US Supreme Court readies for Trump

As the Supreme Court of the United States convened the first Monday of this month, there was talk of big cases involving abortion, guns, gay rights, immigration, perhaps even affirmative action.

Another issue may trump all of them; it's a terrible pun, but multiple cases affecting Donald TrumpDonald TrumpEx-Trump lawyer Cohen to pen forward for impeachment book Murkowski says it would be 'appropriate' to bar Trump from holding office again Man known as 'QAnon Shaman' asks Trump for pardon after storming Capitol MORE's unprecedented claims of personal and presidential prerogatives may affect this court and American politics for years to come.

Two justices, in particular, would feel the heat: Chief Justice John Roberts, often the swing man as the court moves to the right, and Associate Justice Brett KavanaughBrett Michael KavanaughMurkowski says she is not considering joining Democratic caucus Murkowski becomes first GOP senator to call on Trump to resign 50-50 Senate opens the door to solutions outlasting Trump's moment of violence MORE, barely confirmed last year after charges of sexual misconduct, and depicted by critics as a Trump lackey.


The cases that could reach the court include: the House of Representatives and — separately — New York prosecutors seeking financial and tax records from his accountant; the House Ways and Means committee getting his tax returns from the Internal Revenue Service; and the House trying to enforce subpoenas for testimony and information that are central to the impeachment inquiry.

More than Richard Nixon or any other President, Trump is stonewalling at every step.

The first case reaching the Supreme Court may be whether his accounting firm must turn over his financial records to Congress and the Manhattan prosecutor. Trump is vehemently resisting. A federal appeals court has already ruled against the president on the House request.

The New York investigation was triggered by charges from the president's former personal attorney, Michael CohenMichael Dean CohenEx-Trump lawyer Cohen to pen forward for impeachment book Trump tells aides not to pay Giuliani's legal fees: report Trump in new legal jeopardy after Capitol riots MORE, that Trump paid off a former mistress to buy her silence during the 2016 campaign.

In response, Trump's lawyers have made a sweeping claim that a sitting president — any sitting president — cannot so much as be investigated while in office.

In fact, Trump's lawyer told the astonished panel that even if Trump followed through on one of his more famous bragging points and in fact shot someone “in the middle of 5th Ave.,” he couldn't even be investigated — as long as he was president.


Previously, a Justice Department opinion said that an incumbent president cannot be indicted — though that's never been legally tested.

But the notion that a president can't even be investigated is stunning. Under that theory, there would have been no Watergate investigation. That flies in the face of earlier decisions. In 1997, the Supreme court ruled unanimously that Bill ClintonWilliam (Bill) Jefferson ClintonBiden's chief aide says president wants teams, no rivals Upton becomes first member of Congress to vote to impeach two presidents Arizona's GOP governor to attend Biden inauguration MORE could not delay a civil suit against him until he was out of office.

In this Trump case, a federal judge had pointedly rejected Trump’s claim as “repugnant” — and that case is on appeal now.

If the court of appeals in New York upholds that ruling the president likely will appeal both decisions to the U.S. Supreme Court. One way out for the High Court is to refuse to hear the appeals. That will infuriate the right wing.

Another case involves the request by House Ways and Means Committee chairman Rep. Richard NealRichard Edmund NealOn The Money: Twenty states raise minimum wage at start of new year | Trade group condemns GOP push to overturn Biden victory | Top Democrat: Georgia runoffs will influence push for ,000 checks Top Democrat: Outcome of Georgia runoffs will influence push for ,000 checks Insurers lose multiyear lobbying fight over surprise medical bills MORE (D-Mass.) for the Internal Revenue Service to give him Trump's tax returns. This committee has oversight responsibilities over the IRS and, as Neal notes, this has been exercised, under both Republican and Democratic chairs and has never been denied.

The IRS automatically audits the tax returns of the president and vice president — and has since the 1970s. Congress has every right to see this is being done properly.

Trump promised he'd release his tax returns, and then repeatedly refused. What he's trying to hide may be pertinent to any number of matters.

The law is very clear: The IRS “shall furnish” any returns that the committee chair requests.

Finally, there are a plethora if demands for testimony and documents leading to the impeachment inquiry. The Trump White House has refused to comply and ordered others to do likewise.

Again, Trump has a weak case.

In 1974, Richard Nixon refused to comply with requests for his White House tapes during the impeachment process. The Supreme Court, with a majority of Republican-appointed judges, unanimously ruled against the president.

Earlier decisions left no doubt that Congress has the authority to compel witnesses to testify and produce documents if the probe is authorized by Congress, if it involves a “valid legislative purpose” (though it doesn't have to involve specific legislation), and the subpoena is relevant to the inquiry.


These conditions are a slam dunk as soon as the House officially sanctions an impeachment process; the only question is when, not whether.

There may be a race between court tests and impeachment. But on matters of such gravitas, the legal tests can move swiftly. When Nixon tried to block the New York Times and other papers from publishing the Pentagon papers, a classified account of the Vietnam War, the court ruled against the administration in less than two and half weeks. The White House tapes case, in 1974, was argued on July 9 and the decision was handed down July 24.

If these cases reach the Supreme Court in the next few months, Chief Justice Roberts, sometimes seen as the swing vote now that the court has moved to the right, will be on the spot. He's both an institutionalist and a politically astute conservative aware of the uproar that a politically directed decision will cause.

Justice Kavanaugh may be under more scrutiny. His public standing has never recovered from his inflammatory confirmation. He may welcome an opportunity to break with Trump on a high stakes case.

Albert R. Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter-century he wrote a column on politics for The Wall Street Journal, then the International New York Times and Bloomberg View. Follow him on Twitter @alhuntdc.