My Turn: Score one for independent judiciary

  • In this Feb. 5, 2019, file photo, Supreme Court Associate Justices Neil Gorsuch (left) and Brett Kavanaugh watch as President Donald Trump arrives at the Capitol to give his State of the Union address. AP

For the Monitor
Published: 8/12/2020 6:20:44 AM

The two U.S. Supreme Court decisions on President Donald Trump’s financial records handed down on July 9 attest to the independence and integrity of the American judiciary.

The opinions dealt Trump both political victories and legal defeats. The opinions are political victories for Trump because they virtually ensure that the public will not see his financial records before the election. We will see no documents before Election Day to confirm or deny the suspicion that he has paid minimal, if any, taxes. Likewise, we will see no documents before Election Day to confirm or deny the suspicion that he has financial interests in Russia motivating his failure to take action in response to intelligence that Russia placed bounties on the lives of American soldiers.

But the opinions are legal defeats because they squarely reject the president’s arguments that he need not comply with subpoenas, and that he is effectively above the law, simply because he is president. Both decisions set forth road maps for the ultimate disclosure of Trump’s financial records.

The decision addressing the enforceability of congressional subpoenas held, quite simply, that nobody addressing the question had applied the appropriate analysis – not the president, not Congress, and not the lower courts. The court announced a four-part balancing test that courts must apply to address the enforceability of such congressional subpoenas, noting that the need for the court to devise such a test had not previously arisen because the branches had historically reached compromise solutions – before Trump. (“Compromise solution” isn’t the game Trump plays – he’s a street fighting man!)

Because the role of appellate courts such as the U.S. Supreme Court is limited, the court could not itself apply the balancing test it just announced to determine the enforceability of the congressional subpoenas. The Supreme Court did what it had to do under the circumstances. It sent the case back to the lower courts, or “remanded” the case, for the lower courts to determine the enforceability of the subpoenas by applying the balancing test the court just put forth.

The application of that balancing test could ultimately lead to enforcement of those congressional subpoenas against Trump – someday, just not today.

The decision regarding enforcement of New York criminal subpoenas against Trump is even worse for him. He cannot avoid compliance simply because he sits in the Oval Office. He can merely object to them on the grounds that anyone can raise in opposition to a subpoena in a criminal case, such as overbreadth. Like the decision regarding congressional subpoenas, the decision on criminal subpoenas augurs of a day when the financial records the president desperately does not want us to see become the stuff of front page headlines.

Sure, I would have loved for the Supreme Court somehow to have issued Orders compelling the immediate disclosure of the records that every other modern-day president has voluntarily disclosed. But in the final analysis, I believe the court’s decisions are intellectually sound.

And I take solace in the fact that the president’s hand-picked nominees to the court – Justices Neil Gorsuch and Brett Kavanaugh – voted with the 7-2 majority in each case. In my 23 years of practice in the American justice system, I have never encountered an instance where justice was bought. Justices Gorsuch and Kavanagh affirmed the independence of the American judiciary with their votes. You can’t buy me love, and you can’t buy my vote just because you nominated me to the court. God bless America.

(Benjamin T. King resides in Concord and is a partner in the Concord law firm Douglas, Leonard & Garvey, P.C.)

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