ROBERT’S SUPREME COURT AND TRUMP ON TRIAL

The Supreme Court of United States America, (SCOTUS), is one of the three co - equal branches of Government. It is the final interpreter of the Constitution in effect deciding what is the law. It has time and again adjudicated between the different interpretations of the law by the Legislative and the Executive Branches. The scope of its decisions can and have had profound influence on the political, social, economic and cultural norms of the country. 

The Court faces an historic decision with regard to the release of President Trump’s taxes that have been subpoenaed by the Legislative branch of government and the State of New York’s Attorney General. Broadly speaking SCOTUS will be defining the scope of Presidential power. In this polarized society which serendipitously is reflected by a polarized Court, the Chief Justice John Roberts has a central and deciding role to play. 

In spite of perceptions that the Supreme Court has been a liberal body, in its two hundred and forty year history it has for the most part a highly conservative institution.  It is currently facing a crucial decision with regard to whether or not the taxes and business papers of the President Donald Trump can be legitimately withheld from a criminal investigation and the Congress of the United States of America. Not only is it a legal matter of great import it has crucial political significance. Trump, incidentally, has been promising that he would reveal his tax returns for nearly four years, but has guarded their contents with an iron will. 

The POTUS has given up on the lame excuse that he cannot release his taxes because he is being audited. In the alternative reality that he operates in, the fact that that is a lie is irrelevant.  All requests the Democratically controlled House of Representatives have made to the Trump WhiteHouse, in its legitimate oversight responsibility, have been rejected. Normally such disputes are resolved by negotiation between the two parties. In the current Presidency they are unsolvable because Trump, of The Executive Branch of Government, unprecedentedly does not uphold the legitimacy of the Legislative Branch. In order to legitimize his obstinacy he has sought the protection of the Third Branch of Government, The Judiciary. The issue has finally reached the Supreme Court for arbitration.

PRESIDENT TRUMP, JUSTICE ROBERTS, THE SUPREME COURT AND POLITICS

Over the past quarter of a century SCOTUS has been accused of being extraordinarily “political”. This perception has been reinforced in the Trump Presidency. Trump unabashedly ran on appointing more conservative judges to the Federal Courts and boasts particularly about his Supreme Court picks. It is common knowledge that he colludes with the Federalist Society on nominations for every judicial appointment. At his rallies and to whoever will listen the POTUS has openly inferred that the Supreme Court will back him in the current dispute. He matter of a factly states that his opponents, generally, will first appeal his Executive Orders to a California District Court, and win there and thereafter triumph in the Ninth Circuit Federal Appeals Court. Then the beef will land up in the Supreme Court where he will finally get a fair shake!

Chief Justice Roberts, himself a Conservative appointee, has been at pains to try and change the image of his prestigious body. He went as far as criticizing President Trump who simply sees the world as those who back him and the enemy. Roberts infuriatingly commented on yet another Trump attack on an “Obama Judge……who was a disgrace”. Roberts in a rare rebuke stated, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges who do their level best to do equal right to those appearing before them” The POTUS having the last word tweeted, “Sorry Justice Roberts….Obama judges have a much different view……it would be great if the Ninth Circuit had an independent judiciary….”

Supportive of the recent criticism of the Supreme Court’s alleged partisanship are a number of landmark rulings that have had profound political effects over the past three decades. Bush v Gore where the conservative court overrode the Florida Supreme Court’s decision to have a recount of the controversial election in Florida thereby giving the Presidency to George W. Bush. What made this decision so glaringly out of sync was the fact that voting procedures are constitutionally the prerogative of individual  States. To quote the late Justice Scalia when confronted with this anomaly, he snapped, “Get over it”. To this day the question is still asked as to what Bush’s majority in Florida was? The facetious answer is one. He won five to four.

