Trump, the Court, and Subpoenas

May 12, 2020

Trump, the Court, and Subpoenas

trump court subpoenas

Mark Rubin

The U.S. Supreme Court heard three cases during two oral arguments today. Here’s the C-Span link.

Two cases involved subpoenas directed to Mazars (an accounting firm which provided services to Donald Trump and his entities) and Deutche Bank (purportedly, the only money center bank which still deals with the Trumps and their entities). The other case involves state law claims which a New York County (Manhattan) grand jury intends to investigate.

I have thoughts. Really, you say? A top 40% law student – TBT, 57th percentile, ranked just behind my law school roommate, with a practice which mostly involves elder law and real estate – intends to spout off on Con Law issues. Yes, actually!

The U.S. Supreme Court never should have accepted cert on these cases. Oral argument involved lots of clutched pearls, mostly from men: lawyers for the president and the government, and justices. Most notably for me, Justice Stephen Breyer worried about the import of a ruling in favor of Congress on future presidents.

Yo, Justice Breyer, lower courts exist to sort stuff out. For decades and likely longer, Congress has used it subpoena power to gather information. The Congress cases present no significant burden on the president, and give us no reason to decide, suddenly, that we need to question Congressional motives when it seeks information. And, if Congress advances bad motives, federal judges and the Circuits exist to resolve these matters.

Next up, there is the seeming unwillingness on the part of the Roberts Court to distinguish between entities and their owners. Those of us who practice law – representing clients, reading statutes every day, and solving problems – understand and appreciate the distinction between the corporation or LLC and its owners. Burwell v. Hobby Lobby, No. 13-354, exemplifies this failing. Recall that the Court allowed a corporation – and a tax-favored Subchapter S corporation at that – to adopt the views of its owners and avoid a statutory obligation. Wrong that was, and wrong it is that precious little, if anything, got said today about the fact that the New York County District Attorney seeks substantial amounts of information from Trump entities, as opposed to the president.

Always present in a situation like this one is the “the president will be overwhelmed” by subpoenas. Except … not. We have the most corrupt president any thinking person can identify, and lawsuits and subpoenas have interfered with his work as president not all. (If distractions matter for real, I have a simple solution: not future POTUS can have a Twitter handle.)

Then there is the matter of precedent. No, not the Nixon or Clinton cases. They matter for sure, but as precedents in a traditional sense. I am referring to the time-honored processes, as they relate to Congress and grand juries gathering facts. Congress, for sure, needs facts before it should legislate. Do other motives exist? Sure. And do other purposes exist? Absolutely, and if you doubt me, recall Senator Joe McCarthy (and his pit bull Roy Cohn, later our current president’s pit bull), and the lives they destroyed, in the name of trying to understand how Communists had infiltrated our government.

As a newbie lawyer I handled a very prominent case. We lost on summary judgment and lost on appeal. I was sure the Arizona Supreme Court would take the case, for it involved an event (and its aftermath), about which everyone was aware. Petition for Review. Denied. And properly so, for the case presented no issues the Court needed to decide.

I think the loser at the virtual U.S. Supreme Court, on May 12, 2020, as the U.S. Supreme Court. The two opinions in the three cases, however they get decided, will shed no new light on the issues the Court faced. As Chief Justice John Roberts noted early on, “it sounds like at the end of the day, this is just another case in which the courts are balancing competing interests.” With respect, Chief, if a case involves “balancing competing interests” on specific facts, what justifies the involvement of the U.S. Supreme Court.


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