High Court Orders New Briefs in Trump Financial Record Case (3)

The U.S. Supreme Court asked for additional briefs in an upcoming clash over President Donald Trump’s financial records, telling the lawyers to address whether courts have power to consider the lawsuits he filed to challenge House subpoenas.

The justices are set to hear arguments by phone May 12 on subpoenas issued by three House committees to Trump’s banks and accountants, along with a separate case over a New York grand jury subpoena for the records.

Should the justices say the courts lack power to hear Trump’s suits over the House subpoenas, the ruling could lead to his tax returns becoming public before the November election. The banks and the accounting firm aren’t contesting the subpoenas and have said they will comply with their legal obligations.

“It’s another way that Trump can lose,” said Jonathan Adler, who teaches constitutional law at Case Western Reserve University School of Law.

Together, the cases raise sweeping questions about investigations into alleged misconduct by the president. Trump is seeking to sharply limit Congress’s powers and give presidents immunity from state criminal probes while in office.

The subpoenas seek years of Trump’s personal records, as well as those of the Trump Organization and his other businesses. They are directed to Trump’s accounting firm, Mazars USA, and his banks, Deutsche Bank AG and Capital One Financial Corp.

Tax Returns

The high court’s two-sentence order Monday asked the sides in the House dispute to address “whether the political question doctrine or related justiciability principles bear on the court’s adjudication of these cases.”

The so-called political question doctrine is a legal principle courts sometimes apply to stay out of matters that the Constitution entrusts to other branches of the government.

The House didn’t press the political question argument when it filed its brief with the Supreme Court in February. If the court were to toss out the case on those grounds, its ruling could undercut Congress’ ability to go to court to enforce its subpoenas against the executive branch in other contexts.

The political question argument “is just kind of silly” in the context of the Trump subpoena case, said Leah Litman, who teaches constitutional law at the University of Michigan Law School. “It’s a question about whether Congress has authority to issue a subpoena to a third party. The court answers questions about the scope of Congress’s powers all the time.”

It’s not clear in the House dispute whether Trump’s tax returns would have to be turned over along with other financial information. The subpoena to Mazars doesn’t explicitly ask for the returns, while Deutsche Bank has said it doesn’t have them. Trump has refused to release his returns to the public, unlike every president since Jimmy Carter.

Hush Payments

Trump, represented by his private lawyers, contends that lawmakers are improperly trying to engage in law enforcement, something he says is the exclusive domain of the government’s executive branch.

Three House committees -- Oversight, Financial Services and Intelligence -- say they are pursuing legislative goals, including updating ethics laws and trying to guard against foreign influence in the 2020 election.

In the New York case, Manhattan District Attorney Cyrus Vance Jr. is explicitly asking for Trump’s tax returns, along with other financial records. Vance’s investigation stems from hush payments to two women who claimed they had sex with him before he took office.

Trump, who once said he could shoot someone on Fifth Avenue without losing political support, is now asking the court to say the president can’t be investigated for such a crime, or any other, while in office.

The congressional cases are Trump v. Mazars, 19-715, and Trump v. Deutsche Bank, 19-760. The New York case is Trump v. Vance, 19-635.

(Updates with comments from law professors starting in fourth paragraph)

--With assistance from Kimberly Robinson and Aysha Bagchi.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

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