The U.S. Supreme Court issues a rain check on Trump taxes

9 July 2020 (Serifos, Greece) – Sitting on my rock in the Mediterranean, pondering today’s two U.S. Supreme Court decisions on Trump’s taxes, I now see his strategy to run the clock worked. In a nutshell the rulings say “There is no absolute immunity and the law applies to all presidents … starting with the next one.’

Yes, the Court handed Trump a loss today on his tax returns … but at a cost. It is very unlikely that the public will see them before they vote in November.

The big picture: Trump wanted two things from the Supreme Court: blanket immunity that would shield him and any president from all investigations; and to keep his financial records secret.

He lost badly on the law, but practically, it will be a long time – definitely not until after the election – before the public gets even a partial glimpse of his tax returns or other records. Chief Justice John Roberts in the 7-2 opinions:

The president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.

The court said Trump cannot block Manhattan prosecutor Cy Vance’s subpoenas just because he’s the president. That case will now go back to a lower court, where Trump’s lawyers can try to fight those subpoenas as they would for a client who’s not the president.

And Trump’s challenge to House committees’ subpoenas will also go back to lower courts, for new arguments over the balance of power between Congress and the president. The rulings give Trump the next best thing – a pathway to fight the subpoenas in a lower court. The standards are pliable enough and tough enough that Trump can go in there and make lots of arguments to thwart the subpoena of records. If I was Trump, I’d be pretty satisfied with what I got.

The bottom line: If Trump was going to lose this is a decent way to do it – with no immediate exposure to Congress and a path to delay past the election through lower court challenges.

Worse, as Cy Vance made clear in his press conference, Trump is vulnerable to state and local legal actions, even if he pardons himself for federal crimes. It also makes clear Trump has a better chance in them if he’s still president. So he’ll be even more willing to resort to desperate measures to win in November.

FURTHER THOUGHTS

I think most Americans would prefer a different era in which the Court was less central to its politics and its justices less political (but did that era ever really exist?). But when the Congress doesn’t do it’s job … well, you are screwed.

And this mindless crap about Roberts being “fair” and a “surprise” and “for an independent judiciary”? Oh, the naivety. Roberts basically ruined your democracy, America, by ushering in the era of Citizens United and limitless dark money in politics, then he struck down the voting rights act and opened the gates wide open for voter suppression and gerrymandering as viable political strategies for power. Get real. Read your history. Start here: How Chief Justice John Roberts orchestrated the Citizens United decision. And to understand how the Trump legal team completed played the system, start here: Why the Mueller investigation failed

If the Roberts era of the Supreme Court is going to be remembered for anything, it should be for the deliberate and careless erosion of the democratic norms and civic protections democracy is built on, at the behest of one political party whose strategy was to disenfranchise its people.

Democracy seems in bad shape these days. In contrast, its global political rivals appear to be prospering. But why are authoritarians indeed gaining ground? And, what precisely is different this time? Not by repudiating democracy but by simulating it. That’s my premise, at least. John Keane has a new book out on the very topic and I had an opportunity to Zoom chat with him about it. Too much to discuss now (it’s 12:45am where I am) but more in an essay-to-come. I’ll leave you with one quote from John and some closing words:

It’s really a “new despotism” and we see the momentum in China, Hungary, Iran, Russia, Saudi Arabia, Singapore, the UAE, and many other countries – offering evidence both for its viability today and its longevity in times to come. A novel political formation, the new despotism impersonates democracy as it feeds leech-like on its shortcomings. Perhaps most ominously, it threatens to make inroads even in long-standing democracies, where the political decay celebrated by Putin and others represents more than a debased, self-congratulatory fantasy.

And in America, your institutions are simply built for it. Read your “Federalist Papers”. It’s what Madison always feared. He has long sections on “impetuous mobs as factions”.

I actually wrote about “Federalist Papers” last summer when I spent the summer re-reading the whole set. One of Madison’s statements jumped out at me and really sums it up:

how do we guard against factions in government, united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. Factions arise when public opinion forms and spreads quickly and can only dissolve if the public is given time and space to consider long-term interests rather than short-term gratification.

But even Madison did not figure on all of the branches of the government forming as one mob, enabling each other as they wished. As I wrote in a very long piece last year, both Sarah and Andrea predicted that the Mueller Report would be a dud. As Sarah pointed out in her Twitter feed and blog and a stream of articles: there was a fundamental mismatch. She parsed the many bits and pieces slowly coming out over the 2 years of investigation, read the detailed indictments and realized Trump was cutting every corner, trampling on every ethical guideline, while Mueller and those like him were primly weighing up the legal niceties and nuances. They were thumbing through the rulebook of the monastery while in front of them a mafia don set the monastery on fire.

And American business? Oh, complicit as hell with these new despots. The consulting firm McKinsey, for example, accrues lavish profits by supporting state-guided and operated enterprises in China, Saudi Arabia, and Russia. Other large U.S. and Western European companies provide the high-tech instruments of repression and surveillance on which the new despots depend. Capitalist democracy’s entanglements with the new system take direct material forms, as well as more indirect ones.

Oh, it goes on and on. The growing role of dark money in political affairs, unchecked corporate power, burgeoning economic inequality, militarization of police and domestic security: these and many other trends within every contemporary “democracy” feed the cynicism about democracy that all new despots successfully peddle to their followers as hard-headed realism. They and their allies can easily spotlight democracy’s real failings. Why shouldn’t Trump?

I’ll leave it there.