SUPREME COURT NOTEBOOK


Court keeps president’s taxes private for now

By Mark Sherman
Associated Press

WASHINGTON (AP) — Rejecting President Donald Trump’s complaints that he’s being harassed, the Supreme Court ruled last Thursday in favor of a New York prosecutor’s demands for the billionaire president’s tax records. But in good political news for Trump, his taxes and other financial records almost certainly will be kept out of the public eye at least until after the November election.

In a separate case, the justices kept a hold on banking and other documents about Trump, family members and his businesses that  Congress has been seeking for more than a year. The court said that while Congress has significant power to demand the president’s personal information, it is not limitless.

The court turned away the broadest arguments by Trump’s lawyers and the Justice Department that the president is immune from investigation while he holds office or that a prosecutor must show a greater need than normal to obtain the tax records. But it is unclear when a lower court judge might order the Manhattan district attorney’s subpoena to be enforced.

Trump is the only president in modern times who has refused to make his tax returns public, and before he was elected he promised to release them. He didn’t embrace last Thursday’s outcome as a victory even though it is likely to prevent his opponents in Congress from obtaining potentially embarrassing personal and business records ahead of Election Day.

In fact, the increasing likelihood that a grand jury will eventually get to examine the documents drove the president into a public rage. He lashed out declaring that “It’s a pure witch hunt, it’s a hoax” and calling New York, where he has lived most of his life, “a hellhole.”

The documents have the potential to reveal details on everything from possible misdeeds to the true nature of the president’s vaunted wealth – not to mention uncomfortable disclosures about how he’s spent his money and how much he’s given to charity.

The rejection of Trump’s claims of presidential immunity marked the latest instance where his broad assertion of executive power has been rejected.

Trump’s two high court appointees, Justices Neil Gorsuch and Brett Kavanaugh, joined the majority in both cases along with Chief Justice John Roberts and the four liberal justices. Roberts wrote both opinions.

“Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns,” Roberts wrote in the congressional case.

But Roberts also wrote that Trump was asking for too much. “The standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities,” the chief justice wrote.

The ruling returns the congressional case to lower courts, with no clear prospect for when it might ultimately be resolved.

Promising to keep pressing the case in the lower courts, House Speaker Nancy Pelosi said last Thursday’s decision “is not good news for President Trump.”

“The Court has reaffirmed the Congress’s authority to conduct oversight on behalf of the American people,” Pelosi said in a statement.

The tax returns case also is headed back to a lower court. Mazars USA, Trump’s accounting firm, holds the tax returns and has indicated it would comply with a court order. Because the grand jury process is confidential, Trump’s taxes normally would not be made public.

Manhattan District Attorney Cyrus Vance Jr. said his investigation, on hold while the court fight played out, will now resume.

“This is a tremendous victory for our nation’s system of justice and its founding principle that no one — not even a president — is above the law, “ Vance said said.

Even with his broadest arguments rejected, Jay Sekulow, Trump’s personal lawyer, said he was pleased that the “Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s financial records. We will now proceed to raise additional Constitutional and legal issues in the lower courts.”

Justice Samuel Alito, who dissented with Justice Clarence Thomas in both cases, warned that future presidents would suffer because of the decision about Trump’s taxes.

“While the decision will of course have a direct effect on President Trump, what the Court holds today will also affect all future Presidents—which is to say, it will affect the Presidency, and that is a matter of great and lasting importance to the Nation,” Alito wrote.

The case was  argued by telephone in May because of the coronavirus pandemic.

The fight over the congressional subpoenas has significant implications regarding a president’s power to refuse a formal request from Congress. In a separate fight at the federal appeals court in Washington, D.C., over a congressional demand for the testimony of former White House counsel Don McGahn, the administration is making broad arguments that the president’s close advisers are “absolutely immune” from having to appear.

In two earlier cases over presidential power, the Supreme Court acted unanimously in requiring Richard Nixon to turn over White House tapes to the Watergate special prosecutor and in allowing a sexual harassment lawsuit against Bill Clinton to go forward.

In those cases, three Nixon appointees and two Clinton appointees, respectively, voted against the president who chose them for the high court. A fourth Nixon appointee, William Rehnquist, sat out the tapes case because he had worked closely as a Justice Department official with some of the Watergate conspirators whose upcoming trial spurred the subpoena for the Oval Office recordings.

The subpoenas are not directed at Trump himself. Instead, House committees want records from Deutsche Bank, Capital One and Mazars.

Appellate courts in Washington, D.C., and New York brushed aside Trump’s arguments in decisions that focused on the fact that the subpoenas were addressed to third parties asking for records of his business and financial dealings as a private citizen, not as president.

