By Noah Feldman | Bloomberg,
The Supreme Court’s stay of a congressional demand for Donald Trump’s taxes is almost certainly the final nail in the coffin of Democrats’ efforts to investigate the former president’s finances. If — as is widely expected — Republicans take control of the House in next week’s midterm election, the demand could be withdrawn before the documents are handed over. The court is likely to rule against Trump before the new Congress takes office on Jan. 3, 2023, but he will realistically be able to stonewall until then — and avoid meaningful consequences.
As a reminder, the House Ways and Means Committee has been trying for three years to get Trump’s tax records from the Internal Revenue Service. Trump says this is a thinly veiled pretext to get the returns and make them public. The committee says it needs the returns to evaluate the rigor of a Watergate-era policy called the Presidential Audit Program, implemented after both President Richard Nixon and Vice President Spiro Agnew were caught in scandals about evading taxes.
There’s plenty of reason to be angry that this process has taken so long. But the problem is not with the Supreme Court. It’s that a federal district judge appointed by Trump, Trevor N. McFadden, declined to issue a decision in the case for more than two years before ruling (correctly) that the House committee was entitled to see the tax returns under a federal law that gives it access. The US Court of Appeals for the D.C. Circuit has since affirmed the district court’s ruling.
Going to the Supreme Court is Trump’s last-ditch effort to get a different outcome. He almost certainly won’t get that; Congress has latitude to define its own legitimate legislative purposes. What he’s getting, rather, is the extra little bit of time he needs to run out the clock. Without the intervention on Monday of Chief Justice John Roberts, the committee could have gotten the documents as early as Thursday. Now, with Roberts requesting additional information from the House committee, who knows.
It’s tempting to wish that the court would reject Trump’s request for a final stay out of hand, without asking for extra information. That would certainly be within the court’s power. Yet no matter how clear the legal issue — and it is pretty clear here — it is in general a good idea for the court to listen before it rules on matters like a former president’s records.
In all likelihood, a Republican Congress will soon be investigating President Joe Biden, his son Hunter, and no doubt other Democratic officials. You can expect legal resistance from the Biden administration; that’s just the way the game is played nowadays. And when that is happening, we will want the courts to afford Biden the procedural protection of getting an opportunity to be heard.
Put simply, rushing to reject claims out of hand is bad practice because partisans on both sides will try to use the machinery of Congress to gain access to all sorts of material and information. It’s the job of the courts to sort out which claims are defensible and which are not — like many of Trump’s. But that sorting process requires considering the facts and the law.
The judicial branch has a lot of discretion in how quickly it reaches its conclusions. No one could have hastened Judge McFadden’s initial ruling, for example; the most the House committee could have done is to complain, loudly and publicly, to pressure the judge to hurry up. That isn’t much, to be sure. But it’s pretty much all that any litigant can do when waiting for a court to rule.
Finally, let’s not forget who is ultimately to blame in this situation: the Republican party, which will shamelessly refuse to stand up to Trump when it retakes the House; and the American people, who (it would appear) are poised to give the House to the party that has increasingly devoted itself to denying the results of elections it loses.
Constitutional democracy can only survive when the public manifests a minimum degree of political virtue. If we elect representatives who don’t want to hold our government officials to account for their behavior, that’s on us.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
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