Election 2020 Politics

Supreme Court ends Trump’s bid to shield his tax returns and effort to challenge election losses

None of the three justices Trump chose for the court — Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — publicly objected to the subpoena seeking his assiduously guarded tax records, or concluded that his reelection defeat was tainted.

Now, Trump faces unprecedented legal peril for a former president. Manhattan District Attorney Cyrus R. Vance Jr.’s criminal investigation of his business dealings in New York will accelerate and broaden, and Trump faces scrutiny in Georgia for his efforts to subvert the election results there.

The Post’s Jonathan O’Connell and David A. Fahrenthold explain the legal troubles President Trump could face after a New York Times investigation. (Mahlia Posey/The Washington Post)

Trump previously said the Supreme Court lacked “wisdom” and “courage” because of its refusal to take up challenges to the election. He responded to Monday’s order concerning his tax records with a statement referring to “the Continuing Political Persecution of President Donald J. Trump.”

“The Supreme Court never should have let this ‘fishing expedition’ happen, but they did,” Trump wrote. “This is something which has never happened to a President before, it is all Democrat-inspired in a totally Democrat location, New York City and State.”

Repeating the falsehood that he was reelected, Trump added: “I will fight on, just as I have, for the last five years (even before I was successfully elected), despite all of the election crimes that were committed against me. We will win!”

But the court’s one-sentence order, with no recorded dissents, appeared to quash Trump’s last chance to prevent the long-delayed disclosure of his financial records to Vance.

(The only good news for Trump from the high court: It declined to revive a defamation suit filed against him by adult-film star Stormy Daniels, who has said she had an affair with Trump many years ago — claims the former president denies — and who also figures into Vance’s investigation.)

Vance has won every stage of the legal fight — including the first round at the Supreme Court last summer — but has yet to receive the records he says are necessary for a grand jury investigation into whether Trump’s companies violated state law.

Vance responded to Monday’s decision with a three-word tweet: “The work continues.”

Trump has waged an extraordinary battle to shield his tax records, which every other modern president has released as an expected part of seeking the presidency. The court’s action does not mean Trump’s tax records are to become public. Vance has said they would be protected by grand jury secrecy rules, although portions have been released by others to the New York Times.

Vance has assembled a large team of investigators, including from outside the district attorney’s office, who are expected to begin picking apart the tax records immediately once they are obtained. The data is being sought not directly from Trump but from his longtime accounting firm, Mazars, which has said it will cooperate with the subpoena once court challenges end.

Forensic accounting experts from FTI Consulting are expected to assist prosecutors in assessing whether the Trump Organization manipulated property values to obtain tax breaks or favorable loan rates. The investigation is fairly well developed, but the tax returns are an integral part of the picture, and Monday’s order allowing Vance to execute the subpoena could mean that a lot of work is ahead, as the voluminous records span eight years.

The investigation began as a look into alleged hush-money payments to Daniels and another woman who claimed to have had an affair with Trump, former Playboy model Karen McDougal, during Trump’s 2016 campaign. It is now focused on the Trump Organization’s business dealings. Court filings by Vance’s prosecutors suggest that the investigation is looking into various allegations of impropriety, perhaps involving tax and insurance fraud.

The Supreme Court’s order Monday did not explain why the court waited four months to act on Trump’s request for immediate action. It appears likely that the court did not want to intervene in the weeks before the election. Then it was inundated with challenges to Trump’s loss.

The current fight is a follow-up to a July decision by the high court that the president is not immune from a criminal investigation while he holds office.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority in that 7-to-2 decision from July.

But the justices said Trump could challenge the specific subpoena, as every citizen may, for being overbroad or issued in bad faith.

A district judge and a panel of the U.S. Court of Appeals for the 2nd Circuit in New York found neither was the case, with the appeals court saying, “Complex financial and corporate investigations are broad by default.”

It said Trump’s lawyers had not raised “a plausible inference that the subpoena was issued out of malice or an intent to harass.”

The Supreme Court’s rejection of the election cases was expected, although there was a bit more disagreement among the justices.

The court purged itself of a range of suits filed by Trump and his allies in Pennsylvania, Wisconsin, Michigan, Georgia and Arizona — all states won by Biden.

The most important was a months-long dispute over extending Pennsylvania’s deadline for receiving mail-in ballots. Three justices — Clarence Thomas, Samuel A. Alito Jr. and Gorsuch — said it deserved the court’s attention, even though the number of votes at issue was too small to make a difference.

“A decision in these cases would not have any implications regarding the 2020 election,” Alito wrote. “But a decision would provide invaluable guidance for future elections.”

It takes the votes of four justices to accept a case for review. Although changing election rules because of the pandemic has been a theme of Republican challenges in the wake of Trump’s defeat, the rest of the conservative majority was silent. Roberts, Kavanaugh and Barrett did not sign on to dissents from Thomas and Alito.

The issue is whether state courts or other officials have the right to change voting procedures set by the state legislature when federal elections are at stake. In extending the right to a mail-in ballot to all voters, Pennsylvania’s Republican-controlled legislature said the ballots must be received by 8 p.m. on Election Day to be counted.

But the state’s Democrats challenged that. Citing the pandemic and concerns about the U.S. Postal Service’s ability to deliver mail on time, the Pennsylvania Supreme Court extended the receipt deadline until three days after the election. It cited a provision in the state constitution promising fair elections.

In a pre-election challenge before Barrett was confirmed to the bench, the Supreme Court deadlocked, and the extension remained in place. In the end, it affected fewer than 10,000 votes; Biden won by about 80,000.

But the question of who decides voting procedures has become an important one for Republicans, who control more state legislatures.

Thomas, Alito, Gorsuch and Kavanaugh all endorsed a view that the Constitution’s command that the “legislature” design the rules of elections means that state courts and agencies do not have a free hand to make changes to state laws. They say federal courts have a role in overseeing state court decisions.

That position received only three votes when the Supreme Court in 2000 decided Bush v. Gore. But last fall Gorsuch was among those making his view clear: “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”

Kavanaugh endorsed that view as well in the pre-election challenge. But he did not join the others Monday who wanted to take the Pennsylvania case, which the court’s majority said was moot.

Roberts has set himself apart from the other conservatives, saying state courts have a role to play. Barrett has not taken a position publicly.

Thomas, who advanced theories about the susceptibility of mail-in ballots to fraud similar to those endorsed by Trump, said it was a mistake for the court not to address the issue now.

“These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle,” he wrote. “The refusal to do so is inexplicable.”

Richard H. Pildes, an election law expert at New York University, said the decision probably was motivated by the court’s desire to provide closure to the election.

“I view the court as deciding to refrain from taking any action that could be misconstrued — and surely would be, by some — as casting any doubt on the legitimacy of the 2020 election,” Pildes wrote in an email.

“But the issues are major ones the court is inevitably going to have to confront in upcoming federal elections; without clear resolution, federal elections will continually be roiled by these issues.”

Indeed, Republican officials have cited the concern about election rules as reason not to declare the recent election fair. Speaking Sunday on the ABC News program “This Week,” House Minority Whip Steve Scalise (R-La.) said: “There were a few states that did not follow their state laws. That’s really the dispute that you’ve seen continue on.”

The Supreme Court has uniformly rejected challenges to the election results.

On Dec. 11, it dismissed a bid by Trump and the state of Texas to overturn the results in four battleground states won by Biden, blocking the president’s legal path to reverse his reelection loss.

David A. Fahrenthold, Shayna Jacobs and Jonathan O’Connell contributed to this report. Jacobs reported from New York.

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