A Letter to My Friends

Dear Friends,

            Last week I was under the impression that the Supreme Court had concluded its current term without ruling on the cases seeking to enforce subpoenas for the President’s tax returns. Then, this weekend, I discovered that the Court would be issuing opinions today.  On my walk this morning my mind was filled with all of the ways the Court might rule with respect to these highly anticipated decisions. Those possibilities covered a full spectrum of actions, each with its own explicit and implicit meanings.

             Underlying all of the possibilities was why the Court had even agreed to hear these cases when there was no recognized legal basis for not requiring the subpoenas to be honored.  Trump’s attorneys had simply contended that a sitting President not only could not be criminally prosecuted, a proposition for which there is no judicial precedent (only a Department of Justice internal memorandum), but that he couldn’t even be the subject of an investigation, a contention that essentially reads the Impeachment clause out of the Constitution.

            The arguments of the President’s attorneys were wholly rejected by two U.S. District Courts and two U.S. Courts of Appeals. In an effort to discourage the Supreme Court from even hearing one of these cases, the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s decision compelling compliance with the subpoena issued by the Manhattan District attorney on the President’s accounting firm on the narrowest of grounds. The DC Circuit had affirmed the DC District Court’s decision relating to Congress’ subpoenas to the President’s bankers for a broad spectrum of Trump’s financial records in a far more wide-reaching opinion.

            One possibility that occurred to me was that the Court would issue a one-paragraph opinion saying that their December decision to hear the cases had been “improvidently granted.” This manner of disposing of a case (which happens once or twice a term) would have left standing the decisions of the two Courts of Appeals.  While it would have been an admission that the the Court should have never agreed to hear the cases in the first place, it would have provided no reasoning why they had been accepted or which of the Court’s Justices had voted in favor of hearing them.  It, of course, would have raised allegations that the Court was playing politics and had taken the cases in order to delay the disclosure of the President’s personal financial information until after his impeachment proceeding had been concluded.

            A similar approach that occurred to me might have been to issue a Memorandum Opinion affirming the decisions below. This type opinion is not signed by a member of the Court and, therefore, obscures not only who had voted to hear the case or who had voted to simply let the decisions below stand.  In a Memorandum Opinion, rather than simply allow critics of the Court speculate as to why it had agreed to hear the cases, the Court might have explained that it had initially agreed to hear the cases because partisan rancor had grown to such a level that the Court’s initial instinct was to provide guidance to the lower courts for handling such issues which would inevitably come before them. Having been unable to come to an agreement on a set of broad principles to guide the lower courts, the Court opted to simply reaffirm the decisions below and await further cases before providing further guidance.  This would have been a reasonable explanation for its actions and would have helped counter criticism that the Court’s decision to hear the cases had been politically motivated.

            Of course, what the Court should have done was to issue an opinion reiterating the well-accepted belief that the President is not above the law and nothing prevents his actions from being investigated.  In both of these cases the President wasn’t being asked to give testimony or to personally produce documents and, therefore, compliance with these subpoenas which were directed to the President’s accountants and bankers would not have interfered with his performing the duties of his office.  The Court’s decision need not have even addressed whether the the President could be prosecuted either criminally or civilly as those questions were not before the Court. While such a decision would have added nothing to what had been said by the two appellate courts, it would have at least been an affirmation by the nation’s highest court.

            A decision quashing the subpoenas would have been a drastic departure from prior decisions that have enforced subpoenas served on a sitting President.  This would have not only been perceived as a highly politically partisan decision, but one which would have done grievous damage to the notion that the Congress has both the right and the duty to oversee the actions of the Executive Branch of the federal government.  Even though the Court has issued a number of decisions over the past two decades that were obviously politically motivated, such a decision would have been so detrimental to the way the nation’s government has operated for the past 250 years, that it would led to an Executive Branch free of accountability. 

            Another way the Court might have dealt with the cases would have been to come up with an issue that it felt needed greater exploration and remanded the cases back to the lower courts to explore that issue. Considering the fact that the subject subpoenas have already been making their way through the federal judiciary for at least the past eighteen months, such action would have been viewed with great skepticism, particularly in light of the vary narrow basis upon which the Second Circuit had grounded its decision.

            The Court chose none of these possibilities that passed through my mind as I took my morning walk. Instead, it did just what I had concluded it had done last week; namely, adjourned the term without issuing an opinion on cases that would have likely revealed matters of great interest to the American public, particularly since there had been calls for the disclosure of the President’s financial information that significantly predated his election in 2016.  This was an abdication of the Court’s responsibilities no less than the President’s own failures to lead the fight against the coronavirus pandemic or to stand up against the lawless actions of Russia.  In this sense, the Court has reached a new low.