‘Hey, throw us a bone here!’ (Photo by Win McNamee/Getty Images)
Looks like the Supreme Court is limbering up to duck hard on the Trump tax cases. Justice Roberts just needs to find some reason, any reason at all, to spare himself the embarrassment of having to decide whether Trump’s bankers and accountants have to hand over his financial records to Congress. Because, blech, who wants to wind up getting shit-tweeted by the president, right?
The law is pretty clear that Congress is entitled to enforce its subpoenas as long as it can point to legitimate legislative or oversight purpose. But getting crosswise with the president is very unpleasant, so maybe Solicitor General Francisco wants to throw his old Fed Soc pals a lifeline? Hey, what if congressional subpoenas are magically transformed into a political question if they relate to the president’s company? No one raised this issue in the District Court, or when Trump appealed to the D.C. Circuit. But desperate times call for desperate measures, right?
Which is why this morning’s orders list includes an instruction that, “The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” These will be due on May 8, a full four days before the cases are scheduled for virtual oral argument on the 12th.
Trump himself has never claimed that the congressional subpoenas issued to his bankers and accountants after Democrats took back the House in 2018 present a non-justiciable political question. In fact, he spent the past two years arguing that the courts must instead ride to his rescue and perform a psychological assessment of congress’s “true motives,” rejecting the House’s oversight as purely political and thus non-enforceable. Which is ridiculous, of course. But so is arguing that a lawsuit by a private citizen to stop a private company complying with a legislative request for documents presents a political question verboten to the courts, and yet here we all are.
Trump’s reasoning has been roundly rejected by District Judges and the D.C. Circuit Court, which ruled that Deutsche Bank, which loaned the president and his company billions of dollars over the past two decades, and Trump’s accountants at Mazars must comply with a congressional subpoena for the president’s financial records.
If the Supreme Court does decide to grab on to the political question doctrine and punt, precedent be damned, it puts the ball entirely in Deutsche and Mazars’ court. The companies themselves will have sole discretion over whether to comply, and they’ve already indicated that they intend to cooperate. Which is exactly the same outcome as if the Court had just done its damn job, applied the law neutrally, and affirmed the legality of congressional oversight.
And all this dodge will cost is the Court’s credibility as a non-partisan actor and Congress’s ability to enforce its own subpoena power. What a deal!
Cases and controversies: Congress, the subpoena power and a “legislative purpose” [SCOTUSblog]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.