Seven Supreme Court justices ruled yesterday morning that Donald Trump is not a king.
But Trump still got what he wanted.
Since Trump announced his candidacy for president in 2015, he has vowed to release his tax returns, and has also refused to release his tax returns. After the 2018 midterms, Democrats in the House sought to subpoena financial institutions for Trump’s records, and Manhattan District Attorney Cy Vance sought Trump’s financial records for a grand-jury investigation into whether Trump broke the law when he concealed hush-money payments to hide past affairs during the 2016 election. In one opinion, Trump v. Mazars, the Court affirmed Congress’s subpoena power but sent the case back to lower courts for further litigation; in Trump v, Vance, it affirmed Vance’s authority to seek the records but sent the case back to the lower courts for further litigation.
In other words, what is apparently a defeat for Trump is still a victory for his presidential campaign: The public will not see the financial records that he has been promising to reveal for the past five years, and voters will remain in the dark about the president’s potential entanglements and conflicts of interest as they go to the polls for the second time.
“In our judicial system,” Chief Justice John Roberts wrote in Vance, quoting an old legal maxim, “‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Nevertheless, Roberts wrote, while Trump does not have absolute immunity to Vance’s subpoenas, he can continue to contest particular subpoenas individually on various grounds in the lower courts, including arguing “that compliance with a particular subpoena would impede his constitutional duties.” Vance’s grand jury may ultimately get its hands on the president’s documents, but the public will not see them anytime soon, if at all.
In Mazars, Roberts acknowledged that “the standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities,” but he also rebuked the House for its own argument, which would leave “essentially no limits on the congressional power to subpoena the President’s personal records.”
The exalted language of Roberts’s opinions conceals their results, which are, to paraphrase Saint Augustine: Give me oversight, and give me transparency, but not yet.
In fairness to Roberts, there is a public interest in preventing Congress from simply trying to impede presidents’ ability to do their job, and the chief justice was likely averse to having the Court appear to be interfering in a presidential election. But Roberts’s decisions will ultimately shield Trump from necessary public scrutiny.
The president is subject to no meaningful oversight if the executive branch can simply run out the clock by litigating the minutiae of each request—and a president need only hold out for the two years between congressional elections, allowing the subpoenas to expire—but that is the situation Roberts has produced: the president who is nominally not immune to such requests but has clear avenues for avoiding them—at least, as long as he can retain a friendly majority on the Court.
The decision is disastrous for the public, but a grand victory for the Roberts Court as an institution. After all, in both cases, Justice Brett Kavanaugh, who vowed revenge on the left at his confirmation hearing, and Justice Neil Gorsuch, who was presented by Trump as a reward to conservative activists for putting him in office, joined the majority, showcasing their independence without actually defying the president in any meaningful way. They ruled against the Trump administration’s claim of absolute immunity, while paving a path for Trump to avoid releasing the requested information until after the election. The independence of the Supreme Court’s conservative majority is affirmed, while still granting the president the outcome he desired.
And the Court’s Democratic appointees have their own incentives to join such a ruling. Affirming that the president is not above the law, even if only in principle, is a better outcome than a ruling that favors Trump and also credits his claims of absolute immunity. A Pyrrhic victory perhaps, but preferable to one that inscribes Trump’s autocratic view of the presidency into the law.
Roberts has repeatedly rebuked the Trump administration for its bureaucratic dishonesty, ruling against it on the grounds not that the president exceeded his powers, but that his administration failed to follow proper legal procedure. Here, it is Roberts who is playing games, shielding Trump from accountability and gilding the Court’s image, asserting a bravery and independence that it has not actually displayed. The Roberts Court has completed Trump’s cover-up, while cloaking its reasoning in majestic language about the rule of law.
Although the decision encourages future presidential administrations to simply delay future legal fights over disclosure indefinitely, Democratic presidents should not expect the same treatment from the Roberts Court. A Court that wishes to compel timely disclosure can avail itself of the legal standards set forth by the chief justice, while a majority that wishes to protect a president can use the restrictions Roberts laid out to shield him or her from scrutiny.
The Supreme Court has decided that the president is officially not above the law. But only officially.
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