It announced Tuesday that it will consider on Dec. 13 whether to schedule a full briefing and argument on the president’s request that it overturn a lower-court ruling giving New York prosecutors access to Trump’s tax returns and other financial records in their investigation of hush-money payments in the lead-up to the 2016 election.
There are many more such evaluations to come.
“This is a real existential test for this Supreme Court,” said Walter Dellinger, a longtime member of the Democratic legal establishment who argued for President Bill Clinton when the Supreme Court ruled he was not immune from a lawsuit.
“This will be a special moment for the independence of the judiciary and whether the hyperpartisanship that has infected so much of our culture has also infiltrated the Supreme Court.”
In the 1997 Clinton case, the court was unanimous. The same was true in 1974’s United States v. Nixon, in which the president was forced to comply with a grand jury request.
Dellinger added: “I don’t mean to suggest that the only judicious result would be a unanimous opinion against the president. . . . It’s not really the results of the cases” but how the justices present their legal arguments should they disagree.
The court took its first step Monday, when it put on hold a ruling that the House Oversight and Reform Committee has the authority to review essentially the same financial records as the New York prosecutors. The committee’s Democrats want to investigate alleged discrepancies in Trump’s financial disclosures and whether laws need to be tightened.
The court’s order came in an anodyne statement with no dissents — just the kind of thing legal experts say the court strives for.
But the cases come with personal connections and baggage for the justices and at least appearances that could cause questions about objectivity.
For instance, there was no indication in Monday’s short order that Justice Ruth Bader Ginsburg had recused herself from the Trump financial records case, despite past criticism. She disapproved of Trump when he was a candidate in 2016 for not releasing his tax statements, as past presidents and nominees have done. She later said she should not have made such comments.
And the first case likely to reach the Supreme Court on the question of Trump’s broad assertion of executive power over those who worked for him features former White House counsel Donald McGahn, who played a pivotal role in the confirmation of Trump’s Supreme Court nominees, Neil M. Gorsuch and Brett M. Kavanaugh.
Kavanaugh, especially, credits McGahn. At a Federalist Society gala this month, Kavanaugh mentioned McGahn first in a 30-minute speech that was like an extended thank-you note to those responsible for his confirmation.
The two shared an affinity for the movie “Miracle,” based on the U.S. hockey team that won the gold medal at the 1980 Olympics. McGahn would send Kavanaugh clips portraying coach Herb Brooks exhorting his team to “go out there and take it.”
“I admit that it doesn’t sound like a whole lot, but it worked for the U.S. hockey team and Don somehow made it work for me,” Kavanaugh told the crowd. “ ‘Do you believe in miracles?’ Yes. Coach McGahn, thank you.”
It is widely accepted that justices participate in cases important, even personally, to the presidents who nominated them. Three of President Richard M. Nixon’s nominees joined the unanimous court ruling against him in the decision requiring him to turn over White House tapes in a criminal investigation. (Another, William H. Rehnquist, recused himself because he had actually worked in the Nixon administration.)
Likewise, Clinton nominees Ginsburg and Stephen G. Breyer were on the unanimous court that found Clinton had to answer Paula Jones’s lawsuit that accused him of sexual advances. It was written by Justice John Paul Stevens, then the leader of the court’s liberal wing.
Susan Low Bloch, a Georgetown law professor who testified before the House as an expert during the 1998 Clinton impeachment inquiry, said “it would be highly desirable” for the Supreme Court to “speak with one voice” in ruling on these politically charged legal questions involving Trump.
“I am fairly confident that Chief Justice [John G.] Roberts would like that. Whether or not he can get it is another question,” she said.
Bloch is among those who say Kavanaugh should recuse himself in the McGahn case, should it reach the high court.
“He appropriately worked closely with McGahn on the appointment process and it would be an appearance of impropriety if Kavanaugh sat on the case,” Bloch said.
Stephen Gillers, a judicial ethics expert at New York University’s law school, disagreed.
In general, justices are reluctant to recuse, he said, because it leaves the court with only eight votes and increases the chances of deadlock.
In the case involving the House subpoena for McGahn’s testimony, Gillers said Kavanaugh could separate the man and the office, because the issue is about the role of White House counsel.
“Even if there’s a close relationship, it shouldn’t matter,” Gillers said, because McGahn’s personal interests in terms of his finances, status as a lawyer and reputation are not at stake.
“Kavanaugh might well say, ‘Yes, I have a strong, positive close relationship with McGahn, but he’s not at risk. He’s simply looking for guidance on what his obligation is.’ ”
Similarly, Gillers thinks Ginsburg is right to participate in Trump cases; her comments were political, not legal, commentary, he said.
Gillers said the coming Trump cases are the reason the Supreme Court exists.
“Surely they don’t want to be seen as political, but they also know these are the momentous decisions they want to write and be remembered for,” Gillers said.
Added Ryan Goodman, a New York University law professor and a former lawyer at the Defense Department: “In this highly politically charged environment, there are few institutions left that the public can trust, and unfortunately for the court, some of these issues will be perceived as highly political.”
Among the other cases in the pipeline is the House Ways and Means Committee lawsuit seeking the president’s tax returns from the Internal Revenue Service. Unlike the two subpoena cases already before the Supreme Court, the House lawsuit invokes a 1924 law that gives the chairmen of the tax-writing committees the authority to obtain the returns of any taxpayer.
In the second week of December, appeals courts in Washington and Richmond will hear separate arguments in cases alleging Trump is violating the anti-corruption “emoluments” provisions of the Constitution when his private companies benefit from business transactions with foreign and state governments.
That same week, U.S. District Judge Richard Leon in Washington will consider whether Charles Kupperman, the deputy to former national security adviser John Bolton, must comply with a House subpoena — now withdrawn — for testimony in the impeachment inquiry.
But the need for well-considered, precedent-setting legal opinions is not a good match with the House’s fast-moving impeachment inquiry. The Senate would be quickly called upon to hold a trial if the House, as expected, impeaches the president. Roberts, as chief justice, would preside over the Senate deliberations.
Although Dellinger points out that the Supreme Court can act quickly when it needs to, resolution of the legal issues and the culmination of impeachment are unlikely to coincide.