Supreme Court

BREAKING: Supreme Court Decides Trump Financial Records Cases and Fate of Eastern Oklahoma (Updated)

The Supreme Court rejected Donald Trump's claims of immunity, but reaffirmed limits on investigatory powers, and ruled in favor of Native American tribal claims against Oklahoma.

|The Volokh Conspiracy |

The Supreme Court issued its final decisions of the term today, resolving the long-running dispute over Donald Trump's financial records and the status of eastern Oklahoma. The Court resoundingly rejected claims of Presidential immunity, but also roundly rejected the House of Representatives' claims of unlimited investigatory authority. The Court also ruled in favor of Native American claims against Oklahoma, in a 5-4 decision that produced the first and only dissent by Chief Justice Roberts so far this term (and only his second dissenting vote).

The first opinion of the day was McGirt v. Oklahoma, one of the most fascinating (and under-explored) cases of the term. Justice Gorsuch wrote for a five-justice majority that, for purposes of the Major Crimes Act, much of eastern Oklahoma is still "Indian country," and therefore the state lacks the jurisdiction to criminally prosecute members of Native American tribes for offenses covered by the Major Crimes Act.

Joined by the Court's liberals, here is how Justice Gorsuch's opinion begins:

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. In exchange for ceding "all their land, East of the Mississippi river," the U. S. government agreed by treaty that "[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians." Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and "permanent home to the whole Creek nation," located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that "[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves." 1832 Treaty, Art. XIV, 7 Stat. 368.

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.

Chief Justice Roberts wrote a dissent (his only authored dissent of the term), joined by the other conservatives, save for footnote 9 (which Justice Thomas did not join). Justice Thomas also wrote a separate dissent.

The Court also issued a one line per curiam opinion in Sharp v. Murphy, a case raising the same issue that had been held over from last term, presumably because the Court split 4-4. Justice Gorsuch was recused from that case. Sharp was decided 6-2 in accord with McGirt. Justice Thomas and Alito noted their dissent.

Chief Justice Roberts had the majority opinions in both Trump financial records cases, both of which were decided 7-2. First up was Trump v. Vance, in which the Court rejected Trump's claims of immunity from state grand jury proceedings. The Court was unanimous in rejecting Trump's claims of absolute immunity, but split 5-2-2 on the proper standard to apply.

Chief Justice Roberts, writing for himself and the Court's four liberals, concluded that neither Article II of the Constitution nor the Supremacy Clause bar a state criminal subpoena for the personal records of a sitting president, nor do they require a heightened standard. Nonetheless, Roberts also concluded that a sitting President can still make specific objections to specific elements of a subpoena, and the lower courts will have to consider such objections on remand.

His opinion for the Court begins:

In our judicial system, "the public has a right to every man's evidence."1 Since the earliest days of the Republic, "every man" has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.

His opinion for the Court concludes:

Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The "guard[] furnished to this high officer" lies where it always has—in "the conduct of a court" applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system. . . .

The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate.

We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Jsutice Kavanaugh, joined by Justice Gorsuch, concurred in the judgment, arguing that the standard for a state criminal subpoena should be the "demonstrated, specific need" test adopted by the Court in United States v. Nixon.

Justices Alito and Thomas each wrote a separate dissent. While neither embraced the argument that the President is immune from the issuance of any subpoena, they both believed the lower court decision should be vacated as the President may be entitled to relief against enforcement of the subpoena while he remains in office.

The Chief Justice also had the opinion for the Court in Trump v. Mazars, and this decision was also 7-2. In this decision the Court rejected the claims of both sides, reaffirming Congressional authority to conduct oversight, but roundly rejecting the claims put forward by the House of Representatives, and vacating the lower court decisions from  the U.S. Courts of Appeals for the Second and D.C. Circuits. Of note, not a single justice voted to uphold the lower court decisions or to embrace the House of Representatives' legal theory.

Chief Justice Roberts opinion for the Court was joined by the Court's four liberals and Justices Gorsuch and Kavanaugh. Justices Alito and Thomas each dissented.

Chief Justice Roberts' opinion for the Court reaffirms that Congress has broad authority to subpoena information to aid it in its legislative function. It also reaffirms that this power—like all legislative power—is subject to limits, and that the lower courts failed to account for or acknowledge such limits. On behalf of seven justices, the Chief called for a more balanced approach.

Congressional subpoenas for the President's personal information implicate weighty concerns regarding the separation of powers. Neither side, however, identifies an approach that accounts for these concerns. For more than two centuries, the political branches have resolved information disputes using the wide variety of means that the Constitution puts at their disposal. The nature of such interactions would be transformed by judicial enforcement of either of the approaches suggested by the parties, eroding a "[d]eeply embedded traditional way[] of conducting government." Youngstown Sheet & Tube Co., 343 U. S., at 610 (Frankfurter, J., concurring).

A balanced approach is necessary, one that takes a "considerable impression" from "the practice of the government," McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); see Noel Canning, 573 U. S., at 524–526, and "resist[s]" the "pressure inherent within each of the separate Branches to exceed the outer limits of its power," INS v. Chadha, 462 U. S. 919, 951 (1983). We therefore conclude that, in assessing whether a subpoena directed at the President's personal information is "related to, and in furtherance of, a legitimate task of the Congress," Watkins, 354 U. S., at 187, courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the "unique position" of the President, Clinton, 520 U. S., at 698 (internal quotation marks omitted).

His opinion then identified several factors courts should consider in evaluating Congressional subpoenas for information from the President, such as his financial records, including whether the "asserted legislative purpose warrants the significant step of involving the President and his papers," and instructed lower courts to ensure that congressional subpoenas are "no broader than reasonably necessary" to support those objectives, including by examining the bases upon which the claims of legislative need are based.

On first read, this approach seems to strike an appropriate balance between the branches. It also seems to be quite a repudiation of the lower courts' opinions in these cases, as well as the unbounded assertion of authority pressed by the House of Representatives at oral argument.

The opinion concludes:

When Congress seeks information "needed for intelligent legislative action," it "unquestionably" remains "the duty of all citizens to cooperate." Watkins, 354 U. S., at 187 (emphasis added). 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. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion

Justices Thomas and Alito each dissented separately. Justice Thomas would have held that Congress has no authority to issue legislative subpoenas for the President's private, nonofficial documents, and can only obtain such documents through the impeachment power (a power the House expressly disavowed in this case). In this respect, his opinion is quite close to that of his former clerk, Judge Neomi Rao, who dissented from the D.C. Circuit's Mazars opinion.

