While Paul may still prove right — Roberts has changed his mind before! — today’s oral arguments strongly indicate that the Court intends at a minimum to run out of the clock so that no electorate can see Trump’s tax returns with Trump on the ballot:
Not long after Letter began his argument, Chief Justice Roberts revealed just how sympathetic he is to Trump’s position. Letter’s brief, Roberts noted, states that a congressional investigation must “concern a subject on which legislation can be had.” According to Roberts, this “test is really not much of a test” because it doesn’t impose significant limits on congressional investigations of the president.
Roberts isn’t wrong that the test laid out in Letter’s brief is very permissive of congressional investigations. But it’s not like Letter just made that test up. The idea that Congress may conduct any investigation that concerns “a subject on which legislation can be had” was endorsed by many prior Supreme Court decisions over the course of many decades.
Roberts’s disdain for this longstanding standard was echoed by several of his colleagues. Justice Neil Gorsuch dismissed it as “limitless.” Justice Brett Kavanaugh worried that it would permit congress to declare “open season” on presidents. And Letter was unable to offer a new limit on congressional investigations that would satisfy these justices.
Meanwhile, Justice Samuel Alito repeatedly accused the House of issuing these subpoenas to harass the president — a fact that is irrelevant under Barenblatt’sholding that “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
That means months, or even years, of additional litigation before these cases are resolved. Enough to push any final resolution past the November election. And enough to ensure that voters will go to the polls without knowing what evidence might have been revealed if the Supreme Court applied the same law to Trump that it applies to anyone else.
This is a case where a good oral argument might have made a difference at the margin (like Verrilli emphasizing the tax power argument), and the lawyer House Dems hired was atrocious. But more likely the fix was in from the get go. Of course, by the time this case gets back to the Court, if Joe Biden is in the White House expect Congress to get a more sympathetic hearing.