Donald Trump's Finances: Will Voters Ever Know The Facts?

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Illustration by Alex Fine

President Donald Trump's most jealously guarded secrets—his financial records, including tax returns—will probably remain hidden from voters until after the next election.

That's just one likely consequence of the U.S. Supreme Court's red-letter decision earlier this month to hear three cases, involving five subpoenas, seeking those records. Though the Justices will hear arguments in March and rule by next June—several months before we go to the polls—it seems increasingly doubtful that they will order a quick, clean turnover of the president's crown jewels.

Rather, the Court's decision to review these cases signals that ninety-two years of legal precedent concerning the investigative powers of Congress may be due for an overhaul. Precisely what will emerge is anyone's guess, except that it will be momentous.

The subpoenas, issued by three Congressional committees and a state grand jury in Manhattan, seek the records of Trump, his three oldest children—Donald Jr., Ivanka and Eric—The Trump Organization and a dense tangle of affiliated business entities.

Since 1927, when the Court decided a case stemming from the Teapot Dome scandal of the Warren Harding Administration, the law in this area has been fairly clear. Congress has had broad investigative leeway to inform its legislative functions. So long as it could articulate a "legislative purpose" for the information sought, courts would not second-guess its motives.

But while Congressional subpoenas were once rare, their use has been accelerating since the 1970s. Since taking control of the House in January, Democrats have demanded documents from more than 100 Trump allies or businesses. In response, Trump has stonewalled. "We're fighting all the subpoenas," he vowed last April.

In taking these cases, the Court looks poised to steer, at the very least, a course correction.

"Disputes over documents and testimony in the past usually got resolved through a process of mutual accommodation and compromise," says Mark Rozell, the Dean of the Schar School of Public Policy and Government at George Mason University, and an expert on investigative clashes between the President, Congress, and the judiciary. "Matters get trickier when there is no accommodation process—regardless of who is at fault for that. The Court may very well be tempted to fashion a judicial resolution that puts constraints around the subpoena power and requires some actual showing of need—of something much more than a fishing expedition."

The lower courts saw these cases as pretty simple.

Because the subpoenas sought only personal records, and not official documents, they raised no thorny "executive privilege" issues. In addition, since these subpoenas were directed to Trump's accountants and banks, rather than to Trump directly, they required no action on his part—occasioning no distraction from his official duties.

Donald Trump
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PARTY LINES

Two of the cases involve subpoenas to Mazars USA, Trump's accounting firm, while the other involves subpoenas to his banks, Deutsche Bank and Capital One. (Neither the accounting firm nor banks are fighting the subpoenas, but Trump filed three federal suits, one in Washington and two in New York, to block those institutions from complying.)

All three district judges ruled against Trump, and all three appeals courts promptly affirmed. In total, twelve federal judges took part, with nine voting against Trump. The appeals court rulings were authored by three eminent circuit judges with, between them, 92 years of experience on the bench.

Still, in today's politically polarized world, counting lower court rulings is a poor way to predict Supreme Court outcomes. Eight of the nine judges who ruled against Trump were appointed by Democrats, while all three who voted for him were Republican-appointees. (Two additional Republican appeals court judges also voiced disagreement with the rulings by requesting, unsuccessfully, reconsideration of the case involving the Congressional subpoena to Mazars.)

Even apart from political allegiances, there's another reason lower court decisions don't necessarily predict High Court outcomes. Lower court judges are bound by Supreme Court precedent, while Supreme Court justices are not.

COMPROMISE?

The trio of subpoena cases now before the Court present distinct issues from one another. Accordingly, their outcomes may vary, and there is room for compromise among the justices.

The first case involves a subpoena that the late Elijah Cummings, then chairman of the House Oversight and Reform Committee, issued to Mazars this past April. It seeks, among other things, "all statements of financial condition, annual statements, periodic financial reports, and independent auditors' reports" prepared or reviewed by Mazars for Trump and his businesses. If Mazars used Trump's tax returns to prepare documents—which is, as yet, unknown—Mazars would have to turn those over, too. (Still another House subpoena—issued by the Chairman Richard Neal's Ways and Means Committee directly to the Treasury Department—specifically seeks Trump's tax returns. But litigation over that subpoena is still bogged down in a federal district court in Washington, and seems unlikely to be resolved before the election.)

