Shortly after 6pm this evening Supreme Court Justice Justice Ruth Bader Ginsburg put a prior 2nd Circuit ruling on hold until next Friday, December 13, at 5 p.m.
President Trump went to the Supreme Court after the House Financial Services and Intelligence Committees issued subpoenas to Deutsche Bank and Capital One seeking President Trump’s tax records. In his request to the court [Read Here] Trump asked SCOTUS to block the subpoenas on the ground they go beyond the committees’ powers.
Justice Ginsburg’s order tonight gives the justices time to rule on Trump’s request for a longer stay of the lower court’s decision while he files a petition for review. Ginsburg ordered the House of Representatives to file a response to Trump’s request by 11 a.m. on Wednesday, December 11.
At their private SCOTUS conference next week, the justices are scheduled to consider President Trump’s original petition for review of a lower-court ruling that would require him to turn over tax records to the SDNY who are seeking them as part of a grand-jury investigation. The SCOTUS decision today, placing a hold on a similar House effort, essentially allows the court to receive arguments relating to the second request for tax records and contemplate the merit of both.
The first request to the Supreme Court resulted in them issuing a ruling maintaining the block against House Democrats receiving President Trump’s tax returns. The one paragraph order [pdf here] essentially maintained the stay and requested the Trump administration to file a formal request for review by the court. The Trump filing today is a response to that SCOTUS request:
The underlying House case has several defects.
Attorney Ristvan previously provided a good encapsulation of the problems for the House that explains why President Trump could likely win the case:
House Oversight is one of three committees that 26USC§6103(f) requires the IRS to turn over individual returns “upon request”.
They requested (PDJT taxes for 6 years 2013-2018) long before Pelosi announced her impeachment inquiry, way before the House vote on same, to which Pelosi said Sunday, (paraphrased) “We haven’t decided to impeach. We are only inquiring about it.”
The ‘upon request’ is not as absolute as it seems. The request must still be predicated on a legitimate legislative purpose. SCOTUS has held (I skip the rulings, since previously commented on here many months ago) that there are only two valid purposes, both constrained to legislative powers expressly granted by A1§8.
1. An inquiry into making, repealing, or amending an A1§8 law.
2. Oversight of executive administration of an existing law.
With respect to (1), a legitimate legislative purpose would be reviewing real estate tax law for possible changes. BUT then, the request should have come from Ways and Means (Neal) where tax laws originate. AND, it should have included requests for tax returns from other big real estate developers also. Singling out only PDJT is a fatal defect to this purpose.
With respect to (2), after Nixon/Agnew the tax code was amended to require a special IRS audit of annual POTUS and VPOTUS returns, with the results held in the National Archive. Reviewing those special audits by IRS would be a proper Oversight and Reform legislative purpose, BUT ONLY for 2017-2018 after PDJT was inaugurated. The earlier 4 years demanded are a fatal defect to this purpose.
Both these valid points were raised by President Trump and were already on their way to SCOTUS. Now the committee is trying to ‘cure’ these fatal request defects by claiming the returns are necessary for impeachment. This raises four new issues where PDJT can also win.
1. Impeachment is not a legislative purpose within A1§8.
2. Articles of Impeachment have historically been the the province of Judiciary, NOT Oversight.
3. The demand was made BEFORE the impeachment inquiry unofficially started and cannot be retrospectively cured.
4. No tax ‘high crimes of misdemeanors’ have even been alleged. Impeachment fishing expeditions are unconstitutional.
IMO this case has the potential to set a major constitutional precedent about POTUS harassment via political impeachment. The constitutional convention minutes and Federalist #65 both make it clear why ‘maladministration’ (the original third test after treason and bribery, and which WOULD allow for political impeachment) was replaced by ‘High Crimes and Misdemeanors’. The phrase was borrowed from prior British law, has a specific set of meanings, and DOES NOT allow political impeachment. (link)
The quest for President Trump’s financial records is essentially a legislative fishing expedition in an attempt to gain opposition research for their Democrat candidate in the 2020 election.
The Supreme Court has not yet ruled on any ancillary case that touches upon the validity of the unilaterally declared House impeachment process. The Supreme Court has not ruled on any case that touches the impeachment “inquiry”.
The issue at stake is whether the legislative branch can penetrate the constitutional firewall which exists within the separation of powers.
If the House loses the Tax case in SCOTUS (likely), and/or either HJC case in appeals or SCOTUS it will mean there was no constitutional foundation for the “impeachment inquiry” upon which they have built their original legal arguments.
♦The first case is the House Oversight Committee effort to gain President Trumps’ tax returns as part of their impeachment ‘inquiry’ and oversight. That case is currently on-hold (10-day stay) in the Supreme Court. Written briefs soon, arguments perhaps in early December? Outcome pending. There is a very strong probability Pelosi will lose this case because Oversight doesn’t have jurisdiction and the case began back in February.
Ginsburg placed a hold on the order on Friday, according to Reuters. The 2nd District Court of Appeals issued a ruling on Tuesday ordering Deutsche Bank and Capital One to turn over financial documents on Trump, members of his family, and his business.
Justice Ruth Bader Ginsburg put the 2nd Circuit’s ruling on hold until next Friday, December 13, at 5 p.m. Ginsburg’s order gives the justices time to rule on Trump’s request for a longer stay of the lower court’s decision while he files a petition for review. Ginsburg ordered the House of Representatives to file a response to Trump’s request by 11 a.m. on Wednesday, December 11. (link)
Probability of loss to Pelosi 90%.
♦The second case is the House Judiciary Committee (HJC) effort to gain the grand jury information from the Mueller investigation. The decision by DC Judge Beryl Howell was stayed by a three member DC Appellate court. Oral arguments were November 12th, the decision is pending. [Depending on outcome, the case
could will also go to SCOTUS]
[…] the appeals court in a brief order said it would not immediately release the documents “pending further order of the court.” The court also asked the House and the Justice Department for more briefings and set a Jan. 3 date for another hearing. (link)
Probability of SCOTUS 100%
♦The third case is the HJC effort to force the testimony of former White House legal counsel Don McGahn. Issue: subpoena validity. The HJC asked for an expedited ruling. Judge Ketanji Brown Jackson delivered her ruling November 25th.:
Federal District Court Judge Ketanji Brown Jackson said McGahn must appear before Congress but retains the ability to “invoke executive privilege where appropriate” during his appearance. The judge did not put her own ruling on hold, but the Trump administration will likely seek one to put the effect of her ruling on hold while it pursues an appeal. (link)
However, two days later Judge Brown-Jackson stayed her own ruling...
Judge Ketanji Brown Jackson, an Obama appointee on the district court in D.C., granted McGahn’s request for a temporary stay while she deliberates on whether to issue a lengthier one to allow him to appeal her decision.
Probability Appeal 100% – Probability SCOTUS 90%
Pelosi, Schiff, Nadler and Lawfare are now rushing toward a full House impeachment vote while simultaneously attempting to stall any judicial decision (Appeals or SCOTUS) that would undermine their manufactured impeachment authority.