The Roberts court narrowly ruled in the Citizen’s United case allowing fortunes to be spent in elections. In the process two novel interpretations of the Constitution were enunciated, namely that corporations are individuals and money is equivalent to free speech. The most recent decision to produce a sense of shock, again decided by five votes to four, was that SCOTUS would not interfere with gerrymandering of constituencies which had ended up in giving Republicans far more legislative representation than their numbers warranted. The irony is that the Court refused to involve themselves on deciding whether this manipulation was constitutional or not on the basis that it was a political issue. The explanation being ridiculous on its face because ruling in the Republicans favor was profoundly political.

It is in this context that Chief Justice Roberts, who has been one of the majority votes in cases since 2005 is trying to restore the integrity of the court. The questions to be resolved are whether the Presidency puts Trump above the law and whether or not Article II of the Constitution allows him to prevent the execution of requests of the Legislative Branch of the Government and subpoenas from the criminal legal system.

THE CASES TRUMP IS FIGHTING DON’T DIRECTLY DEMAND TAX RECORDS FROM HIM 

Although Trump is not the defendant in three separate actions for his tax returns he has employed vast resources to prevent the release of the latter. The legal retinue include counsel from the Justice Department which since the arrival of William Barr has acted like his personal in house legal team. He also has his personal legal representatives. 

The Attorney General of New York and the House of Representatives have issued subpoenas to Trump’s accountants and two of his banks Deutsche and Capitol One for the financial records. Both entities have agreed to release the documentation but the Trump army of litigants have objected. Their time wasting obstructionist interventions have involved six separate Federal Court clashes, where twelve Federal Judges have presided. Trump has lost each and every one of them. In several of the litigations the Judges were scathing in their rulings stating the POTUS is not a monarch and is not unanswerable to the law. 

The three cases involve two central issues - one, pursued by the House of Representatives, where the latter are arguing that Trump by obstructing their lawful requests to third parties is interfering with their constitutional right to oversight of the Executive Branch of government. The second authored by the New York State Attorney General’s Office relates to their right to investigate criminal matters which arose out of the conviction of his former personal lawyer Michael Cohen who went to prison. The court documents in that case indicate support for Cohen’s contention that he committed the crime at Trump’s behest. Trump has paid a substantial fine and seen the closure of his “Charitable Foundation” which he had illegally used for personal services. 

It is pertinent to take note of Trump’s defenses to this date which broadly speaking place the President above the law. Not only is arguing that a sitting President cannot be charged for a crime he, in addition claims that he cannot be investigated for one by anybody. His personal lawyers incredulously argued his famous brag that if he shot someone on Fifth Avenue New York he could not be investigated or charged. With regard to Congress’s requests to the relevant institutions for Trump’s records he has maintained that inter alia that if the courts allowed this to go forward there was no end of harassment that the President could be subject too. 

What struck Jay H. Ell in all these Court appearances including the subsequent Supreme Court hearing, is the contention that the President is far too busy and involved with pressing domestic and foreign affairs to respond to any of these requests. Not only is that factually untrue it is a spurious point. The President is not being asked to do anything, other entities are being subpoenaed for the documents not him. In fact if he is that busy how has he the time to become involved with litigation that does not demand any action by him?

It was all this backdrop that three sets of Counsel in the Age of Covid were to enter the virtual Supreme Court for oral argument. 

ROBERT’S SUPREME COURT, PRECEDENTS AND PRESIDENTIAL OVERSIGHT AND 

PRIVILEGE 

To many legal observers and constitutional experts there was the belief with six decisions against Trump leading up to this denouement and with the Supreme Court Precedents that this would be an open and shut case. The two overriding legal precedents involve Presidents Nixon and Clinton. In 1974 the Supreme Court unanimously ruled that Nixon had to hand over incriminating tapes that he had made of his conversations in the WhiteHouse which the Special Prosecutor had subpoenaed in his investigation of the Watergate saga. Nixon complied and the result was the bipartisan vote for impeachment in the House of Representatives. Nixon elected to resign. In 1997 the court once again unanimously ruled that Bill Clinton could be deposed in a civil case where he was being sued for sexual harassment. 