Cummings' subpoena to Mazars was prompted, in part, when the Office of Government Ethics, in May 2018, found that candidate Trump had filed an inaccurate ethics disclosure statement. It omitted his obligation to reimburse his private attorney, Michael Cohen, for "hush money" payments to adult film actress Stormy Daniels. (Daniels says she had an affair with Trump, which he has denied.) Later, when Cohen testified before Cummings' committee this past February, he alleged that Trump regularly "inflated his total assets when it served his purposes" and "deflated his assets to reduce his real estate taxes."

In asking his committee to approve the subpoena to Mazars, Chairman Cummings explained in a memo that the committee needed to inform itself, among other things, about pending and potential ethics legislation it might enact to beef up Presidential disclosure obligations.

The subpoena's demands seemed quite unremarkable to both the district and appellate courts in Washington, D.C. The materials related to a "subject ... on which legislation could be had," in the broad words of the landmark 1927 Supreme Court precedent, McGrain v. Daugherty. A subsequent High Court ruling also dictated that "so long as Congress acts in pursuance of a Constitutional power, the Judiciary lacks authority to intervene on the basis of the motives that spurred that power."

RAO TO THE RESCUE

But there was an important dissenting voice on the appeals panel. It belonged to Circuit Judge Neomi Rao, a 46-year-old Federalist Society favorite whom Trump appointed to the bench in March, just a month before the subpoena was issued. (Her bitterly contested appointment was approved by the Senate on a party-line vote, 53-46.)

Rao homed in on a particular clause from chairman Cummings' memo to his committee, laying out the reasons for the subpoena. There Cummings had specifically admitted that he also wanted to find out "whether the President may have engaged in illegal conduct before and during his tenure in office."

Rao then drew a bright-line distinction that, if adopted by the Supreme Court, would mark a radical change from existing practice. "Allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment," she wrote. This was so, she insisted, even if "the investigation also has a legislative purpose." (Although Congress did, months later, start a formal impeachment inquiry to study unrelated matters—the "favor" Trump asked of Ukrainian president Volodymyr Zelenskiy—the validity of the subpoenas now before the Court will probably be unaffected by that development.)

Judge David Tatel, the Clinton appointee who wrote the majority decision, rejected Rao's reasoning. "The dissent cites nothing in the Constitution or case law—and there is nothing—that compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process."

Rao's approach, he protested, "would enfeeble the legislative branch," forcing Congress either "to initiate the grave and weighty process of impeachment or forgo any investigation in support of potential legislation." Her interpretation would force legislative inquiries to "grind to a halt whenever . . . crime or wrongdoing is disclosed."

The second case before the Court involves three subpoenas issued to Deutsche Bank and Capital One. These were issued by the House Financial Services Committee (which subpoenaed both institutions) and the House Permanent Select Committee on Intelligence (which subpoenaed only Deutsche Bank).

This main difference between this case and the Mazars case is that the Finance and Intelligence committee chairs did not explicitly admit that they were seeking evidence of criminal wrongdoing. Thus, Judge Rao's argument—that the subpoena could only be issued as part of a formally convened impeachment inquiry—was unavailable.

LEVERAGE?

The stated purposes for the Deutsche Bank and Capital One subpoenas were more benign. Chairwoman Maxine Waters, of the Finance committee, said she was investigating potential legislation relating to "money-laundering schemes," while Intelligence chair Adam Schiff said his committee was pursuing its inquiry into Russia's operations to influence American elections.

Schiff wanted to find out, for instance, "whether any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates." (The New York Times had reported, as Schiff noted, that over the past two decades Trump had borrowed more than $2 billion from Deutsche Bank at a time when no other bank would lend to him.)

Again, the lower court judges saw nothing amiss with these subpoenas, though they admitted that they were quite broad. The ones to Deutsche Bank, for instance, sought "any summary or analysis of domestic or international account deposits, withdrawals, and transfers." The subpoenas generally demanded documents dating back to at least 2010, and for a few categories of documents there was no time limit at all.

