The resistance appears to be coming together. In a stunning and historic change of protocol the United States Supreme Court will hold teleconference hearings and will actually live-stream broadcast the oral arguments and questions. Two elements are remarkable.
First, that the Supreme Court would permit a livestream broadcast of any hearing is historic. The purposeful controls of the Court, never allowing video, cameras or live audio broadcasting for their hearings, was always justified around the court never wanting to allow politics and media to shape the serious legal issues being debated.
Secondly, and perhaps not coincidentally, during this live-stream session, the Supreme Court is going to be hearing legal arguments after they consolidated a series of cases targeting the financial and business records of President Donald Trump. The various lawsuits against President Trump are not only going to be heard, they are going to be broadcast. It doesn’t get much more political than that.
WASHINGTON (AP) — The Supreme Court said Monday it will hold arguments by teleconference in May in key cases, including President Donald Trump’s bid to shield his tax and other financial records.
The court will make live audio of the arguments available for the first time. It had previously postponed courtroom arguments for March and April because of the coronavirus.
The court will hear 10 cases in all between May 4 and May 13. In addition to fights over subpoenas for Trump’s financial records, they include two cases about whether presidential electors are required to cast their Electoral College ballots for the candidate who won their state.
[…] The court has never live-streamed courtroom arguments and only rarely has it made the audio available on the same day. Cameras also are not allowed in the courtroom.
Most federal appeals courts already have moved to allow arguments by phone, though some cases are being postponed or decided without arguments.
The Supreme Court did not indicate when it might decide the cases it will hear in May. The court usually winds up its work for the summer by the end of June, and returns to the bench on the first Monday in October. Another 10 cases that were postponed because of the virus outbreak will be argued in the fall, said Stephen Vladeck, a University of Texas law professor who will argue one of those cases, involving rapes by members of the military.
The justices last met in public on March 9, and have held private conferences by telephone since then. The court has decided seven cases in the past month, and while the justices customarily read a summary of the decision from the bench, all the opinions have been released online.
The justices all remain healthy, court spokeswoman Kathleen Arberg said. (read more)
In December of last year the Supreme Court granted the petition for a writ of certiorari and said they would hear all cases related to attempts to gain President Trump financial records and tax filings.
The Supreme Court issued a stay upon all lower court action and consolidated the cases into one writ. The court will hear arguments in May and release a ruling later in the summer of 2020.
President Trump went to the Supreme Court after the House Financial Services and Intelligence Committees issued subpoenas to Deutsche Bank and Capital One seeking President Trump’s tax records. In his request to the court [Read Here] Trump asked SCOTUS to block the subpoenas on the ground they go beyond the committees’ powers.
Justice Ginsburg stayed the lower court decision and ordered the House of Representatives to file a response by Wednesday, December 11, 2019. The cases and issues were then discussed at their private SCOTUS conference. The court decided to take up all the cases.
The underlying House case has several defects and there is a strong likelihood President Trump would win the case:
House Oversight is one of three committees that 26USC§6103(f) requires the IRS to turn over individual returns “upon request”.
They requested (PDJT taxes for 6 years 2013-2018) long before Pelosi announced her impeachment inquiry, way before the House vote on same, to which Pelosi said Sunday, (paraphrased) “We haven’t decided to impeach. We are only inquiring about it.”
The ‘upon request’ is not as absolute as it seems. The request must still be predicated on a legitimate legislative purpose. SCOTUS has held (I skip the rulings, since previously commented on here many months ago) that there are only two valid purposes, both constrained to legislative powers expressly granted by A1§8.
1. An inquiry into making, repealing, or amending an A1§8 law.
2. Oversight of executive administration of an existing law.
With respect to (1), a legitimate legislative purpose would be reviewing real estate tax law for possible changes. BUT then, the request should have come from Ways and Means (Neal) where tax laws originate. AND, it should have included requests for tax returns from other big real estate developers also. Singling out only PDJT is a fatal defect to this purpose.
With respect to (2), after Nixon/Agnew the tax code was amended to require a special IRS audit of annual POTUS and VPOTUS returns, with the results held in the National Archive. Reviewing those special audits by IRS would be a proper Oversight and Reform legislative purpose, BUT ONLY for 2017-2018 after PDJT was inaugurated. The earlier 4 years demanded are a fatal defect to this purpose.
Both these valid points were raised by President Trump and were already on their way to SCOTUS. Now the committee is trying to ‘cure’ these fatal request defects by claiming the returns are necessary for impeachment. This raises four new issues where PDJT can also win.
1. Impeachment is not a legislative purpose within A1§8.
2. Articles of Impeachment have historically been the the province of Judiciary, NOT Oversight.
3. The demand was made BEFORE the impeachment inquiry unofficially started and cannot be retrospectively cured.
4. No tax ‘high crimes of misdemeanors’ have even been alleged. Impeachment fishing expeditions are unconstitutional.
IMO this case has the potential to set a major constitutional precedent about POTUS harassment via political impeachment. The constitutional convention minutes and Federalist #65 both make it clear why ‘maladministration’ (the original third test after treason and bribery, and which WOULD allow for political impeachment) was replaced by ‘High Crimes and Misdemeanors’. The phrase was borrowed from prior British law, has a specific set of meanings, and DOES NOT allow political impeachment. (link)
The quest for President Trump’s financial records is essentially a legislative and political fishing expedition in an attempt to gain opposition research for their Democrat candidate in the 2020 election. [Joe Biden or other]