Voting 7-2, the high court rejected the president’s contention that he was immune from investigation simply because he lives in the White House. Writing for the court’s majority, Chief Justice John Roberts argued: “We cannot conclude that absolute immunity is necessary or appropriate under article II or the supremacy clause.”
Trump learned the hard way that the US constitution is neither invisibility cloak nor rag. It is also not whatever the president says it is.
As Roberts framed things, “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.” Significantly, under the court’s ruling, the lower court will continue to exercise oversight of the proceedings.
In a separate ruling, issued minutes later and by a 7-2 margin, the court rejected the president’s contention that Congress had no right whatsoever to review his tax returns and financials. Roberts observed: “When Congress seeks information ‘needed for intelligent legislative action’, it ‘unquestionably’ remains ‘the duty of all citizens to cooperate’.”
The House of Representatives had cast a particular eye on Trump’s relationship with Deutsche Bank, his de facto lender of choice and last resort. On the other hand, the court denied Congress instant access to the records.
The majority held that the lower courts had paid insufficient attention to the issue of separation of powers and the potential for encroachment upon the executive branch. In other words, this battle will continue beyond Trump’s tenure unless a Biden administration weighs in. And even then.
The decisions came on the final day of the court’s 2019-20 term, but they could not have arrived at a worse moment for Trump. There are less than four months to the election and once again the president is ensnared in a snare of his own making. A porn star, a Playboy model and alleged hush money are again on stage.
Even before the supreme court announced its rulings, Trump had used Twitter to complain of harassment. After the court went on summer vacation, the president kvetched about its lack of deference. Practically speaking, it is unlikely that Trump’s returns will be shared with the public any time soon.
Separately, Trump’s annual financial disclosure form is on a 45-day extension. It is the sole legally mandated window into the president’s holdings and income.
As for New York’s prosecutors, the operative issues appear to be whether the Trump Organization deducted the payments from reported income, the legality of such a move under state law, and who in Trump’s orbit greenlighted the deduction if taken. Lurking in the foreground is the implicit question: what did Trump know and when did he know it?
The record currently reflects that Michael Cohen, then an officer of the Trump Organization and Trump’s personal lawyer, orchestrated payments to the former adult film star Stormy Daniels and Playboy model Karen McDougal at the behest of his client, Trump. Cohen pleaded guilty to related federal crimes in 2018. At the time, the justice department essentially tagged the chief executive as an unindicted co-conspirator. Government filings expressly tie Trump, AKA “Individual-1”, to Cohen. (As a coda, within hours of the court’s rulings, Cohen was taken back into federal custody for violating the terms of his Covid-19 release from prison.)
From here onward, Kayleigh McEnany, the president’s spokeswoman, will be forced to refer questions about Trump’s taxes to his personal lawyers for answers that will never come. McEnany wants us to believe that her boss is “the most informed person on planet Earth when it comes to the threats that we face”.
Then there is political reality. Despite Trump’s assurances, the US is not “in great shape”. Trump-Pence 2020 looks a lot like the Grim Reaper’s scythe. Support for Trump is withering where Covid-19’s march goes uninterrupted. The president’s base is not blind.
Even the tech baron Peter Thiel, who donated more than $1m to Trump’s 2016 run, likens his re-election effort to a marooned boat skippered by a hapless crew. Loyalty can survive only so much abuse and incompetence.
Vance, the Manhattan district attorney, and the Trumps have some history. Less than a decade ago, Vance declined to indict Ivanka and Donald Jr over their role in the Trump Soho project, an undersold condominium-hotel in lower Manhattan. The optics were messy, to say the least. Vance received a $25,000 contribution – which he returned – from Marc Kasowitz, another Trump lawyer.
This time around, however, the Trumps may not be so lucky. Four decades ago, Vance’s father served as Jimmy Carter’s secretary of state. But in 1980, the elder Vance resigned over a botched effort to rescue 52 Americans held hostage by Iran. Vance père had opposed the operation from its outset and quit over principle. Ultimately, his nexus to the president did not mean all that much.
Against that backdrop, don’t bet on Vance fils being played by Trump a second time. The current president is a wounded politician facing electoral elimination – just like President Carter. There’s no upside to Vance balking at an indictment if he has the goods. The Vances know what roadkill looks like.
An attorney in New York, Lloyd Green was opposition research counsel to George HW Bush’s 1988 campaign and served in the Department of Justice from 1990 to 1992
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