What happens in the Trump tax return cases?

[I’m not Stu]

I listened to the argument. I’m inclined to think the Supreme Court either punts in both cases or punts in Mazars/Deutsche Bank and rules against Trump in Vance. Any ideas on the outcome?

[I’m not Stu]

SG Noel Francisco was arguing for a punt. Jay Sekulow was arguing for complete immunity and quash the subpoenas. What are the chances of Sekulow prevailing? Roberts and Kavanaugh seemed skeptical of absolute immunity.

[brucejoel99]

All of the conservative justices seem to think that the legislative purpose test is too broad, & as for Vance, they think everybody & their mother is gonna sue the President. I think the only reason that Trump won't win both cases is because, by simultaneously disallowing lawsuits from states & Congress, they'd effectively say that Trump is above the law, & they can't have that. So from what I'm gathering, the most likely outcome is looking like some kind of compromise (i.e. a convoluted Roberts opinion in one of the cases trying to save the Republic from an imperial presidency) in which some of Trump's claims will be upheld & others won't be. Even Kagan was moving towards that by the end of the argument. Technically, this would be the Court siding with the DOJ's argument, & would still be a loss of power for Congress, though U.S. v. Nixon, Clinton v. Jones, the travel ban case, & prior precedent regarding congressional subpoena power would seem to combine to form a very substantial hurdle that might push Roberts towards more expansive congressional authority, & because I just don't see how you can have cases saying individuals can subpoena & even depose the President but their congressional representatives can't, I don't think such a decision will drastically expand executive authority, but I doubt they'll give Congress all of the broad & increased powers that are being requested in this case. Such a compromise opinion would probably strike down Trump's claims of "immunity" on several fronts while still placing checks on how far Congress can go to seek & subpoena a President's records. Remember: these kind of compromise decisions are generally what Roberts prefers as part of his institutionalist bent anyway; he'll do whatever it takes to avoid seeming partisan, so I'm expecting neither side to fully get what they want.

The other option is that they punt it by saying that it's a political dispute & shouldn't be resolved by the Court, but that opens its own set of worms: there will be industries that'll be asked for documents, & they'll earn an enemy in the President by complying, & earn an enemy of their host state by not complying. Though since the House says they need Trump's financial info to review for possible legislation, I'd think it's possible for the Court to punt now so as to allow Trump to come back to the courts over a minor detail & help him stall until after the election, & then reject Trump's argument by a 6-3, 7-2, or even a unanimous decision after the election in order to avoid political exploitation of the material. That is to say that it's possible for them to both rule against the President while still concealing this info from the public until it's of no political consequence, with the House allowed to proceed with its review after the election.

[True Federalist (진정한 연방 주의자)]

There is nothing in the Constitution alone to support the idea of Presidential immunity, especially an immunity broader than Congress' own immunities under Article I Section 6.  Arguably, some degree of immunity, especially from Federal actions, could be granted under legislation, but it hasn't.

[Chancellor Tanterterg]

1) Vance is allowed to subpoena the documents he’s requested for the grand jury in a 6-3 decision with Roberts writing for the majority and Trump’s head explodes when Gorsuch votes with the liberal bloc on this instead of the pretextualist bloc (Thomas, Alito, and Kavanaugh).  

2) Either (A) the Court holds 5-4 that Congress cannot subpoena Presidential financial records or (B) the Court holds 5-4 (with a separate concurrence by Kagan, Ginsberg, and Sotomayor essentially arguing that these particular subpoenas would clearly pass such a test) that there is some sort of multi-prong test for determining whether congressional subpoenas for Presidential records are overly broad and kicks the can past the election by remanding the case for further review under said standard.  I think (2) is more likely, but Roberts is writing for the majority on this one either way.  

Then again, Roberts is hardly averse to pretextualism when it suits him, but I get the sense he cares a lot more about his legacy than whether Trump throws a Twitter tantrum.

[NewYorkExpress]

6-3 in favor of Trump on all cases. I think someone from the liberal wing is going to flip so that a narrow opinion that doesn't set a binding precedent (think Bush v. Gore only with taxes) occurs. That person will likely write the Majority Opinion too.

My best guess is that Justice would probably either be Breyer or Kagan.

The other scenario is a party-line 5-4 vote in favor of Trump, with either Thomas or Alito writing the Majority Opinion (and if Thomas isn't writing the Majority Opinion, he'll write a concurring opinion too.)

I can't see a scenario where Gorsuch or Kavanaugh switch sides...though I can see one where Roberts joins the liberal wing for the opinion, and writes the Majority Opinion.

[brucejoel99]

There is nothing in the Constitution alone to support the idea of Presidential immunity, especially an immunity broader than Congress' own immunities under Article I Section 6.  Arguably, some degree of immunity, especially from Federal actions, could be granted under legislation, but it hasn't.

Precisely, which is why all the talk of a limiting principle on the legislative purpose test is absolutely terrifying if the Court is indeed intent on going down that road. To do so would be arguably worse for the fate of our democracy than anything Trump has even done, & would plunge us into a constitutional crisis, which is why I sincerely hope that the probing Justices were just engaging in some curious inquisition during oral arguments. For the sake of our judicial ideals, these better be 9-0 rulings (though I'd still expect diverse concurrences, but any dissents would mark those dissenting Justices as willing to trample congressional protection against encroachment under separation-of-powers principles). If we get a ruling in favor of Trump, then the Roberts Court will have cast its own validity into peril, & it's for that reason that I hope & pray that they don't rule that way.