Two congressional committees subpoenaed the bank documents as part of their investigations into Trump and his businesses. Deutsche Bank has been one of the few banks willing to lend to Trump after a series of corporate bankruptcies and defaults starting in the early 1990s.

Vance and the House Oversight and Reform Committee sought records from Mazars concerning Trump and his businesses based on payments that Trump’s former personal lawyer, Michael Cohen, arranged to keep two women from airing their claims of decade-old extramarital affairs with Trump during the 2016 presidential race.
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Associated Press writer Zeke Miller contributed to this report.


Justices rule swath of Oklahoma remains tribal reservation

By Sean Murphy
and Jessica Gresko
Associated Press

WASHINGTON (AP) — The Supreme Court ruled last Thursday that a large chunk of eastern Oklahoma remains an American Indian reservation, a decision that state and federal officials have warned could throw Oklahoma into chaos.

The court’s 5-4 decision, written by Justice Neil Gorsuch, means that Oklahoma prosecutors lack the authority to pursue criminal cases against American Indian defendants in parts of Oklahoma that include most of Tulsa, the state’s second-largest city.

“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. ... Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word,” Gorsuch wrote in a decision joined by the court’s liberal members.

The court’s ruling  casts doubt on hundreds of convictions won by local prosecutors. But Gorsuch suggested optimism.

“In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long. But it is unclear why pessimism should rule the day. With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners,” he wrote.

Oklahoma’s three U.S. attorneys quickly released a joint statement expressing confidence that “tribal, state, local and federal law enforcement will work together to continue providing exceptional public safety” under the ruling.

Jonodev Chaudhuri, ambassador of the Muscogee (Creek) Nation and a former chief justice of the tribe’s Supreme Court, said the state’s argument that such a ruling would cause legal havoc in the state was overblown.

“All the sky-is-falling narratives were dubious at best,” Chaudhuri said. “This would only apply to a small subset of Native Americans committing crimes within the boundaries.

“This case didn’t change ownership of any land. It didn’t impact the prosecutions of non-Indians in any way. All it did was bring clarity to jurisdictional questions regarding the border, and it enhanced the Creek Nation’s ability as a sovereign nation to work with other sovereign interests to protect people and to work in common interests.”

Forrest Tahdooahnippah, a Comanche Nation citizen and attorney who specializes in tribal law, said the ruling’s short-term implications are largely confined to the criminal context and that serious felonies committed by Native Americans in parts of eastern Oklahoma will be subject to federal jurisdiction.

“In the long term, outside of the criminal context, there may be some minor changes in civil law,” he said. “The majority opinion points out assistance with Homeland Security, historical preservation, schools, highways, clinics, housing, and nutrition programs, as possible changes. The Creek Nation will also have greater jurisdiction over child welfare cases involving tribal members.”

The case, which was argued by telephone in May because of the coronavirus pandemic, revolved around an appeal by an American Indian who claimed that state courts had no authority to try him for a crime committed on reservation land that belongs to the Muscogee (Creek) Nation.

The reservation once encompassed 3 million acres (12,100 square kilometers), including most of Tulsa.

The Supreme Court, with eight justices taking part, failed to reach a decision last term when it reviewed a federal appeals court ruling in a separate case that threw out a state murder conviction and death sentence. In that case, the appeals court said the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never clearly eliminated the Creek Nation reservation it created in 1866.

The case the justices decided last Thursday involved 71-year-old Jimcy McGirt, who is serving a 500-year prison sentence for molesting a child. Oklahoma state courts rejected his argument that his case does not belong in Oklahoma state courts and that federal prosecutors should instead handle his case.

McGirt could potentially be retried in federal court, as could Patrick Murphy, who was convicted of killing a fellow tribe member in 1999 and sentenced to death. But Murphy would not face the death penalty in federal court for a crime in which prosecutors said he mutilated the victim and left him to bleed to death on the side of a country road about 80 miles (130 kilometers) southeast of Tulsa.

Neither Murphy nor McGirt is expected to be released from prison, but they will likely have charges brought against them in federal court, said Michael McBride, chair of the Indian Law & Gaming Practice for Oklahoma City-based law firm Crowe & Dunlevy.

“As a practical matter for Mr. McGirt, the U.S. attorney will probably put a hold on his release, and there will be an indictment from a federal grand jury very quickly,” McBride said. “Neither will see the light of day, most likely.”

Following the ruling, the state of Oklahoma issued a joint statement with the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations in which they vowed to work together on an agreement to address any unresolved jurisdictional issues raised by the decision.

“The Nations and the State are committed to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for the crimes for which they are accused,” the statement read. “We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.”
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Murphy reported from Oklahoma City.

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