Sunday, March 08, 2020


Oh, David Frum, you sweet, innocent country mouse:
Trump Is Counting on the Supreme Court to Save Him

The president’s remarkable lawsuit against his own accountants and bankers can succeed only if the conservative majority intervenes on his behalf.

Sometime before June 29, 2020, the U.S. Supreme Court will either plunge the United States into the severest constitutional crisis of the Trump years—or save Americans from that crisis.

Three different committees of Congress, as well as New York State prosecutors, have issued subpoenas to President Donald Trump’s accountants and bankers for his tax and business records. Trump has sued to stop the accountants and bankers from complying. He has lost twice at the district-court level and twice at the appeals-court level. Now he is looking to the conservative majority on the Supreme Court to rescue him.
Frum seems to find the prospect of a Supreme Court rescue for Trump astonishing and almost unimaginable. This would be a remarkable break with precedent! Frum tells us.
Although Trump is suing his accountants and his bankers as a private citizen, his case has been joined by the Department of Justice. Solicitor General Noel Francisco has signed an amicus brief on behalf of the United States. It is an astonishing document. It invites the Supreme Court to junk two centuries of precedent—and to substitute an entirely new system of judicial review of congressional subpoenas that involve a president.
A legislative subpoena must therefore satisfy heightened requirements when it seeks information from the President. At the threshold, the full chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legislative purpose. A congressional committee cannot evade these heightened requirements merely by directing the subpoena to third-party custodians, for such agents generally assume the rights and privileges of their principal, as this Court has recognized in analogous cases.
All the requirements in that above paragraph were devised for purposes of this litigation. None of them has ever been enforced—none of them has ever been imagined—in the previous 230 years of skirmishing between Congresses and presidents. Every must and should and cannot was invented in this very brief, for the immediate legal purposes of this president in this dilemma.
Yes, and? Solicitor General Noel Francisco is a Federalist Society lawyer writing for the Federalist Society majority on the Court. His brief serves the same purpose for the Court's Republicans that a Trump ally's appearance on Fox News serves for Trump: It's meant to tell the Court's justices what to write the way the Fox appearance is meant to tell the president what to say. The brief is giving the Court's GOP members concepts to include in their inevitable ruling in Trump's favor.

Frum writes:
We now seem on track to one of three possible outcomes of this dispute.

The first is that precedent and law prevail. Trump loses his lawsuit against his accountants and bankers, and the subpoenaed documents are surrendered to Congress.

The second is that the political imperative to save Trump ... will sway the conservative justices on the Supreme Court—and that Trump’s secrets will be protected by a 5–4 decision.

The third is that Trump loses—but continues to devise new delays to thwart the subpoenas and defy not only Congress but also the courts.

Every one of these possible outcomes leads to explosive controversy in the summer before the 2020 election.
It would be lovely if #2 -- the inevitable outcome -- were to result in "explosive controversy," but it won't. It preserves the status quo, so most Americans will barely notice it. Sure, Rachel Maddow will devote a 25-minute A-block to the ruling, and people who already detest Trump and the Court's Republicans will detest them that much more, but it won't matter to most people. It won't even displace the election (or probably the coronavirus) as America's top story for even an entire news cycle.

I've predicted that the Court will play against type and vote to overturn a Louisiana law intended to restrict abortion in the state. That's because abortion is a big issue for many Americans. Roberts, I believe, won't want to anger and motivate pro-choice voters, including all those suburban women who turned out for the Democrats in 2018.

By contrast, a pro-Trump ruling in this case will anger only diehard Trump critics, while a ruling against Trump might lead to the release of documents that could help put a Democrat in the White House. John Roberts won't risk that. He'll be the fifth vote to toss out all precedent.

No comments: