February 18, 2021 8:05 AM
Posted: Feb. 18, 2021 8:05 AM
Lawsuits involving Donald Trump tore up the Supreme Court while he was President, and judges apparently remain ruled by him.CNN Illustration / Getty Images
(CNN) – Lawsuits involving Donald Trump tore the Supreme Court apart while he was president, and judges seemingly remain torn by him.
For nearly four months, the court refused to act on emergency filings related to the Manhattan grand jury subpoena of Trump’s tax returns, thereby thwarting part of the investigation.
The Supreme Court’s inaction marks an extraordinary departure from its usual practice of quick responses when judges are asked to block a lower court decision in an emergency and has raised questions about what is happening in behind the scenes.
Chief Justice John Roberts, based on his past model, may be trying to appease the dueling factions among the nine judges, to avoid an order that reinforces an appearance of partisan politics. Yet paradoxically, the unexplained delay smacks of politics and seems to bewitch judges even more in Trump’s controversies.
The Manhattan investigation, led by Prosecutor Cyrus Vance, continues to garner public attention. The grand jury is looking for Trump’s personal and business records through 2011. Part of the investigation involves covert payments that Trump’s attorney, Michael Cohen, made to cover up suspected cases. (Trump has denied these allegations.)
For over a year, Trump’s lawyers have raised challenges to prevent the subpoena from being executed. Controversy appeared to peak at the Supreme Court last July, when judges rejected Trump’s claim that a sitting president was absolutely immune from criminal prosecution.
The 7-2 decision drafted by Roberts left some options for Trump on appeal, but lower court judges have since rejected Trump’s arguments, and his lawyers returned to the high court last fall for redress. Vance has agreed to wait a long time to enforce the subpoena until the judges act on Trump’s emergency request.
The Supreme Court’s lack of response has given Trump at least a temporary reprieve.
And his lawyers may soon be looking for more. CNN has learned that Trump’s legal team is preparing to submit a petition to judges by early March, based on a standard deadline for appeals, asking them to hear the merits of the request for Trump in oral argument.
In Trump’s October case, his lawyers continued to argue that the grand jury summons was too broad and issued in bad faith to harass him. They said he “makes sweeping demands and … crosses the line – even though he was targeting another citizen instead of the president.”
The certiorari application process, as it’s called, could add months to the case. If the judges agreed to hear the dispute fully on the merits, it could take a year to settle.
A spokesperson for Vance declined to comment. Trump’s lawyers also declined to comment for the record.
Silence of the court
When the latest round of litigation began, both sides based their October filings on a relatively swift lawsuit and alerted the court to their pact demanding that Vance refrain from carrying out the summons until that the judges acted on the emergency request.
The Trump team added that it would meet an accelerated timeline for its request for the court to hear oral arguments on the merits of the case.
The judges did not respond to this offer or to any part of the case. Typically, shortly after filing an emergency request and response, judges will announce whether they will grant the requested “stay”. (A grant, rather than a denial, takes five votes; filings in this chapter of Trump v. Vance were completed on October 19.)
A majority of judges may have opted against action near the Nov. 3 election, to avoid any signal for or against Trump in his quest to keep his tax returns private. But the election, the recounts, the certification of the Electoral College and the inauguration of January 20 have all come and gone.
Now that Trump has been removed from office, the heart of the matter over his role as president may be moot, legally irrelevant. But neither party raised this possibility in a supplementary file, nor did the judges raise the issue in anything made public. And the election results have been known for months.
In their original Oct. 13 request, senior Trump attorneys noted that Vance had accepted delays earlier as the case progressed and argued, “His need to secure these files is not somehow become urgent in the past few weeks.
Vance’s office retorted that the grand jury had waited long enough. The prosecutor’s office argued that the summons to Trump’s accountants, Mazars USA, was issued in August 2019 and that the High Court had warned in previous cases of public interest frustration by delaying work of a grand jury.
“This litigation has already significantly hampered the grand jury investigation,” the Vance team wrote.
Roberts and the expanding conservative majority
Throughout the Trump presidency, cases involving Trump regularly divide judges. Disputes over its administrative policy, such as the travel ban, were often decided by 5-4 votes.
The controversies over his personal financial records seemed even more difficult. Still, Roberts managed to convince seven of the judges to come together in the July Trump v Vance case.
In lofty language and in reference to Grand Chief Justice John Marshall, Roberts wrote: “Two hundred years ago a great jurist of this Court established that no citizen, not even the President, is categorically in the -above the common obligation to produce evidence when called upon in criminal proceedings. “
Roberts underscored the public interest in full access to evidence. The majority, however, said Trump could return to lower courts to assert certain state law claims, including that the subpoena was too broad or issued in bad faith.
Trump’s lawyers did indeed make these claims in the second round, but were dismissed by judges in the lower US appeals court. When a New York-based US appeals court ruled in early October, it said of the financial records sought: “There is no reason to believe that these are anything other than ordinary documents generally relevant to a grand jury investigation. on possible or professional misconduct. “
Until October, when Judge Amy Coney Barrett took over from the late Ruth Bader Ginsburg, the court was divided 5-4 along ideological and political lines. It’s now a 6-3 court, with the six nominated Republicans voting generally conservative and the remaining three Democratic candidates voting liberal.
On court 5-4, Roberts, a person nominated by Republican President George W. Bush, was in the ideological middle. This is no longer the case with the three people appointed by Trump.
This shift in dynamics among judges may complicate consideration of the new Trump v. Vance. Even in the momentous July ruling, Justices Brett Kavanaugh and Neil Gorsuch (the first two appointed by Trump) only approved Roberts’ final judgment and expressed a competing rationale that could strengthen a president’s ability to stand up to himself. fight against a summons. Justices Clarence Thomas and Samuel Alito were dissenting.
The possible scenarios involving an internal debate on Trump versus Vance are numerous, based on individual interests and respect for institutional integrity. Roberts may believe that airing disputes privately for many months is the best option, even if it leaves the parties and the public in anticipation and thought.
If Trump’s lawyers still had no word by the first week of March, they would present a petition asking for the merits of the case to be pleaded.
Under the current rules, apart from the “emergency” framework of this litigation, a person who lost in a lower court has 150 days from the date of this decision to appeal to the judges for review. If the individual first made an emergency request to block the effect of the lower court’s decision, the judges would typically have responded by granting or denying the stay. This is because the party seeking the intervention of the court would like immediate redress.
Here, however, because Vance has agreed to delay the execution of the subpoena, his office, rather than the Trump side, is at a disadvantage by the court’s inaction.
The path taken by the judges – or rather not taken – confused lawyers following the case. Long known for their secret ways, the court added a new dimension of mystery with Trump versus Vance.
All that is evident is that the judges diverged from long-standing practice and hampered the investigation of a former president.
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