The Supreme Court on the Trump Subpoenas

December 17, 2019

The Supreme Court decided to hear the Trump Administration’s appeals from lower court orders that tax returns and other documents be provided. What does that mean?

The Court set the case for argument in March. The Court has a lot of control over timing. But generally, decisions are announced when the various opinions are finished.  That can take a long time in controversial cases. So sometime in June is likely.

Four members of the Court can set a case for hearing. Those who vote to take a case don’t have to vote for the side requesting it but, if they are favorably inclined, those four are only one vote short. Statistically, the Court decides in favor of the party requesting review between two-thirds and three-quarters of the time. That suggests Trump’s team probably wins.

But given the importance of the decision, the Court might just feel that it should make the final decision. Trump has belittled and attacked lower court judges. It would be harder for him to attack the Supreme Court.

A Supreme Court decision for the Administration could affect momentum. Deciding for Trump could anger Democrats and bring more to the polls, making Democratic victories more likely in 2020. It could also lead some Trump supporters to relax about the election, also making a Democratic victory more likely.

It will be difficult for the Court to justify deciding for Trump. The cases aren’t in his favor. Other presidents have had to comply with subpoenas. Deciding for Trump will make the Court seem totally political. Some members of the Court’s conservative majority would regret that. They think of themselves as judges, not partisans. Chief Justice Roberts explicitly said the Court is composed of judges, not partisans. Of course, we’ll see.

Legally, what’s already been disclosed makes a very strong case that Trump violated the Constitution, and broke the law, in ways that justify impeachment. As I’ve described, Trump put his personal interests above the national interest. He had previously decided to support and ship arms to Ukraine, stopping only to get a campaign message in his favor from the Ukrainian president. He changed back only when the story of the phone call came out. Everything was about his campaign and nothing about American interests.

Republicans talk about calling the whistle-blower. That would compound the violations of law, and the whistle-blower has nothing relevant to offer. Any decent judge would sustain objections to calling the whistle-blower to testify. All the evidence has now come from others. Not a single fact comes from the whistle-blower, who could only testify about what he or she heard or saw in the transcript. Other people heard the call, and saw the transcript. With the investigation done, the whistle-blower has nothing to offer. Most of what he or she said was hearsay and is inadmissible. Law enforcement uses hearsay as a tip – it checks on that tip by going back to people with direct knowledge and verifying or contradicting what the whistle-blower said. Here, the whistle-blower’s allegations were repeatedly corroborated. The whistle-blower’s relevance ends at that point.

Juries sometimes ignore the law and vote to dismiss what is clearly established. That’s the real relevance of the subpoenas. I doubt Senate Republicans will do their duty on the current record – most have made it clear they don’t care whether Trump is innocent or guilty. But additional disclosures could make it politically as well as legally impossible to ignore the evidence.

— This commentary was broadcast on WAMC Northeast Report, December 17, 2019.


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