Justice Alito would not go quite as far as Justice Thomas, but argued that legislative subpoenas for a President's personal documents are "inherently suspicious" and must be subject to a more careful review by the courts than the majority opinion calls for.

As a practical matter, these decisions mean that the legal proceedings in all of the financial records cases will continue. The Vance decision is a more decisive loss for the President, but that case involves grand jury subpoenas, so any documents eventually turned over will be covered by grand jury secrecy rules. Mazars is more of a split decision, rejecting the extreme positions adopted by both President Trump and the House. Under the test the Chief Justice articulates, I believe Congress is capable of getting much of the information that it seeks, but it will have to abandon the overly partisan, blunderbuss approach it has adopted to date.

As already noted, I think it's important to highlight the fact that not a single justice wrote separately to support the lower court opinions in the cases consolidated in Mazars. Nor was a single justice willing to write in support of the unbounded House claims that many commentators thought were unquestionably correct. I also think its fair to say that the Chief Justice's Mazars opinion is closer to the two lower court dissents in key respects (those by Judges Rao and Livingston) than to the majorities, in that it took seriously the need for limitations and constraints on legislative subpoenas, grounded in careful consideration of the legislature's stated need for the documents in question.

Do the financial records cases matter politically? I doubt it. I doubt there is anything in the relevant records that would affect the November election, as I doubt they contain anything that would dissuade anyone voting for Trump who is otherwise inclined to support his reelection. Put another way, a voter who is willing to ignore or discount all that we already know about the President, is unlikely to care about (or pay attention to) financial improprieties of the sort these documents might uncover.

But these cases may matter in a different way. By rendering 7-2 judgments in these two cases, and eschewing the partisan divisions that we see throughout our other institutions, the Court has demonstrated an ability to reach careful, balanced judgments on important separation of powers questions with deep political significance. That is a good thing.

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  1. Am I crazy or are there some serious inconsistencies in the two Trump Financial Records cases? (Judging from the syllabus of each case.) It almost seems like the moderate conservatives compromised with the liberals on the court, letting them pick which one to give to Trump and which one not to. How can essentially the same subpoena be not enough of a burden to interfere with the president’s duties (Vance) and potentially quite a burden (Mazar)? Is there even a reason why Vance wouldn’t forward these records to the House straightaway, or why the House wouldn’t subpoena them from Vance as soon as he has them?

    1. How can essentially the same subpoena be not enough of a burden to interfere with the president’s duties (Vance) and potentially quite a burden (Mazar)?

      They directly addressed that in Mazar: “particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.”

      Is there even a reason why Vance wouldn’t forward these records to the House straightaway, or why the House wouldn’t subpoena them from Vance as soon as he has them?

      Presumably Trump would intervene and move to quash the subpoena as the blatant end-run around Mazars that it would be.

      But they really don’t have to. Now that they’re being produced to one party, they’ll be leaked and on the cover of the NYT soon enough. Start your egg timer.

      1. They directly addressed that in Mazar: “particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.”

        Yes, I saw that, but I wasn’t the least bit convinced. How does the same logic not apply to the rivalry between state and federal levels, particularly states that (like New York) are controlled by the president’s opponents?

        1. How does the same logic not apply to the rivalry between state and federal levels, particularly states that (like New York) are controlled by the president’s opponents?

          On a pragmatic level, I don’t disagree. But it’s not clear how they could have drawn nearly as crisp of a line in that context as they did in Mazars by framing it as a separation of powers issue and not having to try to sort out the implications of federalism, etc. in Vance.

          Not yet having read the dissents, the latter seems like a thorny enough issue that it wouldn’t surprise me if the seven majority justices truly saw that as a meaningful distinction between the two cases rather than making some sort of baby-splitting backroom deal.

          1. I would have thought that the Vance “crisp line” would follow McCullough v. Maryland: Whatever power the states might have, the supremacy clause prevents them from interfering with the functioning of the federal government, be it by taxation or by litigation. That means no dice for Vance if what he’s asking is a genuine burden on the president, but a subpoena for papers only isn’t such a burden (as per Trump v. Mazar). In fact, I would have thought that a subpoena to testify (as in Clinton v. Jones, although that was a federal case) is a much closer call.

            1. There is a difference between McCulloch and this. The bank is actually the government. So they were taxing the federal government. The subpoena is for Trumps personal records, that is him as a private citizen not the President. It does seem like they left some room for a specific challenge to a specific subpoena if it is too burdensome and hurts the functioning of the government. They rejected per se immunity and heightened standards.

              1. Yes, and (as per US v. Burr) the president as a private citizen is in principle fair game. But if what the state is asking rises to a level where the president’s ability to fulfill his duties is impaired, you’re back to talking about his official capacity.

                So as far as I can see, this question of “does this specific subpoena materially interfere with the president’s ability to do his job?” should have been the ballgame in both cases. (Or, theoretically, in neither case, if you like the Alito/”a Republican president can do whatever he likes”-approach.)

                1. I think the Court may be right, actually. I am not a huge fan of federalism, but it exists and the courts are always telling us how the states have sovereignty.

                  And sovereignty is different than divided powers. The Supreme Court has a legitimate function in refereeing disputes between the executive and the legislative branch and by drawing the dividing lines between their authority. There’s a lot of room there for policy arguments.

                  But with the states, it is different. Unless the states do something unconstitutional, they get to do what they want to do. So with the states, the federal courts can only intervene if there’s an action that actually is proven to impinge the President’s legitimate powers.

                  Honestly, I think this is a reasonable construction of constitutional powers. It’s actually a problem when, in cases like Bush v. Gore, the Court forgets this.

                  1. There’s no question that the Supreme Court was legitimately refereeing a dispute between the other two branches here. I didn’t get at all what they were saying about how Congress and the White House always managed to sort it out before. So what? There’s a case/controversy now, so decide.

                    But where I disagree is over the basis of that dividing line. As with the states, the limit is the constitution. Congress can ask for whatever it likes, unless it lacks the (implied) constitutional power to do so. Both Trump v. Vance and Trump v. Mazar turned on constitutional interpretation.

                    I think what you’re getting at is that Congress would need a positive power, since (unlike the states) it doesn’t have plenary power to do whatever it likes within certain constraints. But that’s where that “needed for intelligent legislative action” criterion comes in. Once you’re past that, the only thing left to stop either Congress or the States is the President’s need to be able to fulfill his duties.

                    1. “There’s no question that the Supreme Court was legitimately refereeing a dispute between the other two branches here.”

                      Yes there is. I’m raising the question. So did the House. What power should SCOTUS have to get involved at all?