Again, a Republican-appointee dissented.

"The legislative subpoenas here are deeply troubling," wrote Circuit Judge Debra Ann Livingston, a George W. Bush selection. She expressed concern that "ill-conceived" Congressional inquiries could lead to "ruthless exposure of private lives" and fuel perceptions that legislative committees were "engaged, not in legislating, but in opposition research."

Accordingly, Livingston would have sent the case back to the lower courts and required the committees to show much more specific need for each category of document sought.

Trump Tax Returns
Treasury Secretary Steven Mnuchin testifies during a House Financial Services Committee on Capitol Hill May 22, 2019 in Washington, DC. The committee heard testimony from the Secretary on the State of the International Financial System, and President Donald Trump’s tax returns. Mark Wilson/Getty Images/Getty

HUSH

The third case before the Court presents different issues still. It involves a state grand jury subpoena, rather than a Congressional subpoena.

This subpoena, issued in late August and also directed to Mazars, stems from a criminal inquiry opened by Cyrus Vance, Jr., the District Attorney for New York County. Vance's inquiry reportedly revolves around the "hush money" payments made on Trump's behalf to actress Daniels and a second woman, former Playboy model Karen McDougal, who has also said she had an affair with Trump. (Trump has denied that affair, too.)

In his suit to block Vance's grand jury subpoena, Trump claims that he is absolutely immune from all stages of criminal process while in office, including pre-indictment investigation. During oral argument before the appeals court in October, Trump's lawyer stunned observers by arguing that if President Trump shot someone on Fifth Avenue, local authorities would be powerless to act.

Though everyone acknowledges that Trump probably cannot be indicted while in office, Trump's sweeping claim to pre-indictment immunity is squarely contrary to Supreme Court precedent, according to the unanimous ruling written last month by Chief Judge Robert Katzmann of the U.S. Court of Appeals in New York.

Specifically, Trump's position runs counter to the most famous subpoena case in history. In 1974 the Supreme Court unanimously ordered President Nixon to turn over his Oval Office tape recordings in response to a federal grand jury subpoena—the event that led to his resignation. In 2000, the Justice Department's Office of Legal Counsel also specifically opined that a grand jury could properly "gather evidence" throughout a President's term, even though it couldn't issue an indictment until he left office.

Furthermore, Katzmann noted, the grand jury's request for Trump's tax returns was not even particularly invasive. The last six Presidents, dating back to Jimmy Carter, all disclosed theirs to the public voluntarily, he observed in a footnote.

NO SATISFACTION

While the grand jury case may be the simplest of the three before the Court, offering the strongest prospects for unanimous affirmance, it will not furnish voters with any insights. Even if Mazars turns over Trump's tax returns to District Attorney Vance, they will remain grand jury secrets unless and until they become the subject of an indictment—which, again, cannot happen until Trump leaves office.

To be clear, some observers remain optimistic that the Supreme Court will follow its precedents and enforce the Congressional subpoenas in these cases. They hold out hope that today's bitterly divided Supreme Court will come together in another transcendant ruling comparable to United States v. Nixon in 1974 or Clinton v. Jones in 1998, unanimously reaffirming that no man is above the law. (In Jones, the Court held that President Clinton was not immune from responding to Paula Jones' civil discovery requests while in office.)

"The fact that the political tables could one day be turned should provide grounds for consensus on the Court in support of the House," says Brianne Gorod, chief counsel of the progressive Constitutional Accountability Center. "Accepting the president's arguments would undermine Congress's oversight authority, which is critical to our nation's system of checks and balances, and would make it more difficult for Congress as an institution to do its job, no matter which political party holds a majority."

Still, the rulings below suggest that judges of different parties see these cases through radically different lenses. In any case, even some justices in the Court's liberal faction may have concerns about the broad, invasive subpoenas that a vindictive Republican Congressional chairman or a rogue Republican state prosecutor might one day fashion for some future Democratic president.

It seems certain that, in time, grand jurors, journalists, biographers, and historians will all pore over Trump's financial records, including his tax returns.

But not voters—at least not before November 3, 2020.

Donald Trump's Finances: Will Voters Ever Know The Facts?