Analysis: U.S. Supreme Court expected to rule soon on trio of pivotal Trump tax cases

Back-to-back oral argu­ments in cas­es seek­ing Don­ald Trump’s finan­cial records saw many of the nine jus­tices of the Unit­ed States Supreme Court take dif­fer­ing tones when debat­ing the lim­its of con­gres­sion­al over­sight ver­sus pres­i­den­tial immu­ni­ty in the face of a grand jury investigation.

In tele­phon­ic oral argu­ments held May 12th, 2020, the jus­tices appeared split on whether it was with­in Con­gress’ pow­er to obtain Don­ald Trump’s finan­cial records via sub­poe­na. But they appeared more open to giv­ing New York City the same records for its inves­ti­ga­tion con­cern­ing whether Trump engaged in any wrong­do­ing when list­ing pay­ments to Stephanie Clif­ford and Karen McDou­gal as legal expens­es on his busi­ness records.

The Supreme Court heard the much-antic­i­pat­ed con­sol­i­dat­ed cas­es of Trump v. Mazars USA (also known as Sup. Ct. Dkt. No. 19–715) and Trump v. Deutsche Bank (also known as Sup. Ct. Dkt. No. 19–760), to con­sid­er the issue of sep­a­ra­tion of pow­ers after three con­gres­sion­al com­mit­tees asked for Trump’s finan­cial records. It almost imme­di­ate­ly then heard Trump v. Vance Jr. (also known as Sup. Ct. Dkt. No. 19–635), in which New York Coun­ty Dis­trict Attor­ney Cyrus Vance Jr. has been seek­ing Trump’s finan­cial records and tax returns.

In all, the court heard over three hours of oral arguments.

From one assess­ment:

The jus­tices appeared more open to giv­ing New York City the same records for its inves­ti­ga­tion of whether Trump engaged in any wrong­do­ing when list­ing pay­ments to Clif­ford and McDou­gal as legal expens­es on his busi­ness records.

From another:

A major­i­ty of the jus­tices appeared skep­ti­cal of Mr. Trump’s argu­ment, in response to a sub­poe­na from the Man­hat­tan dis­trict attor­ney, that he was absolute­ly immune from crim­i­nal inves­ti­ga­tion while he remained in office.

But the court seemed more recep­tive to Mr. Trump’s argu­ment that the three House com­mit­tees had asked for too much infor­ma­tion for rea­sons unre­lat­ed to their leg­isla­tive responsibilities.

I have observed many legal teams try to catch a break when they suf­fered a string of big loss­es in a case or through a series of cases.

Trump can’t change the team, the strat­e­gy, or even flood the field like Crash Davis in Bull Durham to inter­rupt a bad sit­u­a­tion unfold­ing. (Good­ness knows he’s tried to change the jus­tices involved, with a lit­tle help, time and again.)

Books and records are the foun­da­tion for the tax returns filed, and for every oth­er local, state, and fed­er­al tax.  Also, loan appli­ca­tions and cur­ren­cy report­ing are inte­grat­ed into such books and records, along with employ­ment tax­es and jus­ti­fi­ca­tions for real estate and intan­gi­ble valuations.

Trump has a lot of rea­sons to hide those.

All he and his legal team have is hope, though, which is rarely a strat­e­gy for suc­cess unless it comes with a whole lot of luck.

In this case they are total­ly out of luck, because no priv­i­leges are avail­able regard­ing account­ing books of orig­i­nal entry, bank records, or trans­ac­tion doc­u­ments. In my for­mer respon­si­bil­i­ties as a fed­er­al civ­il enforce­ment agent, I was able to obtain records and com­pel tes­ti­mo­ny in sit­u­a­tions like this routinely.

Sub­jects were required to appear with the books and records and give tes­ti­mo­ny about them, even if they invoked the Fifth Amend­ment to avoid self-incrim­i­na­tion. But the mate­r­i­al had to be present and available.

Ignor­ing an IRS audi­tor, or say­ing no to records for a rou­tine audit, could get you a sum­mons to appear. If a sum­mons is ignored, it could result in a sur­prise hear­ing in a Unit­ed States Dis­trict Court.

Peo­ple who should have known bet­ter have ignored IRS sum­mons and have unex­pect­ed­ly found them­selves on the way to the cour­t­house escort­ed by U.S. Mar­shals instead of on the way home to their lov­ing fam­i­lies. And that’s just the aver­age guy in a small­ish shady deal. Don­ald Trump’s case would­n’t be at the Supreme Court if he was­n’t declar­ing spe­cial priv­i­leges.

It does­n’t real­ly mat­ter if Con­gress or the grand jury in New York get the records. Par­ti­sans will fret if the Supreme Court rules that the grand jury can have the records, and denies or is silent regard­ing the Con­gres­sion­al request.

The most min­i­mal touch rul­ing may be made by the Supreme Court to re-bal­ance the Earth and make it a bit less wob­bly, as their major­i­ty per­ceives it, and the rest of us will then have to pick up the pieces and try to bal­ance it all the more.

What should hap­pen, under exist­ing law, is that both the grand jury and the con­gres­sion­al inves­tiga­tive com­mit­tees be award­ed access to the records post haste. If the grand jury in New York receives the records, they will inevitably be shared with the appro­pri­ate Con­gres­sion­al inves­tiga­tive committees.

It’s per­fect­ly appro­pri­ate for the grand jury to han­dle those records and con­tin­ue their work under exist­ing secre­cy provisions.

State and fed­er­al tax agen­cies also, how­ev­er, have infor­ma­tion shar­ing agree­ments in place. It might be best if the state of New York takes the lead regard­ing the case any­way, since the Trump Orga­ni­za­tion has a long his­to­ry of malfea­sance in the New York area. New Jer­sey might be able to get in on the act as well. I per­son­al­ly think we should let New York and New Jer­sey have him, and get onto fix­ing the rest of the mess he and his regime have made.

I’m so sure that grand jury in New York will soon have Mazar’s records and maybe even Con­gress too, that I tried to call Lad­brokes, but they would­n’t take my bet.  I also tried to call Cae­sars Enter­tain­ment but they laughed and hung up.

So much for legal gam­bling pro­vid­ing all the enter­tain­ment and oppor­tu­ni­ty for prof­it that one could want, and when I for sure have a sure thing.

If you want to know what’s next, sign in over here to get noti­fied about the deci­sion, which is lit­er­al­ly due any day now.