                    2. It’s not just a positive power. There’s a lot of policy questions not specifically answered by the Constitution that the Court can legitimate decide in separation of powers disputes. For instance, there isn’t anything specific about legislative vetoes in the Constitution, but the Court has a lot of authority to come in and decide a case like INS v. Chadha.

                      Indeed, as both the majority and the dissent set forth, the courts have decided issues on the scope of legislative subpoenas going all the way back to at least the late 19th Century. The Constitution literally doesn’t say anything about this. The necessary and proper clause certainly intends some subpoena power, but doesn’t tell us how broad it should be. The Court has to come in and draw the lines.

                      Whereas with the states, the Court’s role is really quite different.

                    3. There’s more than “no question” that INS v. Chadha was wrongly decided. I agree with the White and Rehnquist dissents.

                      The Court certainly does not need to decide the limits of Congressional subpoena power. They can just decline to participate, especially since, as you noted, the “Constitution literally doesn’t say anything about this.”

                  2. I feel like it should be the opposite. As between the state of New York and a coordinate branch, SCOTUS should be more likely to interfere in the former’s attempts.

      2. “they’ll be leaked and on the cover of the NYT soon enough”

        Depends on one’s definition of “soon enough”, I guess. The decision ensured nothing will come out before November, giving the (R) justices some cocktail-party cover.

        1. Yeah, LoB prefers to write his own persecution stories.

          1. And Sarc prefers to write catty, non-substantive comments. Thanks for not disappointing!

            1. So.
              Were you wrong about the NYT leaking or not?

              1. I don’t have a time machine, so it’s hard to say. What did you really intend to ask?

                1. You are positing a NYT leak that is quite unlikely to occur based on the remand in this ruling.

                  Didn’t stop you from popping off a persecution story from outta your hat.

                  When I called you on this pretty common behavior, you responded with denial and insults.

                  If you slowed down a little, you would be less ridiculous.

                  1. Ah, so you didn’t intend to ask anything. Got it.

                    You are positing a NYT leak that is quite unlikely to occur based on the remand in this ruling.

                    Sorry, don’t have time to play “guess what Sarc is thinking” today. Feel free to expand if you have a basis for “quite unlikely to occur” that you’d like to discuss. Otherwise, troll elsewhere.

                  2. You are positing a NYT leak that is quite unlikely to occur based on the remand in this ruling

                    By all means, please elaborate, Sarcastr0. Because I happen to think that there will be leaks to NYT, WaPo and CNN. Why do I think this? The pattern of behavior for the last 3+ years, where we have seen unprecedented levels of leaking. None of us have ever seen anything like it before, because it has never been like this before.

                    I happen to think SCOTUS got the decisions correct, in that the reasoning made sense to me. I would note that the POTUS’ legal team will now get more bites at the apple here, WRT Vance. Every subpoena will be contested now. The case will be in litigation for some time, especially since the docket is so crowded. Now consider this. During this time, who knows what one might discover (and of course, leakreport) about DA Vance.

                    You really don’t think the Manhattan DAs office would leak anything they receive? Particularly if they thought it would materially damage the re-election chances of POTUS Trump? C’mon. You are not that naive.

                    I know that Grand Jury proceedings are totally secret. Yet, information somehow gets out from time to time. People will talk.

                    1. The thing is the tax docs won’t have changed status before the election; no one will have access that didn’t have access before. The case is on remand; the DA’s office won’t get it until well after November.
                      That’s why LoB’s supposition didn’t hold water – I don’t expect a leak because the status quo has not involved leaking and the status quo is preserved with this decision.

                      Also, tax documents are not part of the court drama that has given rise to the generally common leaks. Leaks have largely been coming from inside the WH.

                      My understanding is that grand jury leaks are extraordinarily rare. My understanding comes only from the commenters here who are practicing attorneys, fwiw.

      3. “they’ll be leaked and on the cover of the NYT soon enough.”

        No, the NYT probably already has them, and is wise enough not to print them.

        1. Pentagon Papers case lets media print even stolen items so long as they are not involved in the theft.

        2. If Trump had any balls, he would order the U.S. Air Force to shoot missiles at the Times building, CNN’s headquarters, Facebook’s headquarters Harvard and Yale’s campuses, and every other institution controlled by the left.

          1. So lets assume that there are some left-wing people who run those institutions that deserve to die, even though it would be illegal for the President to order their murder. What about all the collateral damage? Janitors? Support staff? Bystanders? The conservative students at the universities? Conservative commentators at CNN? What if those buildings hold daycares? How many American children would you say it is acceptable for the President to kill?

            1. As I’ve said before, sometimes the ends justify the means. Klinton was willing to kill 80 kids to get at some cult members. Why the double standard?

              1. A double standard assumes I support the actions at Waco. I do not. I was also not old enough to vote for Clinton. So there is no double standard for me. And you always dodge the question with “ends justify the means” without actually getting into the gritty detail of the violence you would actually support or engage in.

                1. Regarding the “gritty detail,” there’s virtually nothing I wouldn’t support if the end result was the full defeat of the left and their poisonous ideas.

                  1. Describe it then. Describe what you would do.

                    1. Look, I know that you and your side supports destroying and exterminating us. I believe in throwing the first punch IF you know you’re about to be hit.

                      Out of respect for this blog, that’s all I’m going to say.

                    2. Lol. I actually don’t. I’m trying to use social shame and an appeal to moral thinking to shame you into rethinking your violent fantasies. You know what I want to happen to people like you? You to become a better person. We can’t all be Fred Rogers, but at least we can not think that hurting people is actually a good thing. If you ever do that, then this will be worth it.

            2. Meh. That’s why real fascists call for helicopter rides. Less messy.

              1. Yes. Torture and murder of a few people is less messy than indiscriminate killing. But it’s still wrong. Would you be personally willing to push someone out of a helicopter? How would you react to the look of terror on their face? Would you do it in front of their children for added effect? What would you tell their family if you ran into them later?

                1. “Would you be personally willing to push someone out of a helicopter?”

                  Who are we talking about, specifically?

                  1. A left-wing college professor.

                    1. Too generic.

                2. Depends on who that “someone” is. Someone evil like Howard Zinn? Absolutely.

                  1. Lucky for you he’s already passed. So which modern person would you kill in front of their children?

                    1. I’m not posting anything that could be construed as a threat

                    2. To be fair, you didn’t say “living person.” So if he was buried, it may at least be possible to excavate and then push Zinn out of a helicopter. (Yikes, the comments sure have taken a turn towards the macabre.)

            3. “Conservative students at universities?”

              ROTF, L….

