By Robert Willmann
The U.S. Supreme Court agreed last year in December to hear three cases that can directly affect the relationship between the executive and legislative branches of the federal government, and between federal courts and State legal systems. Two of them involve subpoenas from three committees of the U.S. House of Representatives, which were consolidated into one case in the Supreme Court. The third one is about a subpoena from the Manhattan District Attorney's Office through a grand jury.
Decision time is here, as the court has said that it "will announce all remaining opinions ready during this Term of Court tomorrow morning, July 9, 2020, beginning at 10 a.m. [eastern time]".
The tantalizing part is that the subpoenas are for tax returns and financial records of president Donald Trump.
I think that the more important case of the two is the one about a grand jury subpoena from the Manhattan DA's office. It was discussed here on SST in November 2019, after the federal Court of Appeals for the Second Circuit upheld the decision of the trial court (on an alternate ground) and ruled that the grand jury subpoena was to be honored and enforced–
The basic question is to what extent, if at all, a federal court can intervene in State criminal law processes. In predictable fashion, Trump has taken an extravagant position and has claimed that a president is absolutely immune from State criminal law process while in office, even when the subpoena is not directed at him but to his accounting firm or to a financial company that has the records, and the records are not the result of official presidential conduct or communications. His fallback position is that if he does not have absolute immunity, the District Attorney has to show a "heightened need" for the subpoenaed records, and has not done so.
The three House committees that issued subpoenas are Oversight and Reform, Financial Services, and Intelligence.
The House subpoenas create the classic political struggle between the executive and legislative branches of the federal government. The dispute focuses on whether the subpoenas are a pretext to fish around in a president's personal financial affairs to make political hay and to harass a president, or whether there is a legitimate legislative purpose for getting the financial information.
When the Supreme Court agrees to hear a case, a statement is put out with the "question presented" for review and decision. The issue about the state grand jury subpoena is in case number 19-635 and is here–
The issue about the Congressional subpoenas is in case numbers 19-715 and 19-760, which have been consolidated, and the statements are here–
The private businesses the subject of the subpoenas are Mazars USA LLP, Trump's accountants; Deutsche Bank AG; and Capital One Financial Corporation. They have stayed out of the brawl and have continually filed letters saying that they are taking no position on the legal issues raised or on the merits of the cases. If the subpoenas are determined to be valid and enforceable, then they will turn over the records.
The subject of Trump's tax returns and the historical role of accountants is an interesting subject, and an article appeared on 6 May 2020 about that, from the ProPublica organization. It traces the accountants over time, and the Mazars accounting firm came into the picture around 2010, when it bought the group in a merger that was doing Trump's work at that time. The article contains detail and the writers did do some research–