In a remarkable achievement for Chief Justice Roberts, two cases involving subpoenas directed to holders of Trump documents were decided on July 9, 2020 by seven to two in the Supreme Court.
The dissenters were Justices Alioto and Thomas. But Trump appointees Justices Gorsuch and Kavanaugh voted with the majority. Chief Justice Roberts wrote the majority opinions in both cases.
The District Attorney of New York County Case
The subpoenaed document holders, Trump’s accounting firm and Deutsche Bank, took no position when Trump sued District Attorney Cyrus R. Vance to bar the subpoenas in the United States District Court for the Southern District of New York.
Trump lost before federal judge Victor Marrero.
On appeal, the Court of Appeals for the Second Circuit decided only two issues: that because of Trump’s position as President his documents were not absolutely immune nor did Vance have to show “heightened need” to get them.
The Supreme Court affirmed the Second Circuit and sent the case back to the lower court to allow Trump to argue other defenses to the subpoena and to seek to modify the scope and breadth of Vance’s subpoena.
Presumably the case will return to Judge Marrero to decide matters not previously decided. The learned masters of the media are predicting that the process on remand will be lengthy and will extend well beyond the November election. Maybe so. Maybe not.
Vance will seek to expedite the process before Judge Marrero. Trump’s lawyers will vigorously demand many months to prepare. The schedule is in Judge Marrero’s hands.
As the documents are litigated, leaks are always a possibility, not from Vance or the court, but from others. I have a pool going on when the New York Times’s Maggie Haberman will publish the first of these. My guess: a week from Friday, July 10.
In the litigation in the District Court it is highly likely that the scope and breadth in what Vance is seeking will be reduced. That always happens.
The Congressional Case.
Subpoenas from three congressional committees seeking documents from the same entities as in the Vance case was litigated in the District of Columbia district court and in the Court of Appeals there. Trump lost.
The Supreme Court reversed and vacated the Court of Appeals decision because the court had not considered separation of powers issues that arise when the legislative branch seeks presidential documents even when they antedate his service as president.
Since the committees have to start over, this litigation will certainly not be decided before the November election.
There is one committee request that is wending its way through the courts and has not been decided by the Supreme Court. Under legislation, the House’s Committee on Ways and Means, the tax committee, has the right to demand that the Treasury turn over specified tax returns and the Treasury “shall” turn them over.
The committee demanded Trump’s returns. Secretary Mnuchin declined because he reckoned there was no valid legislative purpose in the demand even though that’s not for him to decide.
The Justices of the Supreme Court, having completed their cases, can now leave for extended vacations.
But where to? No Europe. No Canada. There’s no place like home!