Legal scholars said Thursday that two Supreme Court decisions on President Trump’s tax returns - one upholding a New York prosecutor’s demand for the returns as part of a criminal probe, and one blocking Congress from viewing the documents for the time being - will have far-reaching implications on future presidents and lawmakers.
Nikolas Bowie, an assistant Harvard Law professor who specializes in constitutional law, said Thursday’s high court rulings were a blow to Trump’s assertion that he sits above the law as president.
“Today’s decisions correctly rejected the extraordinary arguments made by the president’s lawyers that a president sits above the law and is immune from all investigations,” said Bowie, who also works as an appellate attorney, in an e-mail message.
Manhattan District Attorney Cyrus Vance Jr.‘s office is seeking the tax returns as part of a probe of Trump and the Trump Organization’s alleged roles in hush-money payments made in the run-up to the 2016 election. Trump and his company reimbursed Michael D. Cohen, the president’s former lawyer and fixer, for payments made to the pornographic film actress Stormy Daniels, who said that she had an affair with Trump.
The Supreme Court rejected arguments by Trump’s lawyers and the Justice Department that the president is immune from investigation while he holds office or that a prosecutor must show a greater need than normal to obtain the records. The records are held by Trump’s longtime accounting firm, Mazars USA, which has said it would comply with a court order.
The court sent the case back to a district court for more work. And the information is part of a grand jury investigation. Grand jury proceedings are secret, and the documents would not become public unless they were used in a criminal case.
Also Thursday, the high court blocked Congress from seeing Trump’s financial records for the time being.
In that case, the high court returned the case to lower courts, saying they had not taken “adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information.” The high court called for the lower courts to take a “balanced approach” that considers “both the significant legislative interests of Congress and the unique position of the President.”
Bowie said that decision “introduces new limits on Congress’s power to obtain the information that it needs to legislate effectively on behalf of the American people. For two centuries, Congress has investigated the Executive Branch to ensure that all federal officers, including the president, are faithfully and legally executing the laws.”
Traditionally, Bowie added, “Congress has enforced its investigations using its own subpoenas, arrests, and other procedures subject to the limits of popular opinion,” Bowie wrote. “But today, the Supreme Court authorized federal courts to block future subpoenas using a balancing test that weighs ‘the asserted legislative purpose’ of the subpoenas against amorphous burdens they might impose on the President.”
The court, Bowie wrote “insisted that ‘[w]ithout limits on its subpoena powers, Congress could ‘exert an imperious control’ over the Executive Branch and aggrandize itself at the President’s expense.' The decision therefore threatens to replace the checks Congress traditionally imposes on the president with a judge’s discretionary sense of whether Congress is overstepping. And Congress will get little in exchange for this new limit: it seems unlikely that the American people will see the information Congress requested until after the November election.”
Bowie’s not alone in his forecast.
The high court ruling against Congress is “practically, a good day for candidate Trump, because none of this material will come out before the election,” said Alan M. Dershowitz, a retired Harvard Law professor who argued on Trump’s behalf during the president’s impeachment proceedings, in a brief phone interview.
Dershowitz, referring to the victory the court handed to Vance’s office, said Thursday was “not so good a day for the presidency of the United States, because it means that district attorneys all over the country will be able to investigate sitting presidents.”
His former colleague, Harvard Law professor Laurence Tribe, had a different take on the Vance ruling.
“Profoundly important 7-2 victory in Vance v. Trump: No absolute immunity from state and local grand jury subpoenas for Trump’s financial records to investigate his crimes as a private citizen,” tweeted Tribe, a frequent Trump critic. “Being president doesn’t confer the kind of categorical shield Trump claimed.”
Tribe’s words were echoed by Tomiko Brown-Nagin, a constitutional law professor at Harvard Law who also serves as dean of the Radcliffe Institute for Advanced Study.
“I’m pleased but not surprised by the Court’s decision in Trump v. Vance,” Brown-Nagin said in an e-mail. “The majority vindicated the critically important principle in American constitutional law that the President, like everyone else, is subject to the rule of law. Had the Court gone the other way, it would have been shocking; after all, limits on government, especially executive power, are said to fundamentally distinguish the United States from undemocratic, disorderly, and often brutal totalitarian regimes.”
After the rulings came down, a number of legal experts focused on the high court’s decision to block Congress, at least temporarily, from obtaining the tax records, including Maya Wiley, former counsel to New York City Mayor Bill DeBlasio who teaches at the New School.
“Upshot - #Trump can be criminally investigated in the dark,” Wiley tweeted. “Congress may not get to shine a light on his pre-WhiteHouse financials. Congressional subpoena power takes a hit.”
Elie Honig, a former federal prosecutor who heads the Rutgers Institute for Secure Communities, tweeted that the lawyer who argued the case for Congress before the high court bears some responsibility for that setback.
“The inability of the House’s attorney to articulate some limit on Congressional subpoena power stuck out badly during oral arguments; many noted it,” Honig wrote. “Today that failure came back to burn the House.”
And Barb McQuade, a former US attorney who teaches at the University of Michigan, tweeted that it was “hogwash” to rule against Congress in the tax return dispute.
“While congressional subpoenas ‘may’ be enforceable, courts below did not adequately consider separation of powers concerns,” McQuade tweeted. “Back to the lower court for further consideration. I say hogwash. The subpoena was to a private entity.”
McQuade said that with the high court rulings “simply teeing up further court proceedings, Trump once again uses the courts to delay accountability. He will run the clock past the election. Trump makes a mockery of our court system by counting on it to be too slow to be relevant.”
But Mimi Rocah, a former federal prosecutor who teaches at Pace Law School, tweeted that the ruling is ultimately a net gain for justice.
“Glass half empty/glass half full,” tweeted Rocha, a Democratic candidate for district attorney in Westchester County, N.Y. “I say full. SC says POTUS isn’t above the law. Right now even that principle’s been in doubt. Does Trump get a delay/political victory? But whose mind would tax returns change anyway? We still have long way to go on transparency. [Different] issue.”
The rulings could also have a direct bearing on Trump’s reelection prospects, according to Neama Rahmani, a former federal prosecutor who also served as enforcement director of the Los Angeles City Ethics Commission.
“Trump lost the battle, but he won the war, at least until the November election,” Rahmani said via e-mail. “Grand Jury investigations, including documents they subpoena, are highly secret. A judge can ultimately unseal Grand Jury evidence, but that will not happen until the documents are produced by the President’s accountants and the investigation is concluded, which will take months or longer. The Supreme Court didn’t allow Congress to subpoena the returns either, instead sending the case back to the lower court to consider separation of powers issues. By the time the Congressional case is relitigated in the trial and appeals courts, Trump will be well into his second term or out of office entirely.”
Douglas Brinkley, a prominent presidential historian, told CNN Thursday that Trump had ample reason for concern following the rulings.
“I find this to be a very dark day for Donald Trump,” Brinkley told the television network. “This is his greatest fear. ... Vance has open season on trying to get these documents loose and have a grand jury. Trump has been doing everything and anything to prevent that. We just have to imagine what are in his tax returns, what are in his financial documents.”
Trump, for his part, vociferously defended himself Thursday.
“The Supreme Court sends case back to Lower Court, arguments to continue,” Trump tweeted. “This is all a political prosecution. I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!”
Trump tweeted that the country had “a totally corrupt previous Administration, including a President and Vice President who spied on my campaign, AND GOT CAIGHT...and nothing happens to them. This crime was taking place even before my election, everyone knows it, and yet all are frozen stiff with fear....”
Material from the Associated Press was used in this report. Martin Finucane of the Globe Staff also contributed.