UPDATE Monday morning, 11/25/19: The Supreme Court took no action, among its regular orders list, on either of the cases involving President Trump’s tax returns. That does not rule out an order or orders at any time, later Monday or later in the week.
The historic, months-long constitutional battle growing out of official investigations of President Trump reaches a new level of intensity this week, with the prospect of a major ruling by a federal trial judge in the nation’s capital – and, maybe, important action by the Supreme Court, too. In each, the core issue is whether the President and his close aides can be compelled to supply potentially damaging information to congressional or state investigators.
By afternoon on Monday, U.S. District Judge Ketanji Brown Jackson, sitting in Washington, D.C., has promised, she will rule on the Trump Administration’s claim that former White House counsel Donald F. McGahn II has “absolute immunity” to a demand that he testify before Congress and that the immunity still applies even though McGahn is now a private citizen.
At a hearing in her courtroom on October 31, the judge was quite skeptical of the sweeping breadth of that immunity argument.
The House Judiciary Committee at first demanded that McGahn appear to answer questions about potential wrongdoing by President Trump during a special federal prosecutor’s investigation of Russian interference in the 2016 U.S. elections. More recently, the Committee has argued that it needs to hear from McGahn during the House inquiry into Trump’s potential impeachment.
Meanwhile, there are likely to be developments at the Supreme Court on attempts by Congress and by a state prosecutor in New York to obtain access to the President’s personal and business tax returns. Monday is the deadline for the President and New York district attorney Cyrus R. Vance, Jr., to complete the filings that will enable the Justices to decide soon – perhaps in a matter of days – whether they are going to rule on the prosecutor’s demand for eight years of Trump’s tax records.
Even while action is awaited in that case, the Justices may also act on a plea by the President himself to temporarily bar the House of Representatives’ Oversight Committee from gaining access to those same records. The legal filings are completed on an emergency plea by the Trump legal team to temporarily shield those records from congressional review, pending review by the Justices of the President’s coming appeal in that dispute.
The Justices will be issuing on Monday morning a series of orders on pending cases, and an order related to the Trump tax records dispute could be among those orders, or could be issued later in the day. After a brief public session Monday, the Court will be in a holiday recess for a week and it seems unlikely that the Justices would allow that much time to pass without any action, at least on the President’s emergency legal plea.
Despite the intensity of the constitutional fight between the President and the investigators in Congress and in New York State, all those involved in both controversies share the desire for the Supreme Court to rule in a final way during the current term of the Court, which is likely to run through late next June.
Although the Supreme Court through the years has issued a few major rulings on the scope of legal immunity for a president while still serving in office, it has never decided a case involving as expansive a claim of immunity as President Trump’s legal defenders have asserted. Although his legal team contends that history supports that claim, there has been no decision by the Supreme Court directly on it.
When Judge Brown Jackson issues her planned opinion in the McGahn case, she will be confronting that same immunity issue in the context of a former official who, while at the White House, had a close and continuing association with the President. McGahn, in fact, was perhaps the most important White House aide to testify in Special Counsel Robert Mueller’s Russian interference probe. While the House Judiciary Committee already has access to much of Mueller’s report, which spells out a lengthy file of evidence that President Trump sought to disrupt the Mueller probe, the committee still wants to question McGahn in person on the exact nature of the President’s alleged obstruction.
If Judge Brown Jackson were to rule against the claim of immunity for McGahn, she might not rule broadly on that claim but might decide it only so far as it is made to shield an official who has left the government entirely.
Any ruling against the claim, however, would be historic, and could pave the way – if such a ruling were to withstand an appeal by McGahn to higher courts – for forced testimony by other former White House aides who have been resisting congressional demands that they testify – such as former national security advisor John R. Bolton, whose name came up repeatedly during the recent House Intelligence Committee hearings on presidential impeachment.
Any decision by the judge accepting the immunity claim, in whole or in part, almost certainly would be appealed to higher courts by congressional investigators, and the basic issue seems sure to reach the Supreme Court in this or another case. Only the Justices can resolve its constitutionality in a final way.