Schrödinger’s Tax Returns

The two Trump tax return cases were argued before the Supreme Court yesterday. The first involved three subpoenas from House of Representative committees. The second a subpoena from New York County District Attorney, Cyrus Vance Jr. While both involve tax returns and Trump, they are very different cases with very different issues.

That said, both have an overlapping problem. What limits, if any, should there be on such actions that involve, indirectly, the person who holds the presidency? At the moment, that person is Trump, who raises a great many problems because of who he is, what he’s done, and how much he’s despised. But whatever rule is handed down, it will apply not just to Trump, but to every president who follows.

If a congressional committee controlled by the party opposing the president decides to go after the president, whether to dig up dirt to use against the president or just to embarass or harass the president, they could subpoena anything from medical records to credit card bills. Maybe there will be something that can weaponized against the president. Maybe it will just be an annoyance. But if Congress has the unfettered power to subpoena anything they want as long as it has a “plausible legislative purpose,” it can use that power to go after every opposing party president in the future. Remember, it might be Trump today, but he won’t be president forever.

As to the district’s attorney authority to subpoena, the problem is somewhat different. While the authority to investigate and issue grand jury subpoenas is well established, objecting to the subpoena would be little different for the president than anyone else. Much as the argument was rejected in the Paula Jones case, the burden of dealing with it wouldn’t be so much of a burden on the job of president as to make him unable to perform the duties of office.

But there are about 2300 local prosecutors in the United States. What if it wasn’t one subpoena, but 2300? Or, a bit more modestly, one percent, 23 subpoenas? There are procedural stumbling blocks, such as jurisdiction, but presidents get around, so it’s not entirely outside the realm of possibility.

The Vance case lent itself to possible limit, a heightened scrutiny of such subpoenas as to their justification and necessity, when directed at the personal effects of the president. But the lawyer arguing for the House in Trump v. Mazars, Douglas Letter, failed spectacularly when pushed.

In today’s oral argument in Trump v. Mazars, the attorney for the House of Representatives was asked (repeatedly) to identify a limit on Congress’ subpoena power, and he came up empty. He was unable to identify any information about the President that Congress could not demand.

The problem is that Congress can theoretically legislate about anything, and can, if one shuts one’s eyes tight enough, come up with a “plausible” connection between its subpoena and a subject of legislation. If they want President Warren’s medical records, they can claim it’s related to legislating about health care. If they want President Sanders’ credit card bills, they can claim it’s related to legislating about banking legislation. It may be nonsensical, but then, so was the rationale for subpoenaing Trump’s tax returns. Bear in mind, it’s not what you wish the reason was, but what the House said the reason was.

Cornell prawf Mike Dorf was similarly critical of Doug Letter’s whiff at offering a single example of any limit on Congress. Josh Blachman, on the other hand, suspects Letter didn’t blow the question at all, but rather intentionally refused to offer any limit to place the Court in the more difficult position of having to give Congress all or none.

Was Letter “unable” to answer the questions in Mazars? Or was he “unwilling” to provide a limiting principle? I lean towards the latter. It is very likely that his client, the House, refused to concede any additional limits on its own powers. If the Court wanted to impose such limits, so be it; but the House would not acquiesce.

Here, the House may have not wanted to risk further cabining their subpoena authority for future cases that do not involve the President. After all, the House conceded that Article II and executive privilege provides some limits. But the questions from the Justices went further. Moreover, when pressed on a limiting principle, Letter had answers at the ready. The answers were largely non-responsive, but he didn’t stumble like he did at other times. I think Letter’s responses were deliberate.

What makes this case controversial is that feelings toward Trump, who claimed he would disclose his tax returns when his audit was over but never did, and still hasn’t, are so extreme. What they will reveal remains a mystery. While they won’t have a line that says “Payments from Putin for doing his bidding,” it may well show things that are deeply embarrassing, potentially unlawful or hypocritical. If they were good for Trump, he would have disclosed them. That he hasn’t is about as clear a measure that he’s got something to hide.

But will Doug Letters’ failure, or refusal, compel the Supreme Court to rule that there are no limits on what a congressional committee can subpoena from a president? Even if they are claimed to be sought and held in confidence, they will be revealed with impunity. Under the circumstances, there is good reason to suspect that Josh has a point, that the House will never have as strong an argument with public support for unfettered authority given that Trump is the target. Why concede any limit on Congress’ power when they can put the Trump screws to the Court, making the Court come off as the bad guy who would deny the public’s representatives the ability to do their job? Few will give much thought to how this will impact President Ta-Nehisi Coates.

