The Supreme Court on Monday rejected a request by House of Representatives committees to put into effect immediately the Court’s new ruling allowing the panels to demand access to President Trump’s private financial records. The effect will be to slow down by about two weeks the committees’ move to start a process in a lower court to enforce those subpoenas.
The committees have said that, the longer the court process stretches out, the greater the chance that this year’s congressional session will run out and that would wipe out the subpoenas, forcing the committees to begin all over again in January. (Congress probably will conclude the current session in late December; the Congress that has been elected on November 3 will assemble on January 3.)
The Court, with only Justice Sonia Sotomayor noting a dissent, did not provide an explanation for refusing to expedite the order to implement its July 9 ruling. Under the Court’s ordinary timetable, the order to put that decision into effect would come 25 days after July 9 – that is, on August 3.
With federal courts probably following limited calendars in August, the House panels may have difficulty getting the court processes expedited, clearly reducing the prospect that decisions could be made and any records turned over before the election.
Last week, the Court took a different approach in a case in which a New York State prosecutor is seeking records from Trump and his businesses for possible use in a criminal case under state law. At the request of the prosecutor, the Court issued its implementing order “forthwith” on Friday. (See the post just below this one.)
The circumstances differed in one respect: President Trump did not oppose immediate release of the order in that case, but did so in the congressional subpoenas cases.
That may have been enough to support treating the congressional demands as less compelling in time. There might also be these other rationales for the denial:
* The Court may have taken the President’s advice that the time before the order is issued could be used for negotiations between the White House and the committees to see whether they could work out a compromise, making the subpoenas unnecessary. In its July 9 ruling, the Court made a point of noting that, always before, the two branches had worked out such document disputes without taking their fight to the courts.
* The Court may have decided that, since the President objected in these cases, that was enough to lead the Court simply to follow the normal timetable rather than expediting the order. It is always easier for the Court to take an action when both sides support it.
* The Court, in its July 9 ruling, had shown some concern that the congressional demands may have had a political motive, and that might have made it more skeptical about the congressional subpoenas than about the demand from the New York prosecutor, so felt no need to speed up the process for the benefit of the committees.
The Court’s failure to provide its own reason for denying the request left observers to speculate about its reasoning.
There appears to be no legal barrier to the House committees deciding now to start all over by issuing new subpoenas, without waiting for the Court to implement its July 9 decision. In fact, the panels may have to come up with new justifications for the existing subpoenas, in order to answer the objections that the Court said the President could now assert against those demands. The President’s lawyers have made clear that they will mount a variety of challenges to the subpoenas.