1) Vance is allowed to subpoena the documents he’s requested for the grand jury in a 6-3 decision with Roberts writing for the majority and Trump’s head explodes when Gorsuch votes with the liberal bloc on this instead of the pretextualist bloc (Thomas, Alito, and Kavanaugh).  

2) Either (A) the Court holds 5-4 that Congress cannot subpoena Presidential financial records or (B) the Court holds 5-4 (with a separate concurrence by Kagan, Ginsberg, and Sotomayor essentially arguing that these particular subpoenas would clearly pass such a test) that there is some sort of multi-prong test for determining whether congressional subpoenas for Presidential records are overly broad and kicks the can past the election by remanding the case for further review under said standard.  I think (2) is more likely, but Roberts is writing for the majority on this one.  

Then again, Roberts is hardly averse to pretextualism when it suits him, but I get the sense he cares a lot more about his legacy than whether Trump throws a Twitter tantrum.

Yeah, this is probably the most likely outcome on the basis of taking the oral arguments at face value, with the Court ruling that the President is given a heightened scrutiny when subpoenaed. That's not to say that Congress can't get Trump's tax records, but that they'd have to demonstrate a specific legislative purpose that isn't a case study for generally applicable laws & financial reform.

That's a good point about pretextualism, though. A good example would be the rational basis test being applied to the census question on citizenship: despite a rational basis being provided (& the Court agreeing that one was provided), evidence that the basis may have been pretextual was sufficient to rule against the administration. It'd stand to reason that, again, even if Congress has a rational basis (& wide latitude), the same level of scrutiny would be applied to determine whether that basis is indeed pretextual (in which case, the new standard would be "rational basis that survives pretextual scrutiny" or something like that: Congress has unfettered investigative power, but they don't have political harassment power). But even that would make for a super weird case. What would be a legal test for harassment? Why (or, better yet, "how") is SCOTUS reviewing through this lens? Even if they don't directly assess "harassment" (though of course that'd be the implication, with there needing to be a "legitimate purpose" in order to establish a "rational basis"), to decide as such would seemingly be a severe violation of the separation-of-powers principle, & amount to the Court inserting itself into the legislative process by granting itself advisory authority over legislation (since Congress hasn't actually enacted any relevant legislation yet), thereby subordinating the operation of Congress itself - rather than the legislation it enacts - to the judicial branch.

But honestly, though, it's just incredibly absurd (let alone concerning) that we're even talking about a limiting principle behind legislative oversight. Here's to hoping the Justices were merely bored from quarantine & wanted to ask people questions during the oral arguments.

6-3 in favor of Trump on all cases. I think someone from the liberal wing is going to flip so that a narrow opinion that doesn't set a binding precedent (think Bush v. Gore only with taxes) occurs. That person will likely write the Majority Opinion too.

My best guess is that Justice would probably either be Breyer or Kagan.

The other scenario is a party-line 5-4 vote in favor of Trump, with either Thomas or Alito writing the Majority Opinion (and if Thomas isn't writing the Majority Opinion, he'll write a concurring opinion too.)

I can't see a scenario where Gorsuch or Kavanaugh switch sides...though I can see one where Roberts joins the liberal wing for the opinion, and writes the Majority Opinion.

I get the skepticism, though I'd point out that there are many reasons to support the (legal) arguments for each conservative Justice ruling against Trump (based on their prior opinions). I don't know how much confidence I'd place in my own predictions, but if I had to apply probability of ruling against Trump on the House cases: 99% Sotomayor & RGB, 95% Breyer & Kagan, 80% Roberts, 70% Gorsuch, 50% Kavanaugh & Thomas, & 30% Alito.

But who knows? As I made clear above: "For the sake of our judicial ideals, these better be 9-0 rulings (though I'd still expect diverse concurrences, but any dissents would mark those dissenting Justices as willing to trample congressional protection against encroachment under separation-of-powers principles). If we get a ruling in favor of Trump, then the Roberts Court will have cast its own validity into peril, & it's for that reason that I hope & pray that they don't rule that way."

[Chancellor Tanterterg]

1) Vance is allowed to subpoena the documents he’s requested for the grand jury in a 6-3 decision with Roberts writing for the majority and Trump’s head explodes when Gorsuch votes with the liberal bloc on this instead of the pretextualist bloc (Thomas, Alito, and Kavanaugh).  

2) Either (A) the Court holds 5-4 that Congress cannot subpoena Presidential financial records or (B) the Court holds 5-4 (with a separate concurrence by Kagan, Ginsberg, and Sotomayor essentially arguing that these particular subpoenas would clearly pass such a test) that there is some sort of multi-prong test for determining whether congressional subpoenas for Presidential records are overly broad and kicks the can past the election by remanding the case for further review under said standard.  I think (2) is more likely, but Roberts is writing for the majority on this one either way.  

Then again, Roberts is hardly averse to pretextualism when it suits him, but I get the sense he cares a lot more about his legacy than whether Trump throws a Twitter tantrum.

I now accept my accolades