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Will The Supreme Court Finally Force Trump’s Tax Returns To Be Released?

Remember President Trump’s tax returns? It seems like a relic from the distant past, but only last December, the U.S. Supreme Court agreed to hear a trio of cases on whether the president could block his accounting firm and two of his banks from turning over eight years of tax returns and other financial records to Democratic-led House committees and New York City prosecutors. Trump’s lawyers have offered an extraordinarily expansive vision of his power as president, arguing that as chief executive he is immune from criminal investigations and congressional subpoenas. The cases were supposed to be heard in late March but were delayed over a month due to the COVID-19 crisis. Now, on Tuesday morning, the justices will finally hear arguments in one of the most momentous disputes over congressional power and presidential immunity in recent memory.

The timing could be bad for Trump, as the accounting firm and banks have already indicated that if the Supreme Court deems the requests for his records valid, they would turn over the documents. That would give Trump’s political opponents a new source to mine for information on how he makes and spends his money right before the 2020 presidential election. On the other hand, a ruling in Trump’s favor could ensure that his financial documents remain hidden for the foreseeable future.

But the outcome might not be that simple. A few weeks ago, the justices asked both sides to weigh in on whether the dispute between Trump and House Democrats is fundamentally political and, therefore, beyond the reach of the courts. A ruling that the courts are powerless to resolve this fight could translate into a loss for Trump since he wouldn’t have any power to stop his accounting firm or banks from handing over his records. But it’s not clear exactly what would happen if the Supreme Court stepped aside — and losing the courts as a referee in fights over subpoenas could also be a longer-term victory for the presidency, as Congress could lose its ability to make high-level executive branch officials actually comply with their subpoenas for documents or testimony.

“If Congress isn’t allowed to use the courts to resolve these disputes, we’d see even more brinksmanship on both sides,” said Steve Vladeck, a constitutional law professor at the University of Texas at Austin School of Law. “It would remove any incentive for cooperation or accommodation. And it would be a stunning, stunning blow to Congress’s oversight power over the executive branch.”

At the heart of these cases is a question that’s come up again and again during Trump’s presidency: Is the president really protected from legal and congressional scrutiny?

Trump’s lawyers argue that even though investigators aren’t asking him for the records personally — House Democrats subpoenaed Trump’s financial documents from his banks and accounting firm, and New York City prosecutors subpoenaed his tax returns as part of a broader criminal investigation into Trump’s businesses — the prosecutors’ subpoenas are still invalid because while Trump is in the White House, he is immune from criminal investigations. And they’ve also contended that the requests for his financial documents are outside of Congress’s legislative purview.

At this point, though, three trial court judges and three federal appeals court panels have all rejected those arguments, ruling that the banks and Trump’s accounting firm do in fact have to comply with the subpoenas. In the case involving the New York City prosecutors, a district court judge wrote that the idea that a president couldn’t be touched by a criminal investigation was “repugnant to the nation’s governmental structure and constitutional values.” Two appeals courts, meanwhile, ruled that the subpoenas did fall squarely under Congress’s oversight authority.

There are ways, however, for the justices to rule in Trump’s favor without endorsing his lawyers’ argument that the president can’t be investigated by law enforcement or Congress. One potential roadmap is in a dissent written by an appeals court judge, who said Congress could investigate potential wrongdoing by the president only as part of an impeachment investigation, not as routine oversight.

Any ruling that a congressional subpoena was invalid would still constitute a fairly clear win for Trump, though. And in a term in which the Supreme Court is considering a handful of other cases with significant political implications, the justices may be looking for an outcome that doesn’t notch an obvious victory for either side. Concluding that the dispute is a political fight that’s simply out of their hands — which is what the court did last year in a case involving partisan gerrymandering — could be attractive, according to Vladeck and others. That’s in part because it’s genuinely unclear what the short-term impact would be.

If the courts step out of the way, the fateful decision whether to release Trump’s tax returns to the House committees would be left up to his banks and accounting firm. But how they would proceed in the absence of a court order is an open question. “At that point, it’s all about whether the banks and the accounting firm are inclined to comply,” said Michael Dorf, a constitutional law professor at Cornell Law School. “If they are, Trump doesn’t have a way to stop them. But if they’re not, Congress doesn’t have a lot of other options to force them to comply.”

In theory, Congress would still have one card to play: It could exercise its “inherent contempt” power, which involves physically detaining anyone who ignores its subpoenas. But that power hasn’t been exercised since the 1930s, and House Democrats haven’t used it so far on other noncompliant witnesses in the Trump administration, signaling that they’d be unlikely to use it in this case, too — leaving Congress with functionally no power to enforce its subpoenas.

The stakes are high in the short term for Trump, but they’re arguably even higher for Congress. The New York City prosecutors might also lose, but Vladeck said he saw fewer long-term implications for that case. “The [New York] case is basically a Trump special that is unlikely to repeat for future presidents who don’t have the same kind of ongoing business interests,” he said. But a ruling that the courts can’t arbitrate disputes over congressional subpoenas involving the president would reverberate far beyond Trump’s presidency.

“It’s hard to imagine how they could write that opinion in a way that wouldn’t have major, major implications for other congressional subpoenas when Trump and his tax returns are far in the rearview mirror,” said Tara Leigh Grove, a professor at William & Mary Law School who has written about the history of the political question doctrine. “The ruling in this case could significantly diminish Congress’s oversight power over future presidents.”

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Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.