The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On the eve of oral arguments in Trump v. Hawaii, reporter Robert Barnes aptly summarized the case in a pithy headline for the Washington Post: "In travel ban case, Supreme Court considers 'the president' vs. 'this president.'" The Court chose the former. "[W]e must consider not only the statements of a particular President," Chief Justice Roberts explained, "but also the authority of the Presidency itself." Shortly after the case was decided, I asked how the Court would treat "this President" as opposed to "the President" in future cases.
Today, the Supreme Court heard a marathon of oral arguments in the two tax-return: Trump v. Mazars and Trump v. Vance. The former case considers congressional subpoenas and the latter case considers state grand jury subpoenas.
During Mazars, the advocates expressly contrasted "this president" with "the presidency." First, Patrick Strawbridge, who represented President Trump:
MR. STRAWBRIDGE: Now it is no secret the relationship between the House of Representatives and the President is frayed, but this is neither the first nor the last time that one House of Congress will be at odds with the President. The rule that the Court applies here will affect not only this President but the presidency itself. The Court should deny the committees the blank check they seek and reverse the decisions below.
Second, Deputy Solicitor General Jeff Wall:
MR. WALL: So, yes, we are saying that these subpoenas, and certainly these subpoenas taken in the aggregate, once the House has this weapon, will harm and undermine the presidency of the United States, not just this President, the institution of the presidency going forward.
Justice Ginsburg raised this issue, indirectly:
JUSTICE GINSBURG: Counsel, in so many of these prior cases, there was a cooperation, for example, tax returns. Every President voluntarily turned over his tax returns. So it gets to be a pitched battle here because President Trump is the first one to refuse to do that. And, initially, he said because an audit was ongoing. Now it seems to be broader than that.
Justice Ginsburg made similar remarks in 2016 before Trump was ever elected:
"He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."
Later, during oral arguments in Vance, Justice Gorusch raised this precise issue:
JUSTICE GORSUCH: Well, I –I know you think you win no matter what. I'm –I'm just –we have to write a rule that's presumptively of –of some value going forward and isn't just about one President but it's about the presidency.
Will the Tax Return cases yield decisions for "this President" or "the Presidency"? I don't have a firm prediction here. I will flesh out my thoughts in a few other posts.