Trump won the tax return fight
Don't be fooled by the sweeping principles annunciated on Thursday in Trump v. Vance. Yes, the Supreme Court declared that sitting presidents are not immune from state criminal investigation and possible prosecution, and that subpoenas for documents in such investigations can be enforced. Yet the details in that case and Trump v. Mazars, concerning subpoenas of the president's financial records from three congressional committees, hand Donald Trump a solid political win, almost certainly assuring that these records, including the president's tax returns, will not be released to the public prior to the November election.
The story of how the Supreme Court — and especially Chief Justice John Roberts, who authored both 7-2 majority opinions — reached these decisions tells us a lot about how the Roberts Court views its role in our constitutional system. Robert has once again demonstrated that he cares very deeply about precision — with the scope of claims and how they are justified. He wants Ts crossed and Is dotted. And he doesn't appreciate sweeping assertions and hyperbolic rhetoric. But the two decisions also reveal how this Court views the potential threat that Trump poses to American constitutional democracy — which is that he poses no unique peril to the Constitution or political system at all.
In Mazars, Douglas Letter, general counsel for the House, in what one observer describes as "the most inept oral argument I've heard in seven years covering the Court," made very sweeping claims about the scope of congressional subpoena powers. Roberts' opinion smacked those arguments down, claiming they disregarded concerns about separation of powers and insisting that in the future courts apply "a new four-part, nonexhaustive test" for cases in which congressional committees conducting investigations of the executive seek documents and information. The practical result of this outcome — remanding the cases back to lower courts for additional argument and evaluation using this test — is that Congress will not see Trump's financial documents for quite a long time to come, if ever.
In Vance, it was Trump's personal lawyer Jay Sekulow who ran afoul of Roberts' procedural and temperamental conservatism, asserting that presidents enjoy a sweeping "temporary presidential immunity" that shields them from both investigation and prosecution for crimes. It was against this claim that Roberts marshaled ringing, historically elaborated defenses of limitations on presidential immunity from criminal investigation and prosecution, even by, as in this case, state courts.
This led some court watchers to conclude initially that Vance was a stinging defeat for Trump, whose records would quickly need to be turned over to the Manhattan District Attorney Cyrus Vance for inclusion in his grand jury investigation of alleged financial improprieties on the part of the president. That wouldn't have guaranteed that Trump's tax returns and other documents would be made public prior to the November election, since grand jury records and deliberations are sealed. But it would have made their eventual release much more likely.
But Vance concludes, instead, by following the lead of the Court of Appeals, which returned the case to the District Court, "where the president may raise further arguments as appropriate." So Roberts shot down Trump's sweeping claims to immunity but has no objection to allowing the president to continue to fight against the subpoena on other grounds. (The majority opinion even suggests some possible lines of argument he or another president might deploy in such a fight.) Seeing that process through is bound to take us long past November.
The Roberts court has therefore handed Trump a significant and substantial political victory.
It's also made abundantly clear that there is nothing distinctively dangerous implied in the investigations against the president. This is especially clear from the majority's unwillingness to separate out the Intelligence Committee's investigation in Mazars. The House Oversight Committee and House Financial Services Committee are investigating whether Trump violated campaign finance laws in having his former personal lawyer (Michael Cohen) pay off his mistress, as well as other possible financial misdeeds and emolument-clause violations. Those are all serious, and possibly criminal, acts.
But they pale in comparison to the Intelligence Committee's investigation, which concerns nothing less than whether foreign actors have financial leverage over the president. That raises the possibility of truly monumental, and potentially treasonous, acts on the part of the man residing in the White House and seeking re-election. That the chief justice of the Supreme Court is content to let even this investigation languish in lower courts as the president raises objection after objection to allowing Congress to proceed with its work is a remarkable statement of the court's deference to the presidency, regardless of the character and actions of the man who holds the office.
This doesn't mean that Roberts would defer to a president who did literally anything while serving as president. But it does mean that Roberts and several of his colleagues are content to wash their hands of the potentially very dirty details on the presumption that presidents in general should be given the benefit of just about every doubt.