This story concerns the the consolidated Deutsche Bank and Mazars cases which are set for oral arguments before SCOTUS on May 12.
In essence, the two cases concern the constitutional and statutory authority of US House committees to issue subpoenas demanding the financial records, including tax returns, of Trump and several of his business entities. For a thorough overview of the arguments for both sides, I recommend reading VClib’s well-researched Trump and his Tax Returns at the SCOTUS.
It was after reading VClib’s excellent piece that I came across the news at SCOTUSblog that on April 27 this year, SCOTUS issued this supplemental order:
The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court's adjudication of these cases. The briefs, not to exceed 15 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, May 8, 2020.
I had no idea what this meant so I turned to the Opening Arguments podcast with Andrew Torrez and Thomas Smith for a layman-friendly explanation. It was an eye-opener and the ramifications are not pretty.
These two points are crucial to understanding why this supplemental order is pivotal:
- the political and justiciability question is a pro-Trump argument (VClib covers this argument in in his story)
- yet Trump’s lawyer failed to include this argument in the 65-page brief he presented to SCOTUS.
Instead he offered up what Opening Arguments legal expert Andrew Torrez describes as:
This is a brief written by Jay Sekulow, the dumbest lawyer in America, so I’m not surprised that the brief is terrible and the arguments are terrible, but even for Jay Sekulow, this brief is terrible and these arguments are awful. And the arguments are that Congress does not have the authority to issue subpoenas requesting the President’s tax returns and, in the alternative that even if they do, these particular subpoenas do not have a legitimate legislative purpose.
It’s a 65-page brief making those two arguments. You could refute those two arguments in a page and a half because they are stupid and terrible and wrong.
Aside: It’s worth it to listen to podcast OA383 (May 5) just to hear this.
Torrez adds that Sekulow’s arguments are so bad that he was confident they would “shame Justice Roberts enough that we would get at least a 5-4 order requiring these two private entities to turn over Trump’s tax returns to Congress.”
That was before Torrez saw the supplemental order buried on page 7 of the “Minute Orders in Pending Cases.”
He explains what this order is about.
I want to tell you what this is. This is the conservative howler monkey* contingent at the Supreme Court looking at these briefs and going “Holy clown horn**, even I can’t vote for this. This is so bad and so stupid that it does not pass the Brett Kavanaugh test. It does not pass the Sam Alito test.
This is a serious problem for the Supreme Court right-wingers who need not only to protect Trump and his various business entities but also — and more urgently — to protect those with whom Trump does business, specifically the mob. (Who do you think paid off Brett Kavanaugh’s debts?) They needed Sekulow to offer at least one plausible argument to justify them ruling in his favor.
We may never know who came up with the justiciability argument and when, but there are four dates in two months — April and August 2019 — which have a bearing on its emergence now.
The first is the starting point: April 15, 2019. This is when the Intelligence and Financial Services Committees jointly issued subpoenas to Deutsche Bank and Capital One, demanding they turn over Trump’s financial records. Two weeks later on April 29, Trump sued to block both subpoenas. It was at that point that the Supremes had to know that the case would eventually come to them, probably before the end of the year.
Unlike the two dates in April, the two events in August were seemingly unconnected at the time. On August 23, a three-judge panel from the U.S. Court of Appeals for the Second Circuit heard oral arguments in the Deutsche Bank case. If the right-wing justices listened to the audio, it was likely they felt some trepidation given how poorly the Trump side was handling it.
Three days later on August 26, SCOTUS delivered an unexpected finding when they ruled 5-4 that gerrymandering was a non-justiciable political question. Andrew Torrez observed:
The Supreme Court greatly expanded the non-justiciability doctrine on political questions to include gerrymandering which required John Roberts to sign onto an opinion that Sam Alito wrote with a straight face that said the solution to gerrymandered electoral districts that deprive you of your vote, is to vote. It’s astonishing. It will go down as one of the worst opinions.
To reiterate, these two events seemingly had no connection — until now. In 65 pages, Jay Sekulow failed to give the right-wing justices an argument they could support. Worse still, the House Democrats’ case is particularly strong. Therefore, in order to hand Sekulow the only straw worth clutching, the right-wing justices decided to provide him with an argument via a supplemental order.
As Andrew Torrez put it in his inimitable style:
This is the conservative wing of the Court going, “Hey you didn’t argue X but we’d like you to have argued X. And now, will you argue X for us.”
It is absolutely throwing them a life preserver saying, “Hey we’d like to rule that this is non-justiciable so write that up so then we can say that question was presented to us, even though you did not present that question to us.”
This is a nakedly partisan move by SCOTUS Justices to advantage one side over another in a case on their docket. That this is appalling and profoundly unethical is an understatement. Can it get any worse? Yes it can.
Andrew Torrez:
… and let me make a very very simple and straightforward prediction. If Donald Trump is re-elected, he will win a non-justiciability case. If Donald Trump is not re-elected, he will lose 5 to 4 and Roberts will be the swing vote — and he will not cast his decision until after the November election.
I’ll make a further layman’s prediction: if SCOTUS rules before the election, Trump will win a non-justiciability case.
It is not an argument that was there; it is an argument that the right wing of the Supreme Court has crafted to give themselves cover to intervene to protect this president in the event that he wins re-election.
If Andrew is right — and this seems the only plausible explanation for SCOTUS to order this supplemental briefing — it will be because the right wing contingent gamed the system, thereby violating the good behaviour clause of Article III, Section 1: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.”
And violation of that clause is grounds for impeachment.
*an explanation for Andrew’s use of “howler monkey”
**an explanation for Andrew’s use of “clown horn”