SCOTUS’ Choice: Trump or the Rule of Law

David R. Lurie

As his losses pile up, Donald Trump has made it plain he expects the Supreme Court to serve as his ultimate protector from the overreaching “Deep State” and its allies in Congress. 

We’re about to find out if Chief Justice John Roberts and other members of the Supreme Court’s conservative majority will accept Trump’s designation of their institution as his personal guardian. The court would do so at its own peril, as stepping in to protect the president could help elect a Democratic president and Senate, and encourage them to put a quick end to the court’s long-standing conservative majority. 

It’s Not Over: Trump Is Stalked by Investigations He Tried to Stonewall

Notably, the court has yet to weigh in as Trump has stonewalled nearly all efforts to gain access to key White House witnesses and documents for months. But it may weigh in soon, now that a federal appeals court in New York upheld a district court ruling ordering Trump’s accounting firm to hand over Trump business and financial records in its files, including the tax returns of the President and his businesses. 

The case raises issues going “to the heart of our Republic,” Trump attorney Jay Sekulow said as he declared that Trump will petition the Supreme Court for relief. Under an agreement between the parties, Trump will be asking the court to decide the case during its current term, meaning a reckoning is coming. Trump’s argument that his accountants cannot be subpoenaed for his financial records is quite weak, particularly given that the court upheld a subpoena directly to the president for the White House tapes during Watergate, in its 8-0 United States v. Nixon decision. 

Apart from this week’s decision, in the upcoming weeks and months, Trump could well be petitioning the Supreme Court to protect him from lower court rulings requiring a number of other disclosures, as well as testimony from his acolytes. For example:

  • Last month, a D.C. federal court ordered the Department of Justice to turn over materials from Robert Mueller’s grand jury investigation to congressional impeachment investigators in a decision that is likely to be upheld on appeal; and

  • A growing list of current and former White House officials have refused to comply with subpoenas in the congressional impeachment inquiry, based on a presidential claim of “constitutional immunity” that has never been recognized. While the House has withdrawn a subpoena of Deputy National Security Adviser Charles Kupperman that was the subject of litigation in a D.C. federal court, another judge is considering the validity of the immunity argument in a case arising from a subpoena issued to former White House Counsel Don McGahn.

Add it up, and it seems likely that Trump will soon be looking to the Supreme Court for help on multiple fronts. Indeed, the court could be the only thing standing in the way of exposing information regarding Trump, and the operation of his businesses and the government, that the president has single-mindedly sought to hide for years. 

Furthermore, the stakes of the upcoming Supreme Court battles go beyond the specific evidence at issue. Congress has already pierced Trump’s wall (there’s been a lot of that happening, seriously and literally) by obtaining the testimony of some witnesses who have ignored White House instructions to defy congressional subpoenas. But a Supreme Court ruling in Congress’ favor could amount to a heavy blow to Trump’s claim that the impeachment proceedings are a partisan witch hunt. Accordingly, the stakes for Trump could not be higher.

This is hardly the first time the Supreme Court has been called upon to render a decision in a high-profile case implicating who will become president, or whether a sitting president will remain in power. Such decisions almost inevitably have a heavy impact on the court’s reputation, for better or for worse. 

The court emerged from Watergate with its reputation enhanced, after justices appointed by Republican and Democratic presidents (including Nixon himself) joined together to order the president to comply with a court order to turn over the tapes. Justice Brett Kavanaugh has described the Nixon decision as among the “greatest moments in American judicial history,” given that the courts “stood up to the other branches, were not cowed, and enforced the law.”

By contrast, the Supreme Court diminished itself when a conservative majority of a split court took it upon itself to determine the outcome of a presidential election in favor of a Republican. The Bush v. Gore decision diminished the court all the more, given that it was grounded on a broad application of the Constitution’s Equal Protection guaranty that the majority preemptively refused to apply to other cases, including those involving racial discrimination. 

Furthermore, the court’s desired reputation as a neutral body, devoted, in Chief Justice Roberts’ words, to calling “balls and strikes,” is currently under great strain. The GOP-controlled Senate held a court seat open at the end of the Obama presidency, allowing Trump to fill it with his own nominee, Neil Gorsuch. And since Trump took office, the court has issued a host of decisions strongly favoring the president’s aggressive use of executive authority. These developments have already led some to call for “rebalancing” the court by adding additional seats to the tribunal if the Democrats take control of the White House and obtain a majority in the Senate in 2020.

Therefore, the stakes of the potential judicial tests of Trump’s efforts to defy Congress may be as high for the court as they are for the president.

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