The high court should not let Trump run out the clock. But if a bare majority of the justices wished to, they could.
The case involves a subpoena issued April 15 by the House Oversight Committee to the president’s accountants, Mazars USA, for financial statements they prepared on behalf of Trump, his trust and foundation and several Trump-owned businesses from 2011 through 2018. The subpoena also calls for “[a]ll underlying, supporting, or source documents and records” that the accountants used when producing those statements. That demand potentially encompasses Trump’s long-elusive tax returns if Mazars relied on them when preparing his statements.
Seven days after House Oversight Committee Chairman Elijah E. Cummings (D-Md.) sent the subpoena to Mazars, Trump sued his accountants in federal district court in Washington to stop them from complying with the congressional demand. Judge Amit P. Mehta made quick work of Trump’s claims, ruling on May 20 that the subpoena was enforceable immediately. Trump sought relief from the U.S. Court of Appeals for the D.C. Circuit, and the appeals court put Mehta’s ruling on ice temporarily while it took up the case. It, too, proceeded at a fast clip, holding a rare summer oral argument on July 12 and issuing its decision just shy of three months later.
Without strong legal arguments and with the general election fast approaching, Trump’s best strategy now is to stall. D.C. Circuit rules give Trump 30 days to ask for a rehearing before the three-judge panel that initially decided his appeal or before all 11 active judges on the circuit court. It’s unlikely that the panel or the full circuit will grant Trump’s request, but 30 days from last Friday, the general election will be less than a year away.
Once the D.C. Circuit resolves the rehearing petition, Trump will have — according to the appeals court’s order — seven more days before Mehta’s ruling takes effect. During that window, the president will scramble to obtain a stay either from the D.C. Circuit or the Supreme Court. He will argue the ruling against him should be placed on hold while he petitions the justices to hear his case. His lawyers will say — not unreasonably — that without a stay, the case would become moot because Mazars would have to hand over the documents to Congress before the justices could weigh in.
If he obtains the stay, Trump may well have won his war against time.
The losing party in a lower-court case has 90 days to file a certiorari petition, potentially allowing Trump to wait until late February to seek Supreme Court review. That’s not all, because the court typically takes several more weeks to consider amicus briefs, the winning party’s response and the losing party’s reply before it decides whether to grant the petition. Washington’s cherry blossoms may be in full bloom before we even know whether the Supreme Court will hear the case.
At that point, the next opening on the Supreme Court’s regular oral argument schedule will probably not be until the beginning of the next term, Oct. 5, 2020, when early voting will have started in several states and the general election will be just four weeks away. By the time the court releases its opinion, Trump either could have already taken the oath of office a second time, or he could be out of the White House and licking his electoral wounds at his Mar-a-Lago resort.
But such delay need not be destiny. The justices can allow Trump’s lawyers to idle — or they can put the case on a much faster timetable and resolve it well before voters must decide whether to reelect the president.
If the justices choose to move quickly, the case could proceed as follows. When Trump’s lawyers seek a stay from the Supreme Court, the justices could — as they did in Bush v. Gore — construe the stay application as a petition for certiorari and grant review immediately. (Alternatively, they could deny Trump’s stay application and his request for further review — concluding that Mehta and the D.C. Circuit have given his arguments all their due — though they may decide, not unjustifiably, that a high-profile dispute between the president and the legislature ought to be resolved finally by the highest court in the land.)
The justices could then order the parties to file briefs on an expedited time frame and hold oral argument this winter. That would allow for a final decision well before the court’s summer recess, which typically begins in late June or early July. If the justices rule in the House’s favor, then the Oversight Committee would have plenty of time to review Trump’s financial documents and decide what should be released to the public before the election.
There is ample precedent for this accelerated approach. In the 1971 Pentagon Papers case, the Supreme Court issued its final decision a little more than two weeks after the first district court hearing. In United States v. Nixon in 1974, just over three months passed from the special prosecutor’s subpoena for the White House tapes and the Supreme Court’s final ruling. In Bush v. Gore, then-Texas Gov. George W. Bush asked the Supreme Court for a stay on a Friday, and the court heard oral argument the following Monday and issued its decision on Tuesday. The wheels of justice usually turn slowly, but the court can spin them much faster when the stakes are high and time is of the essence.
Whether the court speeds up its consideration of the Mazars case will have subtle but significant implications for the balance of power between the executive and legislative branches. If the Supreme Court allows itself to be used by Trump to stave off congressional inquiries, then the practical power of the presidency will expand even if the ultimate decision goes in the House’s favor. If the justices act quickly to resolve document disputes between the president and lawmakers, then the court will enhance the efficacy of congressional oversight and bolster an important check on executive branch misconduct.
Legally, there is little that the House can do to force the high court’s hand. Public opinion can, however, judge the justices based on their pace as well as the result they reach. Chief Justice John G. Roberts Jr., who is increasingly the swing vote on a sharply divided court, no doubt knows that this case will be central to the legacy that he leaves. Upholding the House’s subpoena power will help Roberts counter charges that he has been too pliant to this president — but only if his court reaches its result in time for it to matter.