On Monday, the Supreme Court took the drastic step of postponing upcoming oral arguments for an indefinite period of time in response to the coronavirus pandemic. In its press release on the decision, the court noted that arguments in 1918 were postponed due to the flu pandemic and the argument calendar was shortened in 1793 and 1798 due to yellow fever outbreaks.
Even if the once-in-a-century postponement is not unprecedented, these particular circumstances may be. Three of the cases that have been postponed in the March 23–25 and March 30–April 1 sessions revolved around extraordinary assertions of executive power by the Trump administration to keep third-party records of the president’s finances from congressional and local investigators.
Nobody knows how long such extraordinary measures might be necessary to protect the public from COVID-19, but President Donald Trump said on Monday that experts had advised him that they might be necessary through “July, August.” If the cases that have been bumped get moved into the fall calendar and Trump loses the November election, these cases could then easily be moot.
Ultimately, the court’s coronavirus response may actually end up shielding Trump’s records entirely from the public. Here’s how that might go from case to case.
All three cases in question were scheduled for March 31, but the first two—Trump v. Mazars and Trump v. Deutsche Bank—are a pair of consolidated cases surrounding congressional subpoenas for Trump’s financial records from outside firms.
In the first case, Trump v. Mazars, a 2–1 panel of the D.C. Circuit Court ruled that the House Oversight Committee was within its rights to subpoena several years of financial records from Trump’s former accounting firm Mazars USA, which has said it would comply with the subpoena if it is approved by the courts. The Supreme Court has repeatedly ruled that if a standing House committee has a legitimate legislative purpose for a subpoena, it must be obeyed. The appellate court found that the reasons given by the committee for the subpoena were indeed legitimate. The committee sought the records in order to determine whether the president has accepted foreign emoluments in violation of the Constitution, filed false records in the past, committed any financial crimes, or has undisclosed conflicts of interest. As Mark Joseph Stern has written, those interests fell into the House’s efforts to craft electoral ethics legislation, such as the House-approved bill H.R. 1. In advancing the bill, the court found, Congress can seek the Mazars information to determine what holes in its legislation might exist. As Judge David Tatel wrote for the circuit majority: “Information revealed by the subpoena could inform the Senate as it considers the bill, as well as any subsequent conference committee or the House itself, should it reconsider the bill post-conference.”
Citing Trump-appointed Judge Neomi Rao’s dissent, Trump and the Department of Justice have argued that crafting election law is not a sufficiently specific reason and that the subpoena is actually an effort to enforce laws that goes beyond the scope of Congress’ powers. The circuit majority dismantled that argument, though, with Tatel noting that Rao’s reasoning effectively “strips Congress of its power to legislate.”
The second case covers similar issues of Congress’ power to subpoena third parties for the president’s financial information in its efforts to legislate. In that case, the House Intelligence and Financial Services committees issued subpoenas for financial records to Trump lender Deutsche Bank in order to uncover possible financial malfeasance by Trump or his lender as part of their ability to write legislation to combat financial crimes. In that case, a panel of the United States Court of Appeals for the 2nd Circuit in New York ruled 2–1 that the subpoenas in question were valid. Trump’s attorneys are again arguing that turning over the records would distract the president from carrying out his official duties and that the records serve no legitimate purpose.
“The Committees’ interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction arising from disclosure of documents reflecting his private financial transactions,” the court found. A judge appointed by George W. Bush dissented, arguing that the “the ability of this and future Presidents to discharge the duties of the Office” would be threatened by third-party firms having to turn over financial information to Congress as part of its legislative function. It should be noted here that the financial information in question was turned over willingly by every previous major-party presidential candidate in modern American history.
While Congress in both cases has convincingly demonstrated to two different circuit courts the need for these subpoenas to carry out legitimate legislative functions, it is unclear what the Supreme Court would have decided if it were able to hear the cases as scheduled in two weeks. Even if the far-right wing of the Supreme Court were to carry Trump’s water for him, it’s less clear that Chief Justice John Roberts would want to join a decision defying years of precedent and removing centuries-old legislative prerogatives from Congress.
However, the postponement of these cases has given the chief a great opportunity to possibly remove them entirely from his docket without ruling on a controversial political question in the heat of an election season. We have no idea when—or how—these arguments might be able to still go forward. If, however, the case is postponed to the fall or later, a decision could conceivably be pushed well into 2021. (It is possible the Supreme Court follows the path of some circuit courts and moves arguments to teleconference—justices will be allowed to participate on a court conference scheduled for Friday by telephone, but doing arguments telephonically would be unprecedented.) When the 116th Congress ends and 117th Congress begins on Jan. 3, 2021, those subpoenas would become invalid and the case would become moot. The subpoenas would then have to be reissued, and the case would have to go through the entire court process again. If Trump is out of office in 2021, Congress may see little reason to relitigate the fight and Trump could successfully escape having to show his taxes to the country.
The third case in question, Trump v. Vance, does not involve Congress, but rather a subpoena of Mazars for eight years of Trump’s financial records by the Manhattan District Attorney’s Office as part of District Attorney Cy Vance’s investigation of potential financial fraud surrounding the Stormy Daniels and Karen McDougal cases. Trump’s former fixer, Michael Cohen, is in prison for falsifying records related to those hush money payments to cover up the two alleged Trump sexual relationships. In New York it can be illegal to file a false business record, and Vance is investigating whether Trump might be implicated in such a crime. Citing Nixon v. United States, the 2nd Circuit panel forcefully and unanimously demolished Trump’s claim that he was absolutely immune from state and local criminal investigations while he was president. The ruling, written by 2nd Circuit Chief Judge Robert Katzmann, found that “while the President may be correct that state courts lack the authority to issue him orders, that provides no basis to enjoin the enforcement of a subpoena issued to a third party simply because the President is implicated in the subject matter of the investigation.”
This seems like perhaps the most straightforward of the three cases, but it too could be mooted by the coronavirus calendar. If these arguments are postponed into the fall and Trump is no longer president in 2021, when a decision might normally come down for the fall calendar, then the issue would also be mooted. Trump is only challenging New York’s ability to investigate him while he is president. If he’s no longer president, the legal challenge is over. At that point, the subpoena would presumably be enforced. But even then it does not mean the public will ever see Trump’s financial records. The information uncovered in the Vance subpoena will be protected by rules surrounding grand jury secrecy, and it will only ever come to light if it is used to prosecute Trump or others.
Trump has spent much of the past five years easily covering up his shady financial history, breaking with decades of precedent that presidential candidates would share their tax records with the public. This trio of cases had serious potential to break open that vault of information and finally reveal to the American people what he has been hiding. Thanks to the coronavirus, though, the public may never get a chance to judge Donald Trump on the basis of those records.