Lawyers for President Donald J. Trump and a state prosecutor in New York have reached an agreement to put before the Supreme Court in its current term the historic constitutional dispute over disclosure of the President’s tax returns. The two sides notified the U.S. Court of Appeals for the Second Circuit in New York City on Monday about their plan.
The plan would have to be accepted by the appeals court and the Supreme Court. The timing also depends on how quickly the appeals court makes a decision on the dispute. The case is moving on an expedited schedule in the appeals court, and it will hold a hearing on it Wednesday morning.
So far, the President is losing in his determined effort in the courts to keep his tax records from being handed over for review in any investigation, state or federal. The New York case tests whether the records can be examined in a state criminal investigation now underway by the prosecuting attorney in New York City, Cyrus R. Vance, Jr. A separate case now moving through federal courts in Washington, D.C., involves a demand for Trump tax data by the House Oversight Committee, a major investigating panel and one that is now taking part in the presidential impeachment inquiry.
In the New York case, a federal trial court judge early this month ruled against Trump’s sweeping claim that he is immune, while in office, from being prosecuted or even investigated in a state case. The judge ordered an accounting firm which has years of his returns to turn them over to Vance and a state criminal grand jury. That case is on hold while Trump and his accounting firm pursue their appeal in the Second Circuit Court.
In the case in Washington, D.C., a different appeals court, the U.S. Court of Appeals for the District of Columbia Circuit, last week upheld a federal trial judge’s ruling to enforce the Oversight Committee’s subpoena demanding Trump tax records from the same accounting firm. That decision is on hold pending a likely Trump appeal, but in a new filing on Monday, the Oversight Committee asked that the D.C. Circuit put its ruling into effect immediately, or else give the Trump team only a week to begin an appeal.
Meanwhile, in the case in New York, the two sides’ deal on further processes included these terms:
First, Prosecutor Vance will not seek to enforce the grand jury demand for the tax records for now and also for a period of 10 days after the Circuit Court has ruled on the validity of that subpoena.
Second, during that 10-day span, the loser of the case in the Circuit Court must file any appeal to the Supreme Court.
Third, both sides are to file their legal papers in the Supreme Court within a further of 10 days – much shorter than the usual timetable.
Fourth, if the President loses in the Circuit Court and does appeal to the Supreme Court, he must ask the Justices to hear and decide the case during the current term, which is expected to run until late June next year.
Fifth, if the President does appeal to the Supreme Court, Vance will not seek to enforce the records demand until the Justices either refuse to hear the President’s case, or until it decides the case in a final way.
The two sides in a legal case cannot guarantee or assume that the Justices will follow their plan, since the Justices have complete discretion to even hear such a case. However, because the constitutional stakes are so high in this dispute, it seems almost a certainty that the Justices would step in to rule.
The schedule at the center of Monday’s agreement would likely mean that the Justices would be reviewing the dispute as the presidential election campaign of 2020 is well under way. Separately, it is unclear how that schedule would affect the ongoing presidential impeachment proceedings in Congress.
Leaders of the House have given some indication that they would prefer to complete their part on impeachment by the end of this year, and Senate leaders have vowed to promptly hold a trial if the House does approve articles of impeachment. (Articles of impeachment are in the form of formal charges which, if imposed by the Senate, would lead to a President’s removal from office.) Such a Senate trial, of course, would be presided over by Chief Justice John G. Roberts, Jr., as the Constitution requires. The Supreme Court’s work on its own business would have to accommodate the Senate trial schedule as much as possible.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