              1. They were all over my university. Where do you think these young conservative judicial appointments come from?

                1. That was then, this is now — the BITs have exterminated them.

            4. Folks: Is there some reason that people are taking Aktenberg78’s mass murder fantasies seriously? Or is it this all just some elaborate extended joke that’s going over my head?

              1. Indeed.

                Even I’m not taking the bait these days!

              2. Professor,

                I take them seriously because I think casual advocacy for mass violence leads people to be disconnected from the reality of violence itself. People should be confronted with the reality of what they advocate. When wishes for physical and mental pain are just rhetorical devices or punchlines, it’s easier for people to ignore it, endorse its use by others, or engage in it themselves.

              3. Professor: Parody gone seriously awry, in my estimation. The USAF would never do such a thing. The sentiment though is…harsh.

              4. Whether one should engage Aktenberg’s homicidal fantasies is one thing. But if by “taking [them] seriously” you mean believing they reflect his sincere hopes and beliefs, I see no reason to doubt it.

    2. “Is there even a reason why Vance wouldn’t forward these records to the House straightaway, or why the House wouldn’t subpoena them from Vance as soon as he has them?”

      Learn some facts first before you embarrass yourself.

      1. The records are different, NY seeks tax returns, House did not. 2. Criminal proceedings are different from Congressional subpoenas. 3. Grand jury proceedings are secret by law. Vance cannot release them nor can he honor a civil subpoena.

      1. Vance can release them (not legally), but anyone who uses them burns Vance. How desperate are the Dems, and who would prosecute Vance?

        1. Even NY courts will take a very, very dim view of prosecutors releasing grand jury records.

          1. Also: if he’s actually building towards a real criminal case against Trump, the Trump Organization, Trump family members, or other Trump associates, he wouldn’t want to release anything.

            1. if he’s actually building towards a real criminal case

              “Real isn’t about what you have done,’ said the Skin Horse. ‘It’s a thing that happens to a case. When a prosecutor loves it for a long, long time, not just to play with, but REALLY loves it, then his case becomes Real.'”

              With profuse apologies to Margery Williams Bianco.

            2. A real criminal case? Come on. Find me a prosecution where a company took a deduction for an expenditure that did more to benefit its CEO than to actually advance the company’s business objectives. It happens a million times a day, and at most produces an adjustment on audit.

          2. I see you’re unfamiliar with the NY “Judicial” system.

      2. On 1, I relied on footnote 2 in Trump v. Vance: “The grand jury subpoena essentially copied a subpoena issued to Mazars in April 2019 by the Committee on Oversight and Reform of the U. S. House of Representatives, which is at issue in Trump v. Mazars USA, LLP. The principal difference is that the instant subpoena expressly requests tax returns.”

        On 2 and 3, that’s pretty much the reason why I was asking. I’m aware they are different, but I hadn’t thought through whether that was enough to avoid an indirect route. For example, it is not obvious to me (as a matter of first principles) why Congress and the supremacy clause shouldn’t be able to join forces to trump any state law that prevents the release of grand jury proceedings.

        1. As the opinion notes, the traditional privileges rules apply to congressional subpoenas and grand jury secrecy is about as traditional a rule of our legal system has.

      3. If Vance succeeds in getting the returns, and then he or someone in his office leaks them, presumably that’s a crime.

        Is there any reason to think such a crime would be seriously prosecuted? (And if it were, a New York DA employee might still be willing to “take the hit” and become a folk hero.)

        1. Isn’t it terrible when people who commit crimes aren’t prosecuted because they enjoy political protection?

          1. Yeah. Ask Hitlery about that

        2. Whoever they leaked the documents to would never admit which specific person gave them the documents, so it would be impossible to prosecute the leaker as there is no way that Vance will be the only allowed to see them. He could easily claim it must have been a member of his staff that can’t be identified. There would be no recourse.

  2. Section 6103(f) Disclosure to Committees of Congress

    (1) Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation

    Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

    Seems the subpoena of the accounting firm records are to circumvent the limitations of 6103

    1. The President had access to tax records too — and it’s time to eliminate Congress’ access for the same reason.

    2. No tax returns were subpoened by Congress.

      Mnuckin rejected the statutory request. I don’t think the House went to court.

      1. under 6103 tax returns and tax return data encompasses a wide range of data. Not just the tax return, but data that is included in the tax return.

  3. You know what’s going to happen. Trump is going to lose in November, at which point he will no longer be a sitting president, so the case will become moot. Then, the Democrats will spend the next ten years after he leaves office investigating his finances.

    1. I doubt the Democrats would bother. There is more than enough for the SDNY AG office to work on.

      1. Biden, if he wins, is not going to let his administration be caught up in a revenge prosecution. He is dumb but not that dumb.

        Do you think Biden wants Hawley’s AG to investigate him?

        1. Do you think Hawley’s AG is going to care about propriety and norms like that? He’s one of two Republican Senators most likely to take us into American-style fascism. So I don’t think whether Biden demurrers would have any impact whatsoever on a hypothetical Hawley (or Cotton) Presidency.

          1. “He’s one of two Republican Senators most likely to take us into American-style fascism.”

            LOL You must be a google shareholder.

            Hawley is smart. He doesn’t want AOC investigating him so he won’t give her an excuse.

            I am not a big norm guy myself but most politicians like to observe norms that protect them personally.

            1. I’ll grant you he is smart and charismatic. Which is why I think his brand of National Conservatism would devolve into fascism. Although Cotton is the clear winner in the most likely to be the American fascist leader. He’s also smart and charismatic. But in addition, his military experience, his general approval of state violence, his war-mongering, his desire to cause pain (see his actual quotes about why he held up one of Obama’s ambassador nominations), the ease with which he promoted the Volk of Wyoming in comparison to the riffraff of DC, all make him my leading candidate for the next great American fascist.

              1. Or maybe, just maybe, they just have some different views from you and remain ordinary politicians.

                1. Fascists and fascist enablers usually are ordinary politicians. That’s part of the problem. And their views do differ from mine because mine don’t tend to check the boxes on Umberto Eco’s Ur-Fascism list, or line up with the platforms of fascist parties historically.

              2. Hmm, it seems to escape the average leftist that Obama was droning people, citizens too might I add, left and right, and he and his wingman Holder said they could do it on American soil without a trial as well. That’s reeks of fascism.

                (not to mention weaponizing the intelligence community against a political opponent)

                The dark cloud of fascism yada yada you know the thing.