Unlike with Trump in Nixon’s situation he was directly involved in delivering the tapes. Unlike in Trump’s situation Clinton spent several hours in a deposition and presumably several hours preparing for it. It is also pertinent to note that Clinton responded to a subpoena from the Special Prosecutor while Trump’s personal lawyer at the time advised the POTUS against this as he would end up being charged with making false statements. In spite of the fact that Trump was not the recipient of the subpoenas for his financial documents the court’s discussion preceded as if he was the one being summoned!

Just one further relevant point with regard to  Congress’s Presidential oversight, the fact that the practice is so everyday should be at least part of the record. While Presidents generally are loathe to hand over documents there are none in living memory that have refused point blank to not only refuse to provide any documents but refuse to allow any employee past or present of his administration to appear as a witness in any investigation of him. 

The court has placed a limitation to civil litigation against a President once out of office. In 1984 the Supreme Court held that a President could not be sued civilly for actions taken as a President. This is an understandable concept as no one can take decisions, presumably in the best interests of a country, worrying about civil litigation years later. In fact such exemptions are common place in law where, for example a doctor can provide care at a motor car accident being exempt from being sued for any outcome of her help - “The Good Samaritan Law”. 

ROBERT’S  QUESTIONING IN ORAL ARGUMENTS

John Roberts must have had as a fantasy that somehow he could gain consensus on a ruling. Reality however dictates that he probably will be the swing vote. Twice in his fifteen year tenure he had surprised by joining the liberal minority - in upholding the constitutionality of Obamacare and denying the Administration putting a citizen question in the 2020 Census Form. The reason for the latter decision was not on the right of Trump’s administration to do so but rather that they had patently bogus reasons for their desire to do so. While every lawyer will caution not to read too much into the oral arguments attention was focussed on the Chief Justice’s questions for obvious reasons. 

The Chief Justice made it clear that the President might be too busy with national and international affairs, China was referred to specifically, to respond to congressional demands for tax returns. He commented, “Most Presidents have a pretty long to do list”. While Roberts made it quite clear that Trump was not immune from criminal investigations he neutered his observation by the “fear” that this could subject the President to have to respond to investigations from hundreds of state prosecutors across the country. Roberts then made the unbelievable negation of the Clinton precedent claiming that the President would have more distraction from a criminal complaint than civil litigation. Indeed preparing for an investigation into murder would be pretty burdensome!

AT THE END OF THE DAY

Anyone who is expecting Chief Justice Roberts to hold President Trump to account and reassure the country that the President is not a monarch, need not hold their breaths.

Not only in the oral argument was Roberts’s ignoring the Nixon and Clinton precedents his assumption that the President is being asked to do anything is totally false as outlined above. Even if he was correct that the President had to physically do the sending he needs reminding that all the previous incumbents since Nixon voluntarily made their tax documents public and in addition that the President should be able to be investigated for criminal activity. 

Robert’s may well use the argument that the Congress requests are political and thereby ignore the constitutional role of the Judiciary whose function it is to interpret the Constitution. Also that argument is absurd as indicated as whatever the outcome it will have vast political implications.

Trump will finally be able argue that he got his “fair shake”.

Jay H. Ell hopes he is wrong but however Robert’s parcels this he is pretty convinced that no one will see Trump’s taxes before the November election. The Chief Justice may even agree that the Attorney General investigation is valid but rule, in effect, that it’s contents will not be revealed till after the election.

Robert’s legacy is almost sealed. His court has to be the most divisive in history having, according to Senator Whitehouse he has delivered, since 2005 over seventy,  narrow five to four decisions - favoring Republican donors, hobbling pollution regulations, enabling attacks on minority voting rights, curtailing labor’s right to organize, denying workers the ability to challenge employers in court and expanding the NRA’s agenda.

The upshot will be that Roberts might well be coupled with McConnell and Barr as part of the Trump era. The Chief Justice apparently takes in the world around him as his reference to China indicates. He listened to every minute of the impeachment trial in the Senate where Trump’s perfidy was exposed. Here he has evidence on display of more unaccountability and possible criminality. Is this really the type of Presidency that Robert’s believes the Founding Father’s envisaged when they designed the Constitution to prevent another absolute monarch?