No, Trump’s 7–2 Supreme Court Losses Are Not Actually “Wins” For Him
So forget about what many pundits are saying today; they’re being too clever by half
Yes, the Supreme Court made it very difficult for the American public to see Trump’s tax returns before the next election. And maybe, just maybe, there’s some giant revelation, or even small nugget in there that would ensure his demise. But unfortunately, we have no way of knowing that.
What we do know already, and what may be even more important about the decision at this particular point in time, to this particular President, is this:
The President looks weaker than he did yesterday.
That’s it. It’s that simple.
When the President fully expected the Supreme Court to make him look all-powerful.
And all this President cares about is how he looks. Most afraid of “falling on my ass”, as he recently put it. Well Trump just fell on his ass big time.
These decisions — to Trump — are all about his power; his unceasing emphasis on the personal gratification of “winning”. The carte blanche he expected was due to him by the court. And he didn’t get it. He didn’t win.
The case of Trump v. Vance (the Attorney General of New York), is the more clear cut of the two (although it does allow Trump to go back to a lower court and argue turning over records would interfere with his ability to do his job). Chief Justice John Roberts memorializes its place in history almost right at the top of his majority opinion, noting:
“This case involves — so far as we and the parties can tell — the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable.”
But the Supreme Court now says it can be enforced.
Writes Chief Justice John Roberts in his majority opinion:
“We…hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”
And that all legal actions involving the President aren’t automatically “harassment”, which Trump would like you to believe. (And a viewpoint with which his Attorney General Bill Barr often seems to agree, and is in fact a large part of what got him his job).
Heck, even “his guys”: Justices Gorsuch and Kavanaugh, whom the President always brags about putting on the court, ruled against him. Joining together in their own supporting opinion, which states:
“In our system of government, as this Court has often stated, no one is above the law. That principle applies, of course, to a President.”
Reading that back, we are kind of shocked at how shocked we are that the Supreme Court would find this to be a reasonable position. And also that the decision wasn’t 8–0.
So let’s see why Justice Thomas is dissenting:
“I agree with the majority that the President is not entitled to absolute immunity from issuance of the subpoena. But he may be entitled to relief against its enforcement.”
Justice Thomas wrote something else we found interesting in his dissent in the other case, the one involving Congress (which is a little confusing because the President, in that case, was not suing Congress, rather his own accountant and bank to block them from delivering the documents they have on him to Congress), saying:
“I would hold that Congress has no power to issue a legislative subpoena for private, nonofficial documents — whether they belong to the President or not. Congress may be able to obtain these documents as part of an investigation of the President, but to do so, it must proceed under the impeachment power.”
Because remember former White House counsel Don McGahn, whom Trump blocked from responding to a Congressional subpoena during its impeachment investigation?
The case involving Congress does give Trump and his lawyers a lot of wiggle room. But at the same time, it doesn’t give Trump what he was demanding. Which was unprecedented restrictions on the circumstances under which Congress could ask for stuff from the President. What Trump wanted, writes Chief Justice Roberts again:
“Would risk seriously impeding Congress in carrying out its responsibilities.”
The Court did offer protection to Presidents of any party from “undue interference” even in criminal investigations, under Article II of the Constitution, which Trump often refers to as the part of the Constitution that gives him “the right to do whatever I want”.
But the Court just said that’s not true. Not even close.
Hurtling the President into a hysterical (even for him) spiral, triggering this series of Tweets and a lot more!:
Now it’s our turn to maybe be too clever by half (or alternately, maybe not clever enough), but we believe the continued concealment of the tax returns may not be such a bad thing for now.
Here’s why: immediately tying up myriad committees in Congress, as well as the media; burying them under thousands and thousands of pages of intricate, mostly very boring minutiae of the President’s taxes, could backfire. Even if it does produce valuable and damning results. It would at very least allow Trump to spotlight his “witch hunt” and “I’m the victim” narratives as well as false equivalencies about Obama, which he’s very good at. (And yeah, he’s already doing that anyway, but lashing out at dignified Justices, 25% of whom he put on the court, is not quite the same thing as attacking a bunch of earnest Liberals.) And since Trump already presumably knows what’s in his hidden documents, and the people sifting through them won’t, he’d always be one step ahead.
We could very easily be wrong about that. But does anyone seriously want another pitched, partisan Capitol Hill battle about documents and pieces of paper right now? When there’s a lot of really real life and death stuff going on right in front of everyone’s eyes, out on the streets? All those papers swirling around could even make it even a little easier for the President to obscure the really bad job he’s done in terms of leadership of late.
So let his tax returns continue to sit locked up for a while longer, especially since the Supreme Court has seen to it that they’re no longer a point of leverage for the President. Instead, let the non-exposure of his tax returns become something that finally may begin to haunt the President. Which could easily happen by doing nothing. Even without knowing what’s in them.
This does on some level seem counter-intuitive to us. At the same time we know we’d react negatively to more endless hearings and tortured analysis of financial statements right now.
One last note: one thing that we found fascinating in Chief Justice Roberts’ majority opinion in the Trump v. Attorney General of New York case, is how much of it has to do with President Thomas Jefferson and Aaron Burr.
Like did you even know after he killed Alexander Hamilton, Aaron Burr tried to privately invade part of Mexico and make himself President, to the point at which Jefferson had to get involved? We won’t “spoil” it further. But here’s a link. Read it. That part starts on page 8.