                1. It does not escape my notice actually. And I am thoroughly against it. But fascism is a whole ideology that is directed at conservatives (even though the American ones always try to deny it). Indiscriminate droning and potential intelligence manipulation has very dark shades of authoritarianism that you would also see in an authoritarian left-wing government. But it’s not fascism. Obama wasn’t consistently praising violence and pain. Tom Cotton actually thinks America has an under-incarceration problem. Obama never thought there was a real American Volk that “others” are trying to undermine. Tom Cotton does: see his recent comments on DC and his comments on immigration.

                  And, FWIW, there is no universe in which Tom Cotton is anti-drone.

                  1. “But fascism is a whole ideology that is directed at conservatives”

                    You spelled “allegation” wrong.

                    1. The reason the allegations are thrown is because conservatives are the target demographic for fascist appeals. If it makes you feel better, I’ll also admit that the left is the target for the extreme ideologies of commnunism, Maosism, Leninism, Stalinism, and left-wing authoritarianism ala Chavez, Correa, Morales, etc. But fascist governments come into power with right-wing support because it is heavily around things right-wingers like:

                      Appeals to tradition? Check.
                      Militarism? Check.
                      Extreme Nationalism? Check.
                      Traditional ideals of masculinity and femininity? Check.
                      Anti-immigration? Check.
                      The idea of returning to a mythic past that never actually existed? Check.
                      Hatred of international communism and Marxism? Check.
                      Belief that there is some population that is the true people of the nation to the exclusion of other groups who are trying to undermine them? Check.
                      Simultaneous belief that they are stronger than their effeminate and weak opponents yet victims of their opponents’ devious machinations? Check.

                      And then historically, fascist governments came into power with significant right wing support: Nazi Germany, Italy Croatia, Czechoslovakia, Hungary. (I’d love to here your theories about how Catholic conservatives and fascist leaders like Tiso and Pavlic were somehow left-wing.)

                      Even the non-fascist collaborator state like Vichy France was hard-core right-wing. Same goes for the fascist friendly state of Franco.

                      People should be able to admit that the moderate groups they belong to and susceptible to extremism. And the extremism of the right is fascism. The sooner you admit it, the less problems you and everyone else will have.

                      TL;DR the fascism allegation follows conservatives because historically and ideologically, you are the target for fascist appeals.

                2. Obama a fascist? But I thought you thought he was a Marxist. He is a Democrat after all.

                  1. It might occur to you, Krychek, to read what I wrote. I said that Obama’s droning “reeks of fascism”, not that he’s a literal fascist. And take for example the Nazis….socialist fascists, it’s even in their name in German. Also, you can be, say, a commie in economic policy like Stalin but behave like a fascist dictator.

                    Ever hear of horseshoe theory? Anyway, expand your mind. Wait, don’t bother, you don’t have free will anyway.

                    1. I agree with you that in practice, to the average person in the street, Marxism and fascism don’t look that different. In practice, neither do theocratic Christianity or theocratic Islam. But there are important conceptual differences between the two, so one should try to keep them straight.

                      You’re really got a bug up your butt about my lack of belief in free will. Perhaps you could share why it’s such a charged topic for you.

                    2. Meh. I suppose we sorta agree on the “in practice” bit about commies and fascists. But theocratic Islam and theocratic Christianity don’t look different? Are you so sure about that? The most Christian nations and most Islamic nations, both historically (say France under St. Louis vs. the Ottoman Empire) and currently (say Poland vs Saudia Arabia) are so radically different in policies and in the lives of ordinary citizens, that such a thing to say is nonsensical in empirical reality.

                      Bug up my butt…naw. I’m just making fun of you, and deservedly so. It’s just so stupidly antithetical to your even bothering to type a single word here or anywhere on the internet for that matter. Like you think you can influence people’s opinion’s if they have no free will.

                    3. “theocratic Christianity”

                      Hasn’t existed in 400 years outside of the Vatican.

                      If you think the Vatican is run like Saudi Arabia or Iran, I can’t help you.

                    4. Bob,

                      They’re not necessarily pure theocracies, but plenty of repressive regimes in recent history have had strong religious foundations:

                      Francoist Spain
                      Salazar’s Portugal
                      Vichy France
                      The Ustase government in Croatia
                      Czechoslovakia’s fascist state in WWII was actually run by a Priest…

                    5. mad_kalak, what makes you think I have any illusions about influencing other people’s views? I argue law, politifs and religion because it’s fun and I enjoy doing it. But only rarely does anyone ever actually change their core beliefs.

                      As for the differences between theocratic Christianity and Islam, what LawTalkingGuy said. Also, please bear in mind that you have the benefit of living under a far kinder, gentler Christianity than did, say, the Incas. Or the Scandinavians who were told they could convert to Christianity or be killed. Or the Medici popes. In earlier times, Christianity was every bit as bloody as the worst of Islam. The real difference between the two is that Christianity had a Renaissance and so far, Islam hasn’t. The Medici popes, in possession of Osama Bin Laden’s access to technology, would have made Europe a moonscape.

                      And my bottom line is that I trust no religion with political power. As much as you sometimes chafe at separation of church and state, it has saved much us misery when compared to Europe’s religious wars of the middle ages, the Inquisition, and the witch trials.

                    6. Comparing “religious foundations” and “theocracy” is like saying dogs and giraffes both have 4 legs, a tail, and are mammals. Yea, they have those common, but they are completely different animals. Look up the dictionary definition of theocracy to start with, which is that a diety(s) rules through human intermediaries. That was defiantly not Franco’s Spain. Man, you are really out there, and when someone tries to get down to specifics, there is some serious pettifoggery going on.

                      Also as a matter of pure numbers, Mohammedans have killed, according to historical estimates, about 670 million non-believers since Islam’s inception in Jihad. Christianity hasn’t even come close, even if you include the deaths by disease in the New World as somehow the fault of “Christianity” specifically and not temporal rulers looking for wealth.

                      But hey, Mr. No Free Will But Can’t Help Himself, I also don’t want churches in charge of the government….because it corrupts the church.

                    7. Theocracy is a matter of degree; that Franco’s Spain was not, strictly speaking, a theocracy doesn’t mean it didn’t have theocratic aspects — divorce was illegal, homosexuals were persecuted, the church basically set social policy. And to that extent, it practiced theocratic Christianity.

                  2. mad_kalak : Also as a matter of pure numbers, Mohammedans have killed, according to historical estimates, about 670 million non-believers since Islam’s inception in Jihad

                    I’d be interested in seeing a citation on that. My Google search wasn’t very promising……

        2. Also this consideration : There’s surely much more criminality to investigate in Trump than anyone would ever expect to find with Biden, right-wing masturbatory fantasies notwithstanding.

