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SCOTUS’s Tax Return Moment Has Arrived: Trump Asks High Court to Keep Finances Secret


Late Thursday, President Donald Trump’s attorneys filed a petition with the Supreme Court asking the conservative majority to squash an effort to obtain his tax returns by Manhattan’s District Attorney Cyrus Vance. The Vance subpoena is premised on a criminal investigation into Trump and his family business, the Trump Organization.

Here’s the question presented in the Trump petition:

The District Attorney for the County of New York is conducting a criminal investigation that, by his own admission, targets the President of the United States for possible indictment and prosecution during his term in office. As part of that investigation, he served a grand-jury subpoena on a custodian of the President’s personal records, demanding production of nearly ten years’ worth of the President’s financial papers and his tax returns. That subpoena is the combination—almost a word-for-word copy—of two subpoenas issued by committees of Congress for these same papers. The Second Circuit rejected the President’s claim of immunity and ordered compliance with the subpoena.

The question presented is: Whether this subpoena violates Article II and the Supremacy Clause of the United States Constitution.

But wait, there’s more.

Lawyers for President Trump also plan to file an emergency petition with the Supreme Court on Friday in a bid to keep the 45th president’s tax returns and other financial documents out of the hands of the U.S. House of Representatives. One or more members of Trump’s legal team confirmed the move to reporters with Bloomberg News and Reuters late Thursday afternoon.

The House Committee on Oversight and Reform issued a subpoena to Trump’s accounting firm Mazars USA, LLP in April. The subpoena, issued by late representative Elijah Cummings (D-Md.), requested a bevy of financial documents related to Trump’s personal and business dealings before and during his presidency. The White House quickly called foul as the clocked ticked down on the firm’s time to comply.

Trump filed suit the next month alleging the congressional investigation into his personal and business finances serves no legitimate legislative purpose–effectively blocking Mazars from complying with the subpoena’s demand for those documents.

Months of legal wrangling ensued; Trump lost each round.

On October 11, the U.S. Court of Appeals for the District of Columbia issued a blistering 2-1 decision ordering Mazars to comply with the duly-issued congressional subpoena.

“Having considered the weighty interests at stake in this case, we conclude that the subpoena issued by the Committee to Mazars is valid and enforceable,” the three-judge panel concluded over controversial dissent by Trump’s recently appointed Judge Neomi Rao. “We affirm the district court’s judgment in favor of the Oversight Committee and against the Trump Plaintiffs.”

That October decision repeatedly evoked the specter and precedent of Richard Nixon and the Watergate scandal.

“In order to explain the impetus behind the subpoena, we must go back to the Ethics in Government Act of 1978,” the order noted. “Enacted in the wake of the Watergate scandal, that statute requires many aspiring and current government officials, including presidential candidates and sitting Presidents, to file financial disclosure reports at various times during their candidacies and incumbencies.”

A series of events culminating in the Michael Cohen hush money scandal initially tipped congressional investigators off to what appeared to be inconsistencies in Trump’s federal financial disclosure forms. Democrats uncharacteristically sensed an opening and requested Trump’s tax returns based on Cohen’s congressional testimony viz. the president’s allegedly unlawful accounting tricks.

“Presidents, too, have often been the subjects of Congress’s legislative investigations, though fewer of these have required judicial intervention,” the court noted in service of their point that such lengthy standoffs between the executive and legislative branches are fairly unusual. “Historical examples stretch far back in time and broadly across subject matters.”

But the Nixonian allusions alone simply didn’t suffice. The judges went a bit further back in history to prove their point about cooperation.

In 1832, Andrew Jackson and Congress came to an agreement over fraudulent rationing contracts. In 1945, Franklin D. Roosevelt and Congress eventually settled on the terms of an investigation into whether the president “tricked, provoked, incited, cajoled, or coerced Japan into attacking” the United States. In 1987, Ronald Reagan gave in to congressional investigators and provided them with “relevant excerpts of his personal diaries” as part of the Iran-Contra Affair. And in 1995, Bill Clinton came to “a last-minute compromise” with the Senate to keep the courts out of a dispute over attorney’s notes.

Then it was back to the Quaker and son of a grocer.

“Of all the historical examples, perhaps the most high-profile congressional investigation into a President—and the only one we have found that produced an appellate-level judicial opinion—was Congress’s investigation into President Nixon,” the court noted. “The Senate created the Senate Select Committee on Presidential Campaign Activities, better known as the Senate Watergate Committee, to investigate ‘illegal, improper, or unethical activities engaged in by any persons’ involved in a campaign ‘conducted by… any person seeking nomination or election… for the office of the President of the United States’…”

And though Nixon ultimately won that case on entirely separate grounds, the D.C. Court of Appeals found that congressional subpoenas based on genuine public interest–and especially the need of Congress to legislate–are valid and enforceable.

The October ruling found that such attempts to legislate was exactly what’s happening with the request for Trump’s tax returns.

“In fact, the House has even put its legislation where its mouth is: it has passed one bill pertaining to the information sought in the subpoenas and is considering several others,” the court noted. “The Committee’s interest in alleged misconduct, therefore, is in direct furtherance of its legislative purpose.”

Trump and his attorneys quickly moved for a rehearing of the tax return subpoena case before the court’s full slate of judges.

On November 13, the D.C. Court of Appeals denied the bid–setting up Friday’s planned emergency petition with the nation’s high court.

There’s also a third threat to Trump’s tax returns. Read about that effort in detail here.

Trump’s statements on releasing his tax returns have varied over the years. He’s said he would “absolutely” do so, “probably” do so, said it’s “complicated,” and said he wouldn’t because they are under audit.

[image via via Chip Somodevilla/Getty Images]

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