Justices to take up battle over Trump financial documents

This afternoon the Supreme Court announced that it would wade into the fray over access to President Donald Trump’s financial records. The justices agreed to review three separate lower-court decisions that ruled against the president: Two of those decisions upheld subpoenas that would force the president’s accounting firm and lenders to turn over financial records that they have in their possession, while a third ordered the president’s accounting firm to provide prosecutors in New York City with his financial records, including his tax returns.

The subpoena to Trump’s accounting firm, Mazars, came from the House Committee on Oversight and Reform, while the subpoenas to Deutsche Bank and Capital One, two of Trump’s lenders, came from the House Financial Services and Intelligence Committees. The committees said that they wanted the records as part of their work, but Trump argued that the subpoenas do not serve a “legitimate legislative purpose,” as the Supreme Court’s cases require.

The subpoena from Manhattan district attorney Cyrus Vance also went to Mazars. As Steve Vladeck has previously reported for this blog, Vance is seeking several years’ worth of Trump’s tax returns as part of a state grand-jury investigation. After the lower courts rejected his efforts to quash the subpoena, Trump went to the Supreme Court, arguing that the subpoena violates the president’s absolute immunity from state criminal proceedings while he is in office.

In a brief unsigned order this afternoon, the justices announced that they would take up all three cases and hear oral argument in the court’s March argument session. The justices consolidated two of the cases, involving the congressional subpoenas, for one hour of argument. They also took the somewhat unusual step of granting review in the Deutsche Bank case without receiving a formal petition for review. Instead, the justices treated Trump’s request to put the decision of the U.S. Court of Appeals for the 2nd Circuit decision on hold, filed last week, as a petition for review, and they stayed the lower-court decision indefinitely.

With the announcement that they have granted review in McGirt v. Oklahoma, the justices will return to a question that they were apparently unable to resolve last term. In November 2018, the Supreme Court heard oral argument on a seemingly arcane issue with potentially broad implications: whether the land that was set up as a reservation in eastern Oklahoma for the Creek Nation in the early 19th century remains a reservation for purposes of a federal law that requires some major crimes committed by or against Indians on Indian reservations to be prosecuted as federal crimes. The question arose in the case of Patrick Murphy, who argued that the land was still a reservation and therefore Oklahoma did not have the power to try him for a murder he committed on that land in 1999, but a ruling in Murphy’s favor could also call into doubt the validity of many state prosecutions for major crimes in eastern Oklahoma for over a century.

After the oral argument, the justices asked Murphy and Oklahoma for additional briefing – a move that law professor Ronald Mann interpreted as a sign that the justices were “looking for creative ways to resolve the dispute” by determining whether there were any laws that would authorize Oklahoma to prosecute major crimes on the land even if the land had remained an Indian reservation. But the justices ended the term without deciding the case. Instead, they issued a brief order indicating that the case was “restored to the calendar for reargument,” although the case has not yet been given an argument date.

With Justice Neil Gorsuch recused from Murphy’s case (apparently because he participated in the case while still a judge on the U.S. Court of Appeals for the 10th Circuit), the justices may have decided that it would be better to start over with a full court. And so today the justices announced that they would take up a case that raises the same question as Murphy but that is an appeal from an Oklahoma appeals court, in which Gorsuch can participate.

In 2013, the Supreme Court ruled that the federal government cannot require recipients of funds to fight HIV and AIDS to have policies expressly opposing prostitution and sex trafficking. Today, in U.S. Agency for International Development v. Alliance for Open Society International, the Supreme Court agreed to decide whether the government can apply that policy to foreign affiliates of U.S.-based groups. Justice Elena Kagan is recused from the case.

More orders from today’s conference are expected on Monday at 9:30 a.m.

This post was originally published at Howe on the Court.