          Per recent history anytime anyone serious digs into anything DJT – related they find fraud. Witness Trump University and the Trump Foundation. Both entities survived only until they received a small amount of scrutiny.

          1. Fraud, like treason, has a specific definition.

          2. “Witness Trump University and the Trump Foundation.”

            Neither of which led to criminal cases and the civil cases were settled without judicial determinations.

            I think Biden and his AG will not want to waste time and energy on prosecuting a defeated president, leftwing masturbatory revenge fantasies notwithstanding

            1. Trump University and the Trump Foundation

              Those were obvious financial schemes, and I really think that there were problems there. However, it’s hard to get upset about it when the Clinton Foundation was a pay for access scheme which should have resulted in prison time for everyone involved.

              1. You really wanna go there?

                1. The Clinton Foundation is run by an board filled with well-known civic and business leaders. It’s executive officers are experienced in nonprofit and philanthropic enterprises. The Trump Foundation was run by Trump and his family alone, board and officers. The one exception was Alan Weisselberg, listed as the Foundation’s treasurer. The only problem? No one told him. He testified under oath he was unaware of the position the entire plus-ten years he was listed. The Trump Foundation’s “board” went years without meeting.

                2. The Clinton Foundation has stellar rating from charity watchdog groups such as Charity Navigator and CharityWatch, including Platinum & A-ratings on financial transparency and the percent of funds dispensed as charity against money taken in. The Trump Foundation wasn’t even legally registered in New York and was only audited after a newspaper exposed its criminality. That audit discovered Trump had repeatedly looted his foundation for personal gain, including decorations for Trump properties and funds to pay off municipal fines on Trump businesses. Most comical/grotesque/pathetic? Trump used charity funds to pay little Don Jr’s seven-dollar Boy scout fee.

                3. The Clinton Foundation has an awe-inspiring record of good works around the globe, from malaria vaccinations in the Philippines, to new healthcare clinics in India, disaster relief in Nepal and new schools in Senegal. You might as well stop with its AIDS program in Africa, which got drug treatment to over eleven million people who weren’t receiving medication. By the most literal and concrete definition, the Clinton Foundation has saved millions of lives. The Trump Foundation? It bought oil paintings of Donald to hang in his golf clubs and footballs autographed by Tim Tebow.

                1. It was a slush fund to pay the salaries for Clinton staffers during the interregnum and finance trips for the Clintons.

                  “awe-inspiring”

                  Did Hillary write this?

                  1. If you, or some prosecutor, wants to prove that, go ahead. If serious money was taken from the foundation for personal use those doing it should be prosecuted.

                    But we know that Trump used money from the Trump Foundation for personal purposes, and not just to buy a cup of coffee.

                    I admit to not understanding why his actions don’t amount to embezzlement. if the bookkeeper had done it he’d be in jail.

                    1. Oh, well, if personal use of foundation funds is some bright line, how about how the Clinton Foundation paid for Chelsea’s wedding?

                    2. There are multiple source which investigate the Chelsea Wedding canard, but its all one set of facts so this one will do :

                      https://www.washingtonpost.com/news/fact-checker/wp/2017/01/04/did-the-clinton-foundation-pay-for-chelseas-wedding/

                    3. It’s hard to find common ground when you have your reality and I have mine. The wikileaks emails show quite clearly that the Clinton Foundation did pay for her wedding, and former aide’s have said as much.

                      See, you post a WaPo link, and I can post a Fox News link. My version of reality, at the very least, has actual wikileaks emails as proof. Emails that were never intended to be public. Yours has some fine, fine reporting I am sure, from the disinterested fact finders at the WaPo.

                      https://www.foxnews.com/politics/clinton-aide-says-foundation-paid-for-chelseas-wedding-wikileaks-emails-show

                    4. It’s hard to find common ground when you have your reality and I have mine. The wikileaks emails show quite clearly that the Clinton Foundation did pay for her wedding, and former aide’s have said as much.

                      See, you post a WaPo link, and I can post a Fox News link. My version of reality, at the very least, has actual wikileaks emails as proof. Emails that were never intended to be public. Yours has some fine, fine reporting I am sure, from the disinterested fact finders at the WaPo.

                      The problem is that people who work for Fox News are semiliterate — which puts them 50% literacy ahead of people who pay attention to Fox News for information. What that leaked email says is that there was an investigation into whether the Foundation paid for her wedding. (Or, rather, whether foundation “resources” were used for the wedding; it doesn’t actually say anything about “paying for” it.)

                      (BTW, I like how you say “Former aide[‘]s have said as much,” as though there were emails making the claim and then those emails were corroborated by “former aides,” when in fact that’s one piece of evidence, not two separate ones.)

                    5. The problem is that people who work for the Washington Post are semiliterate — which puts them 50% literacy ahead of people who pay attention to the Washington Post for information [except for when the VC was hosted there, naturally]. There were leaked emails by Podesta saying is that there was a threatened investigation into whether the Foundation paid for her wedding and that Podesta “would speak to her and end this” because the investigation was the threat to back Chelsea off. That is, both the aide and Podesta knew it was occurring and didn’t want to “go down this road.”

                      (BTW, I like how I say “Former aide[‘]s have said as much,” because that evidence was the aides and Podesta in the emails…and the aides speaking about it separately to the press, making it two pieces of evidence and not one.)

                    6. Thing is, m_k these two things are not parallel; one is talking about how a potential investigation is not evidence (true), and the other implies that a potential investigation is evidence (false).

                      Trying to bothsides it just highlights how much implication and rumor your side’s media indulges in, and which you lap up.

                    7. mad_kalak : It’s hard to find common ground when you have your reality and I have mine.

                      1. In the Wikileaks emails, one aide (while in the middle of an acrimonious dispute with his employer, the Clinton Foundation) made an unspecific throwaway comment suggesting a problem with the wedding – in the middle of a bitchy private email. That comment does not even say what you claim – that the Foundation “did pay for her wedding”. Go reread your Fox story and you’ll find nothing in it to support that charge. You didn’t even bother to read your own damn link.

                      2. Aside from that single ambiguous comment, nothing in Wikileaks mentions the wedding at all. You say “former aide’s have said as much”, suggesting the plural. Sorry, no aides have said anything like that, including the very author of the whining email himself, Doug Band. Even he didn’t supported his own so-called allegation, despite having broken with the Foundation and formed a competing organization.

                      3. Your Fox story is just a headline unsupported by its following text. It includes the same handful of words examined exhaustively in my link plus unrelated filler. There is not a single fact supporting the wedding charge in your link not found in mine.

