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THE FORECAST

Trump’s executive power grab continues in Supreme Court financial records cases

SCOTUS on a rainy day.
Ephrat Livni
Cloudy weather ahead for the US Supreme Court.
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DC

The heavens must be weeping in the aftermath of US president Donald Trump’s impeachment trial if Mark Twain, 19th century congressional correspondent, was right that the weather in Washington, DC is inextricably linked to politics.

It’s rainy, windy, and cold today, and the president has been feeling stormy of late, finally unleashing the rage he feels for Democrats and their investigations that he so ably contained during the triumphant State of the Union address, given on the eve of his acquittal.

He spent Thursday gloating, with the administration’s e-mailed “photo of the day” boasting the president waving a copy of the Washington Post with the headline, “Trump acquitted.” That he should rely on a publication he has so berated to mark his triumph isn’t surprising—throughout the impeachment proceedings, Trump’s defense team relied on the “fake news media” the president disdains to make their case, for example, citing the New Yorker and New York Times a laughable amount, so much so real MAGA fans might become suspicious.

In person, the president berated his prosecutors, House Democrats, using his platform at the National Prayer Breakfast—meant to be a moment of peace and spiritual harmony—to assail his political foes, saying, “It was corrupt. It was dirty cops. It was leakers and liars and this should never ever happen to another president, ever. I don’t know that other presidents would have been able to take it.”

If there’s one thing the administration’s lawyers have excelled at recently it is painting the president as a marginalized minority deprived of rights. However, future chiefs have little to fear if what they seek is more power and fewer constraints—an executive power grab—as the administration is actively, and so far pretty successfully, promoting an expansive view of the president’s powers in every branch of government. Team Trump is still on the case.

Having defeated attempts to subpoena documents and witnesses at the Senate impeachment trial with the unflinching aid of majority leader Mitch McConnell, they turn now to the high court for more of the same. The war over the president’s records continues and we may not know until late June how these battles for his financials will resolve.

Fight the power?

This week, the Department of Justice filed briefs in cases that will be heard in consolidated oral arguments at the Supreme Court next month. One case arises from a New York grand jury investigation into alleged hush-money payoffs made by former Trump fixer, Michael Cohen, to adult film star Stormy Daniels and Playboy model Karen McDougal before the 2016 elections. Subpoenas were issued to Trump’s accounting firm Mazars USA. The others stem from congressional ethics committee investigations and records requests to banks and institutions that did business with Trump’s companies.

The president wan’t subpoenaed personally but intervened in the matters, and the institutions that have the records say they will release them if so ordered by the court. In December, justice Ruth Bader Ginsburg granted the administration’s request for stays pending high court review. The order wasn’t a substantive affirmation of the president’s legal position, and the precedent doesn’t support Trump’s expansive view of executive power as articulated in his high court filings.

During the impeachment inquiry and trial, and in their high court filings, Trump’s lawyers continually cite the 1974 case Unites States v. Nixon, which states that the justices do not “proceed against the president as against an ordinary individual,” and extends him the “high degree of respect due the President of the United States.” But Richard Nixon quit the presidency after the Supreme Court’s ruling and the case has been cited by conservative justices as proof no one is above the law. That matter arose from a special prosecutor’s grand jury investigation into the Watergate scandal and the president was ordered to turn over damning recordings. Nixon resigned before a Senate impeachment trial could even begin.

Similarly, In Clinton v. Jones in 1997, Bill Clinton was subpoenaed for a federal civil suit. The high court again ruled that presidents were not immune to all such requests, and Clinton had to face the litigation.

Nonetheless, the Justice Department says the requests for presidential records, whether from local courts or congressional committees, are unconstitutional and threaten an executive’s ability to operate as president. They’re not just worried about Trump but all commanders-in-chief to come, arguing that the Nixon matter was distinct because it arose from a legitimate federal investigation and not a local political attack like the one now motivating New York prosecutor Cyrus Vance, who subpoenaed Trump’s taxes. Likewise, the congressional committees are overreaching here, according to the Justice Department, because they are intent on harassing the president, and not sincerely concerned about governmental ethics rules, which are within their purview.

Winter is coming for spring

Chief justice John Roberts has had much cause to think of the president while presiding over his nearly three-week impeachment trial. By Tuesday evening, listening to State of the Union in the House, he seemed exhausted by the president.

The recent political proceedings had clearly tested his patience. However, Roberts did end the impeachment graciously the next day, thanking senators for supporting him while he executed his “ill-defined duties.” He invited those who wanted to “hear an argument or escape an argument” across the street to his court, where there is order.

“I look forward to seeing you again under happier circumstances,” Roberts said, concluding the historic third-ever presidential impeachment trial. But with more Trump litigation ahead of him, and his legacy becoming ever more intertwined with that of this president—who Roberts may not entirely approve of if the clues he’s left are any indication—the chief justice has reason to fear more storms and struggle ahead.

If he steers the justices to act as a check on presidential power, perhaps the last remaining check in view of the Senate’s submission, he’ll face the wrath of the tweeter-in-chief and his supporters. If he doesn’t, Roberts and his conservative majority court will be remembered in history as Trump puppets. Either way, the forecast in Washington is winter at least through the spring.

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