Will the Supreme Court protect the rule of law, or Donald Trump?

The Supreme Court has agreed to take up three cases involving the congressional and grand jury subpoenas served on President Trump’s company, his outside accounting firm and one of his lenders, Deutsche Bank. The subpoenas demand his financial records and tax returns over the past eight years, including five years when he wasn’t president. At issue also are grand jury subpoenas served by Cyrus Vance, New York County’s district attorney, requesting similar information. 

Oral arguments before the high court will occur in March, with a decision expected before the end of June. 

Chief Justice John Roberts has said repeatedly that his is a court of law – not a Democratic court or a Republican court – but the Roberts court has signaled that it is in serious danger of tilting in a supremely partisan direction. Roberts and his conservative colleagues will have difficulty convincing anyone that a reversal of every federal court that has looked at these three cases is anything other than a partisan decision — in short, another Bush v. Gore decision. (The late Justice Antonin Scalia, who voted with the majority in Bush v. Gore, said that case was sui generis, or “in a class of its own,” while Justice Sandra Day O’Connor, also in the majority, said it was a vote she always regretted.)

The court’s decision in this instance will come down at the peak of the election season. And, if Trump is reelected, he may owe an unfair victory to an electorate uninformed by all the knowable facts bearing on his alleged criminality, corruption and indebtedness to foreign powers.

When I first learned of these three cases, I was having lunch with a close friend who, like me, is a former federal prosecutor but, unlike me, is a contrarian conservative. He remarked: “Even (Justice) Clarence Thomas will vote to sustain these subpoenas.” I agreed.

The law in this instance is decidedly against the president, and so are the precedents. In the cases of both Presidents Nixon and Clinton, the court sustained subpoenas served directly on the president (unlike those involved in these three cases). Justices appointed by both parties in those earlier cases voted to require production of presidential documents, vindicating the constitutional principle that no one, not even a president, is above the law. 

Can this court, despite its conservative inclination, possibly ride roughshod over its precedents and reverse itself, because its members believe in virtually unbridled executive powers? Remember, these subpoenas do not seek information bearing on official presidential acts but on private acts arising out of businesses that Trump chose to conduct both before taking office and thereafter. Remember, too, that these subpoenas were not served on the president but on third parties, so Trump is not required to do a blessed thing.

Trump’s essential argument is that the congressional subpoenas do not serve any legislative purpose and are designed to harass the president in an election year. The president, his argument goes, must not be distracted or harassed when he is charged with being commander in chief, executing the laws and conducting foreign policy. This argument overlooks that the impeachment process, baked into the Constitution, is a “distraction” to the president, in and of itself. 

Trump should not be unduly burdened if third-party custodian bankers, his company and his accountants turn over financial records and tax returns in response to a subpoena. In our legal system, this happens routinely, usually without a court fight. It is really not intrusive on his official duties for the president to turn over financial records. As president, he is still required to prepare and file tax returns, as well as detailed financial disclosure forms — and if that is not unduly intrusive, then surely compliance with subpoenas is not intrusive. 

The past five presidents have voluntarily made public their tax returns. Only Trump has guarded his tax returns with a ferocity that invites suspicion as to what those might contain. As Elaine Kamarck, a Brookings Institution senior fellow in government studies, suggests in a recent article, “Why Trump’s tax returns are so important,” those returns may show that “his comeback from a highly publicized 2004 bankruptcy is due to Russian money laundering.” In short, she argues that the tax returns may be the last shoe to drop on the Trump presidency, revealing for all to see that he is a “wholly-owned subsidiary” of the Russians. 

The Vance subpoenas present a case of first impression. The district attorney wants to investigate what information there may be in Trump’s tax returns that could be relevant to illegal hush-money payoffs to two women with whom Trump is said to have been involved. Here, Trump claims a broad immunity not only from prosecution but from investigation by the states. Otherwise, he argues, any tinhorn prosecutor in the country could harass him with subpoenas and investigations. Unfortunately for Trump, no such immunity appears in the Constitution, and his notion of a parade of horribles is pretty far-fetched.

Trump’s lawyer stood in the court of appeals and took the astounding position that even if Trump shot someone on Fifth Avenue, the police and district attorney could not investigate the shooting. Trump contends broadly that the states lack the constitutional power to investigate or prosecute the president. But suppose he did murder someone on Fifth Avenue? Could the police not gather witness statements? Could a local prosecutor not convene a grand jury? The argument for immunity from state criminal investigation or prosecution in such a situation is preposterous.

Vance may well argue that if he has to wait until Trump leaves office, the statute of limitations may run out on serious crimes. Trump’s lawyers, however, may well argue with some force: “Too bad for the constable! You should have proceeded before he was president.” Courts have often said that no one has a vested right in the statute of limitations. Still, unless Vance’s investigation is allowed to proceed, Trump may never be brought to book for crimes in which he allegedly participated and for which his fixer-lawyer, Michael Cohen, was convicted and imprisoned.

If you support President Trump, by all means celebrate the grant of review, and prepare for a banner day if there is an eventual supreme court reversal of the lower federal courts. But do not celebrate the Constitution and the rule of law — because that would be a dark day for both. 

James D. Zirin, a retired partner of Sidley Austin, is the author of the recently published book, “Plaintiff in Chief — A Portrait of Donald Trump in 3,500 Lawsuits.” He is a former assistant United States attorney for the Southern District of New York.