                      4. But there’s a ton of evidence in my link somehow that somehow never made it in yours, including multiple accounts from every person involved and the statement of the wedding planner, who ran every single aspect of the event and billed the Clinton family.

                      5. Does it bother you that all the evidence against the Clintons (minuscule, insubstantial & flimsy) made it into my account, but none of the evidence supporting them made it into yours? You’ll say no of course, which just makes you a prime Fox News viewer.

                      Happy to always remain ignorant.

                  2. Africans receiving AIDS treatment were Clinton staffers?

                    1. Collateral benefits.

                      Of course there are other groups doing the same thing including PEPFAR, an expansive US government plan started by GW Bush.

                      These private foundations are all ego stroking vanity projects.

                    2. Just like church-based charities, Bob?

                    3. A couple of points for Bob :

                      1. George W Bush received a lot of applause for his excellent humanitarian work on AIDS in Africa. Despite my general antipathy to his presidency, I’ll happily second that applause. He did some damn good work.

                      2. If someone wants to “stoke their vanity” by saving millions of lives then who the hell has a right to question their motive? That’s what the Clintons did in African : Save lives.

                      Just unclinch your fists and ungrit your teeth. Give it a little thought…..

                  3. Bob from Ohio : awe-inspiring?

                    Normal People : Saving millions of lives? Hell yes!

                    1. PEPFAR does more, your welcome

                2. LOL

                  Weird how corrupt foreign countries stopped giving a quarter billion dollars to Clinton after she lost the election.

                  1. Its awe-inspiring how fast the money dried up.

                    Did those donors suddenly lose interest in AIDS sufferers? I wonder, wonder.

    2. Various law enforcement authorities in New York and elsewhere spent decades investigating him (and fining him) before he became president, so why stop now?

      1. The Trump Foundation was exposed as a complete fraud by a reporter for the Washington Post, David Fahrenthold. Only after he put details of its criminal dealings on the newspaper’s front page did authorities take a closer look. Prior to that, no one even noticed it wasn’t officially registered with the State of New York.

        I think its a safe bet Trump’s past and present is riddled with fraud – unseen only because nobody’s ever dug into the details. In her book, Mary Trump says her uncle embraces ‘cheating as a way of life’. Think he worries about legality while pursuing that quest?

        (my niece speaks very highly of me, btw)

        1. her uncle embraces ‘cheating as a way of life’.

          Cheating and fraud are not the same thing!
          Not everything sleezy is technically illegal.

          1. Not everything sleezy is technically illegal.

            Guys, I think we’ve just identified a great new bumper sticker for Trump supporters.

            1. Think we can fit that on a red cap?
              (His supporters would line up to buy one)

    3. IF Trump loses, he should pardon absolutely everyone, including himself, for absolutely everything.

      1. I hope he does – it will just put a cherry on top of the obvious criminality. “Pardoned felon Barr, speaking from his Virginia bunker, shouted at clouds again today…”

        But your problem here is that he can’t pardon himself for state crimes, only federal.

        1. And it’s far from clear that he can even pardon himself for federal crimes.

            1. It’s never been done, so it’s impossible to know what the courts would say. Maybe he can and maybe he can’t, but until there’s an actual case about it, it’s all just speculation.

              It’s also unclear whether a future president can revoke a pardon. That’s never happened either. I very much doubt Joe Biden would try to revoke it, but it would be an interesting “what if” if he did.

              1. “It’s also unclear whether a future president can revoke a pardon. ”

                It absolutely is clear. See generally Orin S. Kerr, A Theory of Law, 16 GREEN BAG 2D 111 (2012).

                1. As much as I respect Professor Kerr, that’s one law professor’s opinion. We won’t actually know until there’s a case on it. Which I’m not betting will happen any time soon.

                  1. You really need to look up that cite.

                    1. You’re right; I should have.

                    2. Always happy to educate

              1. He probably cannot but “Under the fundamental rule that no one may be a judge in his own case,it would seem that the question should be answered in the negative.” is pretty weak.

                1. So then what’s your better reasoning?

                  1. There isn’t any. I would say that pardoning someone isn’t “judging” them in the legal sense, because it doesn’t involve making any legal findings about them.

                    1. Rather my point. There’s no precedent on point so you need to extend existing norms.

                      I don’t see any other way to go about answering the question.

                  2. “So then what’s your better reasoning?”

                    IDK, I’d have to research first and think about it. Which this AAG seemingly did not. No case cite, one sentence conclusion.

                2. The Constitution says: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

                  1. Yes, that is the argument in favor. The Constitution puts only one limit on the pardon power, which includes self-pardons in Cases of impeachment. If the drafters wanted to ban criminal case self-pardons, they could have.

                    1. Exactly. Or the Senate have removed him via impeachment, at which point he has no pardon power anymore.

                    2. The argument against is that it’s a logical fallacy to say that because X is true, therefore non-X is not true. The “therefore” does not necessarily follow. And, if the drafters had wanted to permit criminal case self-pardons, they could have.

                      I will say again though: This is all speculation until there’s an actual case about it and the Supreme Court resolves the issue. Until then, maybe he can and maybe he can’t. And I hope we don’t have occasion to find out any time soon.

              2. I can’t believe the OLC wrote that entire memo without citing Coke, J in Dr. Bonham’s case. I thought Americans loved that case?

        2. Minor detail; if he is pardoned, Barr will NOT be a felon.
          But then, I am sure facts no longer matter.

          Welcome to the revolution.

          1. What’s Barr even been accused of?

            1. Knowing Trump, mostly.

            2. Dr. Ed: What’s Barr even been accused of?

              Being a shameless whore, mainly….

          2. That’s not actually true. A pardon does not void a conviction; it merely restores civil rights.

  4. Legal opinions aside …

    On this topic I am always amazed at how little concern Trump supporters show over Trump not doing what he promised multiple times to do. We all know their opinions about all this would be completely different if any Democratic president was in office.

    For my part I would be amazed if there was anything that showed illegal activity in them, at least as far as the IRS code was concerned. Even small accounting firms that prepare returns are careful about that let alone major ones.

    What is more likely there is proof about how much he lies about everything. As if we needed more of that. But we already knew that and his supporters don’t seem to care at all so there is no big difference.

    1. Trump supporters either 1) stupidly swallow all his obvious lies, 2) don’t care about them, or 3) see his lying as convincing evidence of his business “toughness”.

      Also . . . the only thing the IRS cares about is tax evasion. They don’t have the authority to investigate anything else and have only very limited authority to hand returns to another prosecuting agency even if criminality is blatant.

      However you might have heard the phrase “follow the money”, for example in connection with the Watergate prosecutions. Transactions seem innocuous on a separate document (such as a tax return) until you “connect the dots”.

