option of planning a speedier review, so it is possible that it chose to follow a schedule that would avoid having the records become a factor in the impeachment proceeding. By the time of public hearings by the Justices in the cases, in late March, the President probably will have remained in office because the Senate probably would have decided earlier in the new year not to remove him from office.

It was a matter of pure coincidence that the Court took its action on the same day that the House Judiciary Committee had voted to approve two separate articles of impeachment – rather like charges of misconduct – against the President. Those charges – abuse of presidential powers and obstruction of Congress’s inquiries – will be voted on by the full House, probably next week. After that, the Senate will hold a proceeding, perhaps a full trial on those articles, probably in January.

It is possible that the final decisions could go the President’s way, and thus his financial records would remain private. But, if the decisions do go the other way, and investigators gain access to those private papers, their contents – if they actually became public – could be a major political issue in the campaign for the White House.

It is also possible, if the President should lose the cases, that the records might contain information that could lead to criminal charges after he leaves the White House. His lawyers have claimed that he is legally immune to being charged with a crime and from being tried while he remains in office.

The Court’s agreement to take on the controversy – a move that had been expected – not only could have profoundly important significance for the President personally and politically but also could establish historic constitutional precedents on the immunity of the nation’s highest government officer to being investigated for possible financial misconduct.

One of the three cases involves a subpoena by a state grand jury in New York – an entity with the power to charge crimes – seeking eight years’ of the President’s personal business and tax records and the business records of several companies that he and his family own. The grand jury grows out of suspicions about how the President may have used his business firms in transactions designed to help him get elected. Lower federal courts ruled that the subpoena, filed against the President’s accounting firm, had to be obeyed.

One of the other cases involves a subpoena by congressional investigators with the House Oversight Committee, seeking the same records – and for the same reasons – as the state grand jury is seeking. That subpoena, too, was filed against the President’s accountant, and it, too, has been upheld by lower courts.

The third case involves subpoenas by two congressional investigators with two House committees – the panels on Financial Services and on Intelligence – that are seeking data on how the President and his family members have operated their businesses, including overseas operations. The two committees are seeking financial records held by one or both of two banks: Deutsche Bank and Capitol One. Again, the subpoenas have been upheld by lower courts.

While the President has lost his challenges to the subpoenas in the lower courts, none of those demands for the data will be enforced while the Supreme Court is reviewing the cases and until it has decided them. The Court itself has blocked the congressional subpoenas and the New York state prosecutor has promised to hold off enforcement while that case is before the Supreme Court.

None of the three cases involve any demands for the President’s official papers and information regarding his service in the presidency, and his lawyers have not claimed any legal privilege that would protect the privacy of official records from forced disclosure. In each case, though, the President’s lawyers have argued that enforcing such subpoenas will interfere with the performance of his official duties.

The New York state grand jury case involves the most sweeping legal claim by the President’s lawyers – that is, that he has complete legal immunity to any investigation or any actual criminal prosecution when the probe or the prosecution is by a state or local official. The President’s lawyers are not making as sweeping an immunity claim in reaction to the congressional subpoenas.

Under the Court’s new orders on Friday, the New York case will be heard and decided by itself, while the two congressional subpoena cases will be combined for hearing and decision together. The hearings will be back-to-back, sometime during the public session of the Court that begins on March 23.

Aside from the absolute immunity claim in the New York state case, these are the issues that are raised in one or more of the newly granted cases:

• Is a subpoena a legally proper way for investigators to demand access to the President’s personal and private records, if the demand is not made directly against the President but against the financial or accounting firm that actually holds and maintains the records?
• Since the President is the highest official of the government, must any investigator’s demands for his personal and business records satisfy a higher legal standard than would apply if an ordinary citizen were the subpoena’s target?
• Does it violate the Constitution’s mandate to keep the branches of the federal government in separate spheres, if Congress demands the personal and business records of a sitting President?
• Is there any role for the courts to play in deciding controversies between the two other branches of the federal government – Congress and the presidency – because the Constitution mandates that they work out their differences?
• Did any of the congressional committees have the actual legal authority to issue a subpoena for the President’s personal and business records, because – it is claimed – the subpoenas were not explicitly authorized either by the rules of the House or by any vote of the full House?

Lawyers will file written legal arguments in the coming weeks, in advance of the hearings in March. The Justices probably will take several weeks to finally decide the cases.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.