- The Washington Times - Thursday, July 9, 2020

State prosecutors can demand to see the president’s tax returns but Congress faces a much higher hurdle, the Supreme Court ruled in a pair of cases Thursday, closing out its 2019-2020 term with a major statement on presidential powers.

The rulings, both 7-2 decisions, likely will shield President Trump’s financial records at least through the election. They give a win to Mr. Trump’s campaign because he has long refused to make his tax returns public as presidential candidates customarily have done for decades.

The high court, led by Chief Justice John G. Roberts Jr., rejected the president’s legal argument that he has “absolute immunity” from subpoenas for his personal financial records.

“Two hundred years ago, a great jurist of our court established that no citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” the chief justice wrote in one of the cases. “We reaffirm that principle today and hold that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard.”

That means prosecutors in New York can subpoena the president’s tax returns as part of an ongoing criminal probe, though the justices said Mr. Trump may fight them other ways. Even if the documents are turned over, they may be bound by grand jury secrecy rules.

When it comes to Congress, neither the president nor the Democrat-led House properly settled an important separation of powers issue as they fought over access to the tax returns, the court ruled.

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The case was sent back to lower courts to determine whether Congress had a legitimate legislative need to see the president’s personal information or whether it was launching an out-of-bounds political attack.

Mr. Trump, on Twitter, called the attempts to pry loose his financial documents “political prosecution.”

“I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!” the president said.

House Speaker Nancy Pelosi, California Democrat, said the ruling provides a road map for continuing the battle in lower courts.

“Congress’ constitutional responsibility to uncover the truth continues, specifically related to the president’s Russia connection that he is hiding,” she said.

Republicans said Democrats will be hard-pressed to prove they have a legitimate reason for pursuing the president’s records.

Although presidents have to file financial disclosures, they are not bound by law to make their tax returns public. Every major party nominee has done so voluntarily for decades, but Mr. Trump has broken with that tradition.

He has said he is under an IRS audit and that it would not make sense to release his records in the meantime.

His determination to shield the records has been matched by his opponents’ eagerness to see them. During the 2016 campaign, those opponents speculated that his tax returns would expose ties to Russia or show other red flags.

Manhattan District Attorney Cyrus Vance, meanwhile, subpoenaed Mazars USA LLP, Mr. Trump’s accounting firm, for his financial records as part of a probe into financial dealings of individuals surrounding the president.

The president sued to block his accountants from complying and argued that he is immune from a subpoena while in office.

The high court rejected that broad claim, saying courts have long held that even presidents must comply with the justice system.

Sending the case back to lower courts, Chief Justice Roberts said the president could challenge the subpoena on other grounds, such as claiming it is overbroad, issued in bad faith or causing an undue burden.

“He can challenge the subpoena as an attempt to influence the performance of his official duties,” the chief justice wrote.

Mr. Vance called the ruling a “tremendous victory.”

“Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead,” he said.

Congress’ access to documents is less clear.

The court ruled that neither Mr. Trump nor House Democrats stayed in legal bounds.

Congress does have the power to subpoena the president for some records, even personal ones unrelated to official actions, but those requests must be narrow and must be aimed at important legislative purposes, the court said.

To allow Congress to demand anything it wanted would violate the separation of powers, reducing the authority of the White House and short-circuiting the usual give-and-take, Chief Justice Roberts wrote.

“We would have to be ‘blind’ not to see what ‘[a]ll others can see and understand’: that the subpoenas do not represent a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved,” the chief justice wrote.

When a congressional subpoena to the president is challenged in court, judges must assess the legislative purpose lawmakers use to justify the demand, must insist that the subpoena is as narrow as possible, and should be aware of the burdens placed on a president by complying, he said.

Justices Neil M. Gorsuch and Brett M. Kavanaugh, Mr. Trump’s two picks to the high court, joined the majority in both cases.

Justices Clarence Thomas and Samuel A. Alito Jr. dissented in each case.

In the New York dispute, Justice Thomas said he agrees with the majority that the president doesn’t have absolute immunity but that he should not be subject to the prosecutors’ demands if he can prove “his duties as chief magistrate demand his whole time for national objects.”

As for Congress, Justice Thomas said he would have ruled that lawmakers can’t compel the president to turn over personal documents. He said if Congress wants to force the president’s hand, then the correct tool is impeachment.

Three congressional committees sought Mr. Trump’s financial documents for investigations into terrorism, money laundering and other matters.

A fourth committee, the House Ways and Means panel, is trying to force the IRS to provide the president’s tax returns to Congress. That fight is also in the courts.

Some legal analysts said Democrats bungled their effort by pursuing the subpoenas and that Thursday’s ruling places new limits on Congress now and in the future.

“The court’s decision is another illustration of the principle, ‘Be careful what you ask for,’” said Thomas G. Hungar, a former House general counsel who called the ruling “a major judicial loss that threatens to undermine congressional oversight powers going forward.”

Rep. Bill Pascrell Jr., a New Jersey Democrat who has been the loudest voice demanding Mr. Trump’s tax returns, agreed that the rulings were a setback for Congress. He said they allow the president “to run out the clock.”

“The Supreme Court has failed the American people,” he said.

⦁ Stephen Dinan contributed to this report.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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