Supreme Court Says Trump Not 'Immune' From Records Release, But Hedges On House Case

Speaker 1: 00:00 The Supreme court has rejected Trump administration arguments to block the release of his tax returns, but it is still unlikely that voters will see those documents. Anytime soon, the high court sent both cases, one regarding congressional subpoenas for the tax returns and the other, a subpoena from a New York district attorney back to lower courts for further litigation. But there are many interesting aspects to these rulings, including who wrote them, who agreed and the constitutional principles they affirm. Plus on this last day of a Corona virus, delayed Supreme court term, the justices also decreed that half of Oklahoma is a native American reservation. Joining me as Glen Smith, a Supreme court expert, and professor of constitutional law at California Western school of law and Glenn. Welcome. Thank you very much. Now, can you give us some quick background on the cases Trump V vans and Trump V May's ours? Speaker 2: 00:58 Yes. They're both cases where for a state criminal investigation, by a grand jury, in the case of advanced case and three congressional committees, in the case of the [inaudible] case, they're both efforts to get the president's tax returns and other personal financial information. That's in the hands of third parties. And in both cases, the administration imposed a very muscular argument of absolute presidential immunity or very strong presidential protection. And in Vance, they were completely routed and it was kind of a mixed decision in the, in the congressional cases. Speaker 1: 01:37 So it was that immunity argument that made by Trump and his lawyers in both cases that had many people concerned about the expanding power of the presidency. What exactly was that assertion in the New York case? Trump V Vance, Speaker 2: 01:53 Oh, in the New York case, first of all, they said that just no president can have his records personal or otherwise subpoenaed while he's in office. So it was a across the board, uh, the court called it categorical argument that the president is uniquely immune from state grand jury proceedings. And the court rejected that saying that was inconsistent with 200 years of, of law. They also said in the alternative that, okay, even if the president is not categorically excluded, a higher standard should be used, we should borrow from the Nixon tapes case of Watergate and borrow the standard that requires a very specific showing of need. And the court rejected that as well. Speaker 1: 02:33 Was there a similar claim made by the president about the congressional subpoena? Speaker 2: 02:37 There were, there were similar, they're not weren't identical, but similarly, the president claimed that because of his unique status, uh, that his personal records just weren't available at all to the Congress. Only, only justice Thomas went for that argument, but they also argued that the precedent, you know, given that the Congress is often in the hands of enemies of the president, or at least let's say rivals that it would subject the president, uh, harassment and would distract him from his duties and stigmatize him in the eyes of other world leaders, et cetera. So they made similar sort of institutional arguments that the institution of the presidency deserves a special protection against congressional subpoenas. Speaker 1: 03:24 What happens with both cases now? Speaker 2: 03:27 Well, they both, as you said, go back to court. In the case of the Vance case, the court has cleared away the administration extra arguments given that Trump was president, but the court left him in the posture of any other recipient of a subpoena who can make claims if the subpoena is too broad or that it invades his privacy or those kinds of things. So the lower courts dealing with the grand jury subpoena will I'm sure hear a whole bunch of arguments from president Trump's lawyers that he like any other subpoena recipient is having his rights interfered with. In the case of the challenge from the congressional committees, it goes back to the lower courts in DC and in New York. Basically what the court did in the congressional case is say, the administration's argument goes too far, but the house, his argument doesn't protect the president enough. So we're sending this back to the lower courts to consider four criteria that they have come up with in this case. So bottom line, as you said, nobody's going to see any tax returns before November barring an incredibly unpredictable fast trip through the courts. Speaker 1: 04:42 Both of these opinions were voted seven to two with chief justice, John Roberts writing the decision and the liberal justices joined with Kavanaugh and Gorsuch. Now is all or any of that surprising? Speaker 2: 04:56 Well, I was afraid that the court would not show its finest colors. Uh, at this point I thought that justice Roberts probably would be a fifth vote to be modulating and moderate on this, but I didn't know about Kevin on Gorsuch. So it's surprising in one sense, it's not surprising in another, it's very important for the court when it gets involved, especially in a big fight between the president and the Congress, the two big elected institutions that the court is the third branch of it's very important that the court speak, I think, with as unified a voice as it can get. So I'm not surprised that the court seems to have tried mightily here to speak with a greater consensus Speaker 1: 05:42 Is the most important aspect of these cases that they have seemed to affirm the separation of powers. Speaker 2: 05:49 Yes, not only do they affirm the separation of powers, but I think they affirmed that the president of nine States is not above the law. As, uh, as the court specifically said in one of the, in one of the majority opinions, that's a really important theme now to send, not only for this president, but any president to realize that you know, that the normal rules that govern how you're expected to participate in state court proceedings or how you're expected to interact with the coordinate brands of the Congress, uh, apply. And some of the administration arguments went very far, uh, away from that principle. And I'm, so I'm really glad that the court brought us back to that. Speaker 1: 06:33 Now, one last word about this rather surprising term, uh, the Supreme court has been delayed because of the coronavirus pandemic. That's why we're getting decisions in July. They came down with a decision in McGirt V Oklahoma. Now this case was brought by a man convicted of rape, but he claimed his trial in state court was illegal because the offense happened on tribal land and he should have been tried in federal court. What did the state and federal government claim, and what did the Supreme court decide? Speaker 2: 07:07 Well, both the state and the federal government claimed that in fact, that he was not on tribal land or that the claim to tribal autonomy was questionable in light of a series of congressional statutes and actions. So they basically said this wasn't really tribal land. Therefore the defendant could be tried and convicted, uh, under Oklahoma state law, uh, justice Gorsuch, writing an opinion that again, may surprise people that think Gorsuch is this always a conservative, et cetera. And what's he doing aligning with liberals. But I think what justice Gorsuch did here is what he also did in the title seven gay lesbian, transgender case is he said, I need really strong statutory evidence to show that Congress wanted to undermine the tribal claim. And I don't have that here. Speaker 1: 07:54 And so where does this leave, Oklahoma Speaker 2: 07:57 Where this leaves Oklahoma is that the court highest court in the land has emphasized that the original grant of tribal land is valid and continues. I'm unfortunately not enough of an expert in Indian law. I know what the implications of that are in terms of state versus Indian law, but basically this leaves the tribes with their original broad grant of land rights compared to the shrunken claim that the government tried to achieve. Speaker 1: 08:28 I've been speaking with Glen Smith professor of constitutional law at California, Western school of law. And Glen, thank you so much. Speaker 2: 08:36 You're very welcome. Thank you for your interest.