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May 12 2020

How Deep Is The Rot?

Arguments today in Supreme Court about whether Congress gets Executive Branch information or not. Bad if decided the wrong way but it would undo 200+ years of Black Letter Law. These particular cases have uniformly resulted in practically unanimous findings in favor of Congress at both the District and Appeals level.

I would hope Roberts has at least some Constitutional loyalty but I’m not holding my breath.

Trump’s lawyers just made appalling arguments to the Supreme Court
By Paul Waldman, Washington Post
May 12, 2020

When Donald Trump ran for president and claimed he’d release his tax returns as soon as the IRS was done auditing them, it was an obvious lie. Since then, he has taken extraordinary steps to conceal what every president and party nominee in almost half a century has gladly offered to the public.

But his desperate attempts to keep the public from understanding his finances may finally be reaching their end — though how long it will take to actually see the documents, or if we will at all, is far from clear.

On Tuesday, the Supreme Court heard arguments in three separate lawsuits Trump has filed to stop officials from seeing those returns. The first two concern congressional subpoenas given to Mazars (his accounting firm) and Deutsche Bank (his bank). The third concerns an investigation by the district attorney of Manhattan.

It was hard to tell how the justices might rule. But what the arguments did reveal is the almost limitless scope of immunity he seeks. Trump believes he should be excused not just from congressional oversight, not just from criminal investigation, not just from questioning by the press, but even from politics itself.

It’s almost impossible to overstate how appalling the arguments by Trump’s lawyers have been. They have claimed kingly powers for the president — that while he is in office he can’t be prosecuted or even investigated. That, they say, applies to both Congress and prosecutors.

In the lower court rulings as these cases (and others in which Trump has made similar sweeping claims of immunity) make their way up to the Supreme Court, Trump hasn’t
just lost. Again and again, judges expressed shock and even outrage at the audacity of his claims before rejecting them out of hand.

Consider the first two cases the Supreme Court heard together, the ones involving congressional subpoenas for his tax returns. The position Trump’s lawyers have taken is essentially that Congress didn’t have a good enough reason to exercise its subpoena power, and therefore the subpoenas are invalid — even though they’re directed at outside companies.

Again and again before the high court, Trump’s lawyers used the word “harassment” to describe Congress’s requests, claiming they had no legitimate legislative purpose. That’s despite the fact that the House explicitly cited their legislative purpose: They need to know what kinds of conflicts of interest Trump has to see if the country’s ethics laws need to be strengthened, not to mention figuring out whether legislation ought to be passed requiring presidents to release their tax returns.

But no, Trump’s lawyers said. That’s not good enough, because what they’re really doing is trying to harass him. It’s just political, and because he’s president, he can shield his personal records from their view.

As Justice Elena Kagan noted, Trump would “essentially make it impossible for Congress to perform oversight and carry out its functions where the presidency is concerned.”

Not only in these cases but in other instances — as when Trump refused to comply with subpoenas during impeachment, or when he refused to allow members of his coronavirus task force to testify to the House because it’s “a bunch of Trump-haters” — Trump has claimed a kind of immunity from politics that no other president in history has been granted.

Congress shouldn’t be allowed to carry out its functions, Trump believes, if he decides they have political motives for doing so. Are they trying to hurt me in my reelection, or embarrass me, or gain some kind of advantage? If I decide they are, then I can shut them down.

But of course, Congress always has political motives. Democrats have political motives in seeking his tax returns just like Republicans had political motives in mounting eight separate investigations of Benghazi. Politics infuses everything. Sometimes it’s more important and sometimes less, but it’s always present. The idea that a political motive invalidates Congress’s right to issue subpoenas is positively bonkers.

But we see this again and again: Any of the unpleasant things a president has to deal with — congressional oversight, demands for transparency, critical questioning by the news media — are treated by Trump not as inconveniences but as fundamentally illegitimate.

It was hard to tell how these cases will turn out. Conservative justices asked skeptical questions of Trump’s lawyers, liberal justices asked skeptical questions of Democratic lawyers, and Chief Justice John G. Roberts Jr. gave few hints about his opinion.

But it’s important to understand that even if the court rules against him and his tax returns are turned over, it isn’t as though the next day we’ll all finally learn what Trump has worked so hard to hide for all these years. Trump and his shady accountants have constructed his financial affairs to be as opaque and confusing as possible so that even the IRS won’t have the resources to unravel them.

The Trump Organization is not a company in the way we ordinarily think of them; it’s an amalgam of about 500 separate limited liability corporations. So if there’s a line on the return saying Trump got $5 million from Nothing To See Here Partners LLC, knowing that is only the starting point. For each one of them you’d have to figure out who’s involved and where the money comes from before you could even start to understand what kinds of malfeasance he was engaged in, who he’s in bed with or how he might be compromised.

No single news organization could do it alone. It’s going to require a massive crowdsourced effort. But at this point it’s far from certain we’ll ever see those returns. Trump is counting on five conservative justices to give him the immunity he believes he deserves, and they might do so.

But there’s one thing Trump can’t claim immunity from: the voters.

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