by Neil H. Buchanan
Imagine that the Supreme Court had ruled today that Donald Trump must immediately provide all of his tax returns from the past x years to both the Manhattan District Attorney and to the House Ways and Means Committee. That would have seemed like a big deal, much bigger than the Court's actual rulings (see below), but would it have mattered?
As I worked through the possible outcomes before today's decisions were released, I realized that these were the highest profile cases with the lowest immediate stakes that anyone could imagine. The mismatch is striking.
We take for granted that the Court's decisions affect the parties in a material way and affect other parties substantially (and often immediately). Same-sex marriage is declared a right protected by the Constitution, and thousands of people celebrate and head to the county courthouse. The Court says that Trump's attempt to end the Deferred Action for Childhood Arrivals program was invalid, and hundreds of thousands of people who have only known America as home breathe a sigh of relief. Louisiana's attempt to regulate abortion providers out of existence is deemed an undue burden, and women who choose to terminate their pregnancies in the Pelican State can do so. If the Court had come out the other way in any of those cases, those people would have suffered the consequences.
But what, exactly, was at stake in today's paired cases regarding access to the president's tax returns? There is plenty for ConLaw types to chew over, but what is the on-the-ground effect of one outcome as opposed to any of the alternatives in those two cases -- an effect that most Americans without legal training would think is important?
I will come back to the Manhattan DA case shortly (Trump v. Vance), but let us first think about the House's case (Trump v. Mazars). The early buzz on Mazars is that it was a win for Trump in the sense that it created a time-consuming hurdle, given that the Court laid out a four-part test for the lower court on remand to use in determining whether House subpoenas are valid. This, the TV pundits were saying this morning, allows Trump to keep everything secret until after the 2020 election, and he might never have to turn anything over at all.
That is important, is it not? Perhaps, but it is difficult to see how. In my hypothetical question above, I asked what would have happened if the Court had soundly rebuked Trump and ordered immediate compliance with the subpoena. The answer is that nothing much of substance would actually change. Yes, within days there would be reports of one or another sleazy and probably illegal maneuver being unearthed, but so what? Contrary to, say, someone in the DACA program, Trump's life would be no different no matter how the Court had ruled.
Yes, the day-to-day of the campaign would be different in terms of what the political class would be arguing about, but that is not a substantive difference. Trump would be calling it another hoax no matter what, and no matter how much incriminating stuff could be turned up, it would have virtually no impact on the world, compared to our world in which the returns remain secret.
Would it affect the election? Maybe, but it is actually quite easy to imagine ways in which Democrats should be glad that the Court is allowing Trump to continue to hide the returns and other records. After all, taxes and finance are complicated, and even some non-Trump voters probably think that he is right when he says that cheating on his taxes "makes me smart." Having the tax returns and other records available would have been an irresistibly shiny object, but that would have used up political oxygen that would almost certainly be better consumed in discussing more politically salient issues like Trump's grotesque racism, his failure to respond to the Russian bounties that led to the killing of U.S. troops, or -- in case we were tempted to forget -- his shockingly reckless mishandling of the coronavirus pandemic.
Moreover, that Trump is a tax cheat and a financial fraud with shadowy links to Russia has already been established in the public record. An award-winning 2018 report in The New York Times carefully referred to "suspect tax schemes," but that euphemism is not fooling anyone. Trump bragged that making up numbers is part of "the game" in real estate. Michael Cohen testified to Congress that Trump directed his lawyers and accountants to cheat (undervaluing or overvaluing assets, as needed) with impunity. Mary Trump's new book adds to the record on this score as well.
But in the end, nothing seems to matter when it comes to Trump's taxes or his finances. I have long been a skeptic that there would be much of interest in Trump's returns, and I have told reporters who contacted me that I could not imagine how his returns would "prove" that he is not all that rich or that Vladimir Putin has something on him. Yes, it is suspicious that Trump is so dead set against transparency, but other than extra noise, what would transparency get us?
To be clear, I think that the Court was making things up when it created its new test requiring Congress to show particularized reasons in support of its subpoenas. The House gamely tried to demonstrate that they have a legislative purpose that could justify their request, and they should have won. But everyone knows that the House made the request because Democrats won the 2018 elections, just as everyone knows why the House showed no interest in Trump's taxes or other records when Republicans were in the majority.
I am saying, in other words, that the Democrats' ultimate motive was probably as nakedly partisan as was Republicans' motives throughout this tiff (a rare case of actual equivalence between the parties), but it should not matter. Congress should be able, as part of its oversight duties, to request documents, even if there is no immediately obvious legislation in mind. Politics is still not beanbag.
Long-time readers know that I am no fan of Times columnist Thomas Friedman, but I accidentally found myself reading one of his columns earlier this week. There, he made an interesting suggestion: "Biden should declare that he will take part in a [2020 presidential] debate only if Trump releases his tax returns for 2016 through 2018." This has the added benefit of making it less likely that there will be debates this year -- and we would all better off if those shams stopped happening -- but the point is that the Democrats are better off making an issue of Trump's refusal to release his tax returns and finances than they would be by making an issue of the returns themselves.
So yes, the Court has now brought into existence a new gauntlet for future Presidents (if there are ever any presidents after Trump) and Congresses (if Congress continues to exist as anything remotely resembling an equal branch of government) to run. A certain group of lawyers will figure out how to do so. Substantive outcomes might change, and certainly strategies will be adjusted. For now, however, this is a big ho-hum, because Trump's partial win in Mazars simply should not matter to anyone.
Is Vance different? The early consensus of the TV lawyers and pundits was that this was a big loss for Trump, because the Court said that a president has no greater protection from abusive process by grand juries than does any other citizen. The Manhattan DA's office can thus go back to court to demand Trump's tax returns and other records, and Trump will almost surely lose. Even if that happened with lightning speed, however, and Mr. Vance (even more impressively) were able to articulate a criminal complaint against Trump before Election Day, what then?
The political impact would be no different than I described above. Trump would say that it was a witch hunt, Vance would say that he followed the evidence and the law, and it is difficult to see how anyone's mind would be changed. "Oh, I was going to stick with Trump, but now that a Democratic prosecutor in New York City has said that there is a criminal case against him, I'm a Biden guy." I do understand that there are marginal impacts and cumulative weight of news events, but nothing seems to be immediately at stake here, any more than it was with the House subpoenas. Trump cannot be tried while in office, so it is all hypothetical at this point.
To be sure, this Court decision at least has a clear winner and loser in the future, when (and if) Trump ever leaves office. Facing a state attorney with incriminating evidence is worse then facing one from whom crimes can be hidden. (As the kids say: "No duh!") This is, then, much more like a typical case, because it is clear what each side has at stake -- unlike the House subpoenas, where the very fact of everything being nakedly political means that it is all ambiguous and subject to spin and context.
Even though Trump lost something important in that case, however, why should we care today? This seems to be an instance in which the media decided that these cases were interesting and important because they involve Trump, but no one stopped and said, "Will anything that we care about in 2020 change, depending on how the Court rules?"
I am not as much of a court watcher as many other law professors are, but I certainly understand the joy of anticipating outcomes and analyzing the results -- especially now that there are no athletic events to spectate. It turns out, however, that even high-profile cases might not actually matter very much at the moment. This is one of those times.