Friday, July 10, 2020



One thing clear about the Supreme Court rulings today on the emperor's financial records is that no decision was going to give us, or the journalists, a chance to look at his financial records any time soon. In the case of Trump v. Vance, his attempt to prevent the Manhattan district attorney from obtaining his tax records by subpoena, which Trump clearly lost, we were never going to see the records; when Vance gets them, which may not be very soon, they'll be in materials submitted to a grand jury in the investigation of Trump's campaign violations when he was suppressing the stories of Stormy Daniels and Karen McDougal (in the case for which Michael Cohen has been jailed and Trump is an official unidicted conspirator), and whatever the grand jury gets will be subject to grand jury secrecy. On Trump v. Mazars (where the Court's ruling also applied to Trump v. Deutsche Bank), the deal Ian Milhiser hypothesizes was probably inevitable (more inevitable than Milhiser thinks it was):

that the Court’s liberals simply lacked the votes to order the House subpoenas enforced, so they decided that it was better to cast their lot with Roberts than to risk having their conservative colleagues unite behind a rule that was even more favorable to Trump.

Roberts bothsided his arguments for all they were worth, like a kind of judicial David Brooks, fiercely denouncing the theory that the president is completely immune from investigation but insisting that the House of Representatives overstated its own case:
The approach proposed by the House, which relies on precedents that did not involve the President’s papers, fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. The House’s approach would leave essentially no limits on the congressional power to subpoena the President’s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense. These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved. 
The begged question here being what exactly made these records of such intense political interest? The tax filings of presidents and presidential candidates, from the filthy rich like Mitt Romney to the practically poor like Bill Clinton, have been open to the public for 45 years without noticeable harm to the republic. Trump's records are of interest because Trump wants to hide them, and you know he has a reason for it akin to his reasons for the ten or eleven chargeable counts of obstruction of justice with which Robert Mueller taxed but didn't charge him last year, in a pattern that goes on to the present, with the attempts to drop charges on Michael Flynn and strongarm a reduced sentence for Roger Stone and the purging of inspectors general and so on.

Scott Lemieux has the opinion exactly right:
delivering a theoretical loss and practical win for Donald Trump is about as John Roberts as it gets.
The CJ wanted to say (correctly) that Trump was wrong but make sure there weren't any real-world consequences for doing so, so he sent it back to the appeals court kitchen for recooking, with a note of annoyance at having been dragged into the fray:
Historically, disputes over congressional demands for presidential documents have been resolved by the political branches through negotiation and compromise without involving this Court. The Court recognizes that this dispute is the first of its kind to reach the Court; that such disputes can raise important issues concerning relations between the branches; that similar disputes recur on a regular basis, including in the context of deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve these disputes among themselves without Supreme Court guidance. 
(Another begged question there: it was the Trump administration that refused any and all of the House Judiciary Committee's efforts at "negotiation and compromise"—it wasn't a bothsides matter. Why not recognize who was to blame for the impasse? Why reward the president's obduracy by reversing the DC Circuit Court decision in his favor? It's his and his lawyers' fault there was a case at all, with their crazy insistence that there was no constitutional reason for them to compromise at all. Can't they even be reprimanded?)

But Roberts was able to get Gorsuch and (maybe with some more difficulty) Kavanaugh to sign on to the principle that the president must submit to congressional oversight, and that in itself is a kind of victory that's worth having (I know, just in time for the Biden presidency, but Biden doesn't have anything to hide). That doesn't mean, by the way, that he's an incorruptible "institutionalist", but that he represents something a bit different from the Republican party, with somewhat different interests (which the Republicans and Trump are starting to endanger not so much with their opinions as their incompetence), and they also see what's going on in the electorate and "the Supreme Coort follows th' iliction returns."

The other, more cheerful point I want to make is that it almost certainly wasn't going to be a decisive factor in the election anyway, and it certainly won't now, one way or the other. The election campaign is developing the way it should, with the picture of Trump as an inveterate loser who doesn't have any of the things it takes. We won't need the evidence in his bank records any more than we needed the evidence of his long history of bank and tax fraud and scam operations, or his obstruction of justice with reference to the FBI and Mueller investigations.

As the evidence trail has gone crazier and crazier, we feel disappointed every day:"Why don't people get this one? Why, at long last, don't they see it now?" And they don't, not in sufficient numbers, evidently because there's nothing you can say that will make people think about the legal ambiguities when they're not in the mood. If Trump shot that guy on Fifth Avenue maybe, or if there was a record of him taking a bribe from President Putin (I bet there is, but we won't see it) maybe, because that's not asking for any thought that might ask you to rise out of a preconceived picture, as a number of people on "both sides" might well be willing to do if only it were that simple, but it isn't. 

But at this point all we need to do is look at him, lost and fumbling and irrelevant, unable to grasp anything he has to do, and threatening our lives with his visible incapacity. So he's out regardless of what goes on in the legal cases, and so bad it's really scary, much worse than the same realization when everybody had it about George W. You too have been seeing that for four years, and now everybody is.

I'm starting to think it's OK to see the legal issues separately from the political one. Today's Supreme Court decisions move us ahead (Congress will get access to those tax records sooner or later) on the long-term project of doing something about the constitutional weaknesses that allow these terrible leaders to arise, but they don't interfere with the particular project of getting rid of this one and a busload of his Republican congressional enablers. That's a good thing. They don't need to do both, as long as both happen.

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