The stay, which required the votes of five justices, was expected because it was necessary to ensure the government’s ability to argue to the high court that it should hear Trump v. Mazars, regarding a House committee’s subpoena of the president’s tax records from his accounting firm, Mazars USA. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit had ruled in October that the House Oversight and Reform Committee is entitled to the records. Under the expedited schedule set by the court, the administration’s petition for certiorari — or written argument that the court should take the case — will not be filed until Dec. 5.
If the court had not granted the stay, it would have meant that the issue was essentially decided, because the tax records would have had to be turned over to Congress pursuant to the D.C. Circuit ruling. Any later ruling by the Supreme Court that the subpoena is invalid would have been too late.
The parties have agreed on an expedited review to ensure that if the court takes the case, it will be decided this term — thus, by the end of June. The court’s expedited schedule on the petition for certiorari indicates its agreement to decide the case quickly if it takes it.
But will it take it? My best guess is yes, but the question entails some tricky calculations among the justices. It takes four votes to take a case, but five to win it. Assume, as many but no means all court-watchers do, that three or four justices (Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh) stand ready to reverse or at least limit the D.C. Circuit holding that the House could compel Trump’s accountant to turn over the records pursuant to its legislative and oversight powers. (The case originated before the impeachment investigation and does not concern Congress’s investigative powers in that context.)
If they think Chief Justice John G. Roberts Jr. eventually would provide the fifth vote to reverse in whole or in part, they would want to grant the case; if they think otherwise — i.e., think that the court would rule with Congress against the executive, they might prefer to let the D.C. Circuit ruling stand.
Still, the case presents a momentous separation-of-powers issue that might not arise again for decades, and the D.C. Circuit is sufficiently prestigious that its ruling would be nearly as authoritative as a Supreme Court resolution. Under those circumstances, if there are three or four justices who stand ready to reverse, my bet is they will roll the dice and count on Roberts’s general sympathy for broad assertions of executive power.
Why might that mean that Trump could prevail another year in his long struggle to keep his tax returns secret?
There is another case, Trump v. Vance, in which a different court of appeals has ruled decisively that the same Trump accountants must comply with a subpoena from the New York district attorney to produce the records. I have previously written that the decision was obviously correct and does not present an issue justifying the Supreme Court’s review. And that should mean that Mazars would soon have to turn over the records to the district attorney (who would be required to keep them secret, but not forever; not to mention that records have a way of leaking).
But a decision to take Trump v. Mazars would change that, because the New York case could be affected by whatever decision the court renders in the House case.
The court’s practice in such circumstances is to “hold” the related case pending the release of the decision in the main case, and here to stay the operation of the mandate. The court wouldn’t announce the hold — it wouldn’t announce anything. But it would be clear what was happening.
Eventually, after the court’s decision in Trump v. Mazars, the court would remand the New York case to the Second Circuit for consideration in light of the intervening decision. That would occasion a new round of written and oral arguments. So even if the court wound up reaching the same result, it wouldn’t be for six months or more, until the end of 2020.
The bottom line: After the Supreme Court’s grant of a stay in Mazars, it’s looking more likely that any troubling information in Trump’s taxes will stay hidden from the American people through the election.