US President Donald Trump. Picture: SIPA/BLOOMBERG/OLIVER CONTRERAS
US President Donald Trump. Picture: SIPA/BLOOMBERG/OLIVER CONTRERAS

Washington — The US supreme court takes up the most politically charged case of the year on Tuesday — President Donald Trump’s refusal to turn over his tax returns and financial records to Congress and a New York prosecutor, a case that may define the limits of presidential immunity.

The court’s nine justices, confined at home by the novel coronavirus pandemic, will question lawyers for both sides at 2pm GMT by phone in a highly anticipated session to be broadcast live.

The court’s ruling, expected before the end of June, will allow the justices to render a decision before the November 3 presidential election in which Trump is seeking a second term in office.

The former real estate magnate, who used his fortune as an argument in his 2016 election campaign, is the first president since Richard Nixon in the 1970s to refuse to release his tax returns — prompting speculation about his true worth and his possible financial entanglements.

Beyond Trump’s case, the court’s decision will also have profound long-term implications for the balance of powers in the US.

The president’s lawyers maintain that during his time in office he effectively has complete legal immunity, which is necessary for him to focus on his work without being investigated by lawyers or members of Congress.

Several congressional committees and a Manhattan lawyer have issued subpoenas to Mazars, Trump’s longtime accounting firm, as well as to Deutsche Bank and Capital One bank demanding the billionaire’s financial records for 2011-2018.

Trump immediately sued to block the release of the documents.

‘A terrible result’

Since he lost his argument in the lower courts, Trump has turned to the nation’s highest legal body. With two conservative Trump appointees on the nine-justice panel, the court has taken a clear turn to the right.

By agreeing to hear the case, the court seems willing to change the prior legal decisions that could influence the firms’ decision to surrender the president’s records.

The justices will devote the first hour of Tuesday’s oral arguments to the Democrat-led injunctions issued by three House committees. In a surprise move in late April, the justices asked the parties to file supplemental briefs on the political nature of the case, indicating that they might be willing to step aside.

If the justices conclude that the issue is political in nature and not legal, they could determine that the courts were wrong to interfere. This would invalidate the previous rulings without ruling in Trump’s favour. As a result, the three financial institutions would be free to send the documents to Congress — or to refuse.

This could be viewed as a “compromise”, but it would be “a terrible result for the separation of powers”, wrote law professor Stephen Vladeck in an essay. “Such a ruling would leave Congress with no mechanism for enforcing its subpoenas beyond its own coercive powers.”

Getting Stormy

In the second phase of Tuesday’s session, the justices will take up the case of Manhattan prosecutor Cyrus Vance.

Vance, a Democrat, submitted a request to Mazars for Trump’s financial documents as part of an investigation into payments to porn actress Stormy Daniels to buy her silence about an alleged affair with the billionaire.

The payments, which did not appear in the president’s campaign accounts, could be a violation of New York’s campaign finance laws.

Trump’s attorneys argue that a president enjoys total immunity as long as he is in the White House. One Trump lawyer even argued before an appeals court that while in office Trump could shoot someone dead on New York’s Fifth Avenue and face no legal penalty.

Multiple legal experts, including former justice department officials, have written to the supreme court to highlight that a sitting president cannot be charged in the performance of his duties, but that does not preclude investigations.

The top court itself required then-president Nixon to turn over secret White House recordings to the special prosecutor investigating the Watergate scandal.

In the 1990s, the court also allowed a sexual harassment civil lawsuit to be filed against then-president Bill Clinton.

AFP