On the other side, the Vance subpoena has a far better chance of prevailing, but because it’s a grand jury subpoena, and given New York’s strict grand jury secrecy laws, it’s unlikely to see the front page of the New York Times. A win by Vance will be unsatisfying, as it will put Trump’s tax returns in Vance’s grasp but still not be available for public inspection and consideration. And even if Vance gets them, there remains a question of what he can legally do with them anyway.

18 thoughts on “Schrödinger’s Tax Returns

  1. Hunting Guy

    It’s Trump and NY.

    You expect the Grand Jury files to remain secret?

    Benjamin Franklin.

    “Three may keep a secret, if two of them are dead.”

    1. SHG Post author

      NY has very clear grand jury secrecy laws, so if it somehow manages to come out, it’s Vance’s ass on the line and he knows it. Much as he might hate Trump, he’s not ready to give up his DA desk chair yet.

      1. Hunting Guy

        I hope you’re right but being the cynic that I am, I can see someone with access leaking the information “For the greater good.”

        1. SHG Post author

          I’m not saying it can’t (or won’t) happen, but that at least we know where to point the fickle finger of fate.

  2. B. McLeod

    The House wants this to be like impeachment, where the “grounds” are whatever they frame in the articles and the only protection is the president’s political currency with voters. Once again, the morons pushing this are oblivious to the point that the asserted power, if established, will also be used later on by their opponents to harass a president they support. To them, it is only and all about Trump, and they are simply extremists, lost in the momentary madness of their crusade to pull him down.

  3. Onlymom

    Maybe the house counsel sould have responded with

    “We are sorry yo be here because we have a president for the first time sine income tax forms were crested dud not release his. In every other case evey possible candidate released them. No law needed because they were honest enough to release them. Trust us just as soon as his two-faced conniving self is out of office there Will be a law to require it. For now wr require you held as the 3rd part of the check on government to toss his asinine arguments and order their release.”

    As for the stupidity of what limits are on Congress or DA’s going too far. We have the same one we have had from the beginning. Go too far and it becomes the Voters job to can them.

    1. SHG Post author

      I would have trashed this because it’s just dumb, but to show my appreciation for your not suggesting we either gun down Congress, the DA or the Supreme Court, I posted it. It’s still dumb, but not violent, a positive step.

  4. John Barleycorn

    Does this mean I am gonna get the mother of all grand jury posts sometime this year? I have been waiting more than a decade…

    P.S. These live audio feeds are not making your judge worship inclinations very appetizing even if Little Boy John can annunciate pretty well his band of merry pranksters don’t exactly come across as uniquely qualified inquisitors.

  5. phv3773

    I think it would be very difficult to define a limit on Congressional subpoenas since context matters so much. A trivial subpoena could be harassment if one of a flood of other demands, and an exceedingly deep and a complex one could be a totally justified investigation into the workings of the government.

  6. Jardinero1

    You state that Congress can theoretically legislate on anything they want. Directly related to the question of a limiting principle for Congressional Subpoena power is the question of a limiting principle to Congress’ legislative power. The plain language of the Constitution limits the powers of Congress to 17 items, leaving the rest to the States who enjoy plenary legislative authority. Since the New Deal, successive court cases have significantly expanded the legislative power of Congress. There is a risk to Congress any time they go this route. The opposing counsel could argue that the subpoena is not allowed because the proposed statute exceeds what Congress is allowed to legislate. Congress risks rolling back not just its subpoena power but its legislative power. This was and is still a silly notion, but with the addition of ever more Federalist Society judges; at some point, with some case, Congress legislative authority will hit a wall and start to be rolled back. This assumes, of course, we continue to have a President who appoints Federalist Society judges.

    A non-legal consideration about the tax returns is that Trump challenges the subpoena not because the returns reveal anything detrimental, but rather that they reveal nothing detrimental at all. It is to the benefit of Trump to drag it out, even if he loses. This is a huge distraction for the media and those who oppose the President. It drags on and on and on, sucking all the wind out of the room. And when the opposition finally gets their hands on those returns, what do they reveal? Nothing. Score another one for Team Trump.

  7. Bryan Burroughs

    “That he hasn’t is about as clear a measure that he’s got something to hide.”

    Pretty concerning to hear a CDL utter this seriously. It may well be that he has something to hide, but even if he doesn’t, that doesn’t mean Cheeto should be willing to give up anything he’s not required to. It’s akin to prosecutors suggesting that taking the 5th or lawyering up meant the defendant had something to hide.

    1. SHG Post author

      i get your analogy, but it’s not the same. Running for president is a bit different than exercising his right against self incrimination. Had he said he didn’t think his tax returns were anyone’s business, it would be closer (but still not the same), but he didn’t.

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