The Supreme Court rebuked Donald Trump, the arrogant president. The Supreme Court has prepared a world of trouble for Donald Trump, the dirty businessman. But the Supreme Court has done a tremendous favor to Donald Trump, the candidate for reelection.
Trump’s legal arguments to protect his business records from subpoena were always miserably flimsy, when not actively crazy. On Trump’s behalf, the Department of Justice urged the Supreme Court to junk precedents dating back to the 1880s. Government lawyers proposed that the Court invent a fantastical new system of judicial oversight of subpoenas of the president. Those arguments were always bound to lose, and in a pair of decisions on Thursday, the Court rejected them.
But Trump’s legal strategy was cannier than his legal arguments. The strategy was to play for time, to push the day of reckoning beyond November 2020. That strategy has now paid off.
The Court has ruled that the district attorney in Manhattan can subpoena records from Trump’s bankers and accountants, but also enumerated the specific grounds on which Trump can challenge those subpoenas, and sent the case back down to the district court. If Trump chooses to contest those subpoenas, it is exceedingly unlikely that the litigation can be resolved before November. Even if it is, prosecutors might not be able to frame an indictment of Trump before November. And even if they do, it’s very plausible that a New York judge might agree to seal the indictment so as not to prejudice the election.
Trump may eventually face trial in New York for fraud, if the financial records support the claims of some of his former advisers. But it’s doubtful that the New York proceedings will provide much information to voters in advance of the November election. Yes, the stink of criminality about Trump will intensify. But that smell has always registered only in the nostrils of those who use their noses. Specific allegations of particular crimes will probably not be posted for public view until 2021.
The Court turned back, for now, the subpoenas that could enlighten the public: those issued by the House of Representatives. That case will be reargued in lower courts, under new rules that suggest the House will win eventually. But it will not win soon—and that’s all candidate Trump cares about.
Trump has lived his whole life one jump ahead of the law. As The New York Times reported in 2018, relying on documents provided by the president’s own niece, Trump “participated in dubious tax schemes during the 1990s, including instances of outright fraud,” that enlarged the fortune he inherited. In 2019, ProPublica presented evidence that Trump might have committed bank fraud. Completing this presidential term with the cops breathing down his neck may not be comfortable for Trump, but it will not be unfamiliar or unmanageable for him.
What Trump has never before faced—and what, thanks to the Supreme Court, he will not face before November—is a public reckoning for his acts. He has lived a lie, presenting himself as a great American businessman. In the eyes of much of the American electorate, that lie will continue past Election Day.
The decisions in the subpoena litigation reaffirmed the rule of law in the face of Trump’s defiance—while adjusting the timing of the law to favor Trump’s candidacy.
The Roberts Court’s majority has delivered a result that is both conservative in its constitutionalism and Republican in its partisanship. The majority has deftly served two masters, in ways that protect the justices from both the criticism of the legal community and the reproaches of their political allies in Congress and the rest of the country. The only losers are the American people.
In every way Trump cares about at this moment, he has gotten away with it. He has gotten away with stonewalling, gotten away with alleged law-breaking. He has not gotten away with it forever. It will catch up to him. But Trump never thinks so far ahead. In law, as in his approach to the pandemic, Trump’s one thought is: Save myself today; I'll worry about tomorrow tomorrow. The Supreme Court saved Trump today.
Trump has tweeted his fury and self-pity at the court’s decisions. He is not grateful, but he should be.
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