What’s at stake in Supreme Court’s hearing on Trump’s financial records?

Limits of presidential immunity are in question

Andrew Naughtie
Tuesday 12 May 2020 12:58
Donald Trump 'will never release tax returns' claims White House official Mick Mulvaney

Donald Trump has been under pressure to release his financial records since long before he took office. During the 2016 election he steadfastly refused to release his tax returns, claiming he was under audit from the IRS. The returns remain unreleased.

Investigations into Mr Trump’s financial affairs have only proliferated since his inauguration, and particularly since Democrats took back control of the House of Representatives at the end of 2018. And today, several of the most intensive inquiries will reach a climax as the Supreme Court hears arguments over several subpoenas to obtain Mr Trump’s records from third parties.

Given precautions to avoid the spread of coronavirus, the cases will be held via video conference call and publicly live-streamed.

The court's final decisions could decide the extent to which a president can be investigated for potential criminal activity – if at all.

What are the cases before the court?

The Supreme Court is hearing oral arguments in three cases. Two of them concern attempts by committees of the House of Representatives to enforce subpoenas seeking Mr Trump’s financial records from three businesses: Mr Trump’s longtime accounting firm Mazars LLP and two banks, Deutsche Bank and Capital One.

The Mazars subpoena was issued by the House Oversight Committee, which is investigating alleged inflation and deflation of certain assets on Mr Trump’s financial records. The other subpoenas targeting the banks, meanwhile, were issued by the the House Financial Services Committee, which is investigating possible money laundering.

The court has consolidated these cases, and will hear them together in a scheduled one-hour argument.

The other case concerns another subpoena to Mazars LLP for similar information, including tax returns – this one issued as part of a grand jury criminal investigation into Mr Trump being carried out in New York City.

The investigation into Mr Trump and the Trump Organisation by Manhattan district attorney Cyrus Vance was spurred by disclosures of hush payments made to two women who said they had had past sexual relationships with the president: pornographic film actress Stormy Daniels and former Playboy model Karen McDougal. Mr Trump and his aides have denied the relationships.

In all the cases, lower courts in Washington and New York ruled against Mr Trump. The Supreme Court’s rulings are due by the end of June.

What is Mr Trump’s defence?

In the congressional case, the Mr Trump team has argued that Congress has no authority to issue the subpoenas, that no sitting president has ever had his personal records subpoenaed, that Congress has no valid legislative reason for doing so, and that it has not stated with sufficient detail why it needs the documents.

As for the New York case, Mr Trump’s lawyers argue that because of his authority as president under the constitution, he is immune from any criminal proceeding when in office, and that he therefore cannot be compelled to hand documents over.

Pointing to Justice Department guidance that asserts that a sitting president cannot be indicted or prosecuted, they at one point even argued that law enforcement officials would not have the power to investigate Mr Trump if he shot someone on New York’s Fifth Avenue.

Mr Vance has countered that his investigation is at an early stage, and that there is a risk that documents would be lost if prosecutors cannot access them now.

What are the stakes?

If Mr Trump loses the cases, as he did in the lower courts, he would need to hand over the material that Congress and the New York prosecutors are seeking, and would almost certainly have to do so before the election on 3 November.

A ruling against him would also establish that a president cannot block House subpoenas, at least when it comes to information held by third parties.

But should he win the cases against Congress, it could severely weaken the legislature’s ability to conduct oversight of a president – and strengthen the case that a sitting president cannot be investigated on criminal matters.

Additional reporting by Reuters

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