Two Supreme Court rulings this week in cases about President TrumpDonald TrumpOvernight Defense & National Security — Presented by Boeing — Milley warns of 'Sputnik moment' for China WSJ publishes letter from Trump continuing to allege voter fraud in PA Oath Keeper who was at Capitol on Jan. 6 runs for New Jersey State Assembly MORE’s financial records add new obstacles to the public seeing Trump’s tax returns before Election Day.
The odds of Trump’s tax returns becoming public this year were low even before the Supreme Court’s decisions on Thursday, and there was no guarantee the documents would be released ahead of November even if Democrats had scored a resounding victory in the high court.
But the pair of rulings, which send the cases back to lower courts, give Trump new opportunities to run out the clock.
“It would take a miracle at this point for them to become public before the election,” said Philip Hackney, a law professor at the University of Pittsburgh.
The Supreme Court issued two opinions on Thursday in disputes between the president and Democrats over subpoenas for his financial information. One of the rulings is generally thought to be less favorable to Trump than the other, but in both instances the 7-2 rulings don’t bring a final resolution to either of the cases.
In one of the rulings, the justices upheld the Manhattan district attorney’s office’s ability to subpoena Trump’s tax returns and financial records from the president’s accounting firm, rejecting Trump’s argument that prosecutors’ subpoena needed to be blocked because sitting presidents are broadly immune from the criminal process. But the court also suggested there are other arguments Trump could raise in an effort to challenge the subpoena, sending the matter back to lower courts.
The federal district court judge handling the case ordered the parties in the case on Friday to inform him by Wednesday about whether any further proceedings will be necessary.
The other ruling said Congress could not immediately get access to financial records of the president that were subpoenaed by the Democratic-led House Oversight and Reform, Financial Services and Intelligence committees. The justices said lower courts did not sufficiently consider separation-of-powers concerns implicated by the subpoenas, which the committees issued to Trump’s banks and accounting firm, and sent the matter back to lower courts for further review.
Legal experts said that because the cases were sent back to the lower courts for additional proceedings, they are highly unlikely to be resolved by the election.
“The court system moves at a pace that lets everyone argue everything they want to argue. And that takes time,” said Harry Sandick, a former federal prosecutor in New York who is now a partner at the firm Patterson Belknap.
Sandick said it’s possible that the case involving the congressional subpoenas could end up being heard by the Supreme Court a second time. The majority opinion lays out several factors that courts should consider when evaluating congressional subpoenas of presidents’ information, and the justices may want to take a look at how lower courts applied this test, he said.
Even if these cases are wrapped up before November, and prosecutors and congressional committees receive the information sought by their subpoenas, the chances that Trump’s tax returns would be disclosed to the public before the election would be uncertain at best.
The congressional subpoenas were issued to two banks — Deutsche Bank and Capital One — and the accounting firm Mazars USA. The banks have indicated in court filings that they don’t have any Trump tax returns that are responsive to the subpoenas. The congressional subpoena to Mazars does not explicitly seek Trump’s tax returns, so it’s unclear whether the accounting firm would provide them as part of a response to that subpoena.
The Manhattan district attorney’s office, led by Cyrus Vance Jr., a Democrat, specifically asked for Trump’s tax returns in its subpoena to Mazars. But the materials requested by the DA’s office are subject to grand jury secrecy rules, so they wouldn’t become public unless charges were filed and they were used as evidence in a criminal case.
“Grand jury secrecy is fairly absolute,” said Kyron Huigens, a professor at the Benjamin N. Cardozo School of Law.
The lawsuit from House Democrats that’s most directly aimed at obtaining Trump’s tax returns is not as far along in the legal process as the cases heard by the Supreme Court. It’s also unlikely to be resolved by the election.
The House Ways and Means Committee filed a lawsuit last year in an effort to get the courts to direct the Treasury Department and IRS to comply with requests and subpoenas for Trump’s federal tax returns. Earlier this year, Judge Trevor McFadden, a judge in federal district court in Washington, D.C., and a Trump appointee, paused the case while a separate case about House Democrats’ subpoena of former White House counsel Don McGahn makes its way through the courts.
Some legal observers have said the D.C. Circuit may have been waiting for this week’s Supreme Court rulings before issuing a decision in the McGahn case. If they’re right, a decision could be handed down in the near future.
In both the McGahn and Ways and Means cases, the Trump administration is arguing that Congress doesn’t have standing to sue.
Trump is the first major party presidential nominee in decades who has refused to make his tax returns public. He has said he won’t release his returns while under audit, but the IRS has said audits don’t preclude people from releasing their own tax information.
Legal experts cautioned that the Supreme Court’s decisions on Thursday are not a resounding success for Trump just because he’s unlikely to have his tax returns made public before the election, noting that the court rejected a number of Trump’s legal arguments.
But in the near term, it’s a political victory for Trump, who is in a better position to delay any release of his financial information.
Steve Rosenthal, a senior fellow at the Urban-Brookings Tax Policy Center, said he thinks Democrats will eventually receive the information they’re seeking, but that Trump is effective at delaying.
“Time is the biggest obstacle,” Rosenthal said.