      1. There’s a reason people call it a cult after all.

    2. “But we already knew that and his supporters don’t seem to care at all so there is no big difference.”

      It’s more that no one is going to UNDERSTAND his taxes and hence people will cherrypick. I doubt Trump himself understands them.

      His wisest response to A-hole reporters will be “I don’t repair helicopters and I don’t do taxes — go ask the IRS what all that stuff is, they audited it and they approved it.”

      1. The reason cultists need the taxes to stay secret is they don’t wanna confuse people.

        Yeah. Right.

    3. There may well be evidence of financial entanglements with foreign governments that would certainly look bad, whether or not any of them were actually illegal. Though I’m not sure how much Trump cares about what looks bad.

      1. Look, there’s not going to be a W-2 form, or even 1099, from Kremlin, Inc. There may be evidence of his dealings with foreign governments in his (or the T.O.’s) financial records, but in the tax returns?

    4. C’mon, Obama promised, literally, to lower the seas and his supporters loved him till the end. Not to mention the “keep your plan, keep your doc, save $2,500 per family” song and dance routine he repeated.

      As a reluctant Trump supporter, I’m more upset that the wall isn’t fully operational…there was a lot a promises there not kept.

      1. Do you know for sure that at the time Obama said you could keep your plan, that he didn’t subjectively believe that to be true? My memory is that that was the original bill.

        1. See those goalposts move.

          Yes, indeed, Obama was told that the “doc/plan/$2,500” stuff wasn’t true. He repeated the lie because he knew that people wouldn’t support the bill if they had to switch plans and doctors they’ve had for years. Even the HuffPo admits it…they say of his promises, repeated 37 times that it was: “Impossible to keep, and yet arguably critical to secure the passage of the law.”

          1. Your reflexive need to “But Obama” every single topic is becoming embarrassing. If we all agree that Obama committed every sin you are convinced he committed, would you stop doing it?

        2. The bill was neutral on an average person’s typical plan. Certainly no one, Obama included, claimed the ACA would outlaw an insurance company from ever closing out an existing package of costs and benefits – nor require they do so.

          But after the ACA was passed there were many more plans shut down or significantly reformulated than anticipated. Granted, 85% to 90% of people did keep their plan (if they desired) but that remainder of people proved a sizable total.

          So what began as a political slogan signalling the ACA wasn’t going to outlaw someone’s private insurance became a “Lie” (capital L). Certainly, Obama had to know there’d be some turnover, simply because the ACA was trying to ensure a base level of benefits. I bet he was surprised at the extent though.

          To me, it’s kind of a moot point. I’ve worked at multiple jobs the past three decades, usually with small or medium sized firms. In some places we changed plans almost year-to-year, trying to squeeze a few dollars out of soaring healthcare inflation. Obamacare did nothing to change that.

      2. Obama’s original plan did that, before the Republicans turned it into a gift for the insurance companies. After that it was, “you have to buy a plan from the insurance companies” and the insurance companies just raised prices. It was the least free solution to the problem.

        1. “Obama’s original plan did that, before the Republicans turned it into a gift for the insurance companies.”

          No GOP amendment was adopted and no GOP rep or senator voted for it.

          Its all on the democrats.

        2. How exactly did the GOP change Obama’s plan when they weren’t included in the bill’s creation process? If you believe what you just said, you really don’t understand much about how ObamaCare was created and passed.

          1. The Affordable Care Act contained 61 Republican-added amendments.

      3. One misstatement, accurate for most people, versus a not-stop avalanche of self-serving lies and bullshit, but it al balances out for you.

        Here’s what I ask. Are Trumpists willing to give up the claim that he is some sort of genius businessman? I mean, if he were, wouldn’t he be proud to show his handiwork to the world?

        1. If you have nothing to hide comrade, why are you protesting?

          He’s not a business genius, just a wheeler dealer who wins some and loses some. A larger than life figure.

    5. Politicians lie. That is not exactly news. It has only been happening since the founding of the Republic. Granted, POTUS Trump raises this to an art form.

      Mr. Trump was a NYC businessman before he became POTUS Trump. I would be shocked if there wasn’t some crap in there Orbital. In the construction trades? Dealing with NYC unions? Are you kidding me? Listen, I don’t know where you are from, but clearly it ain’t NYC. How do you think anything gets done, and gets done the way you want it? Of course there is crap in there that is right on the legal line. That is what you fine attorneys do for a living. You tell us how to walk that fine legal line all nice-like. Mr. Trump was no different. I personally think he would have been very, very aggressive in walking that line; I base this on observing him for many years now in the local tri-state media.

      At least SCOTUS clarified the limits of a POTUS’ power, which is good, because we want a limit. I do worry about the future, because every POTUS going forward will now have to deal with this. It may start with POTUS Trump, but a POTUS Biden will have the same thing happen. That is bad.

  5. Seems to me that the consolidated congressional cases (Trump v Mazars and Trump v Deutche Bank) are going to be clogged up in litigation for the forseeable future.

    It’s not so clear to me what’s next for the Vance ruling. The WaPo headline is “..Supreme Court says Manhattan prosecutor may see Trump’s financial records” but the body says that the prosecutor may “…pursue a subpoena of the president’s private and business financial records.”

    What does this mean in practice? Vance can go to a court to ask for a subpoena but it’s still subject to legal objections? Thanks.

    1. Vance issues the subpoena on his own, no court involved.
      Happens every day

      Trump can go to court to quash or limit. According to today’s decision, he can now object on the same grounds as anyone else, not under any special president considerations. Which means he loses.

      1. This, I think mostly. Still working through the majority opinion in Vance but I think it only rejects a per se heightened standard rule. It looks like it might leave open the ability for the President to claim special burdens on time that takes away from his duties in a way that normal citizens can’t. But I’m not clear on that yet.

        Still given that the subpoena was issued not to Trump himself but firms in possession of the information, I don’t know that he’ll be able to succeed in that claim if it is available.

        Though more specifically in practice it means that it will likely not be decided before the election, so the big thing that was being fought over is a win for the President.

        1. “It looks like it might leave open the ability for the President to claim special burdens on time that takes away from his duties in a way that normal citizens can’t. ”

          Agreed, seeing language in the opinion allowing Trump to raise president-exclusive issues after all. So I am amending my post.

          I think he still loses ultimately.

      2. Thanks. So Vance issues, Trump files a motion to quash, and the court decides. Any idea how long this usually plays out in court? Weeks? Months? Years?

        [PS – Hello again to all the regulars – I’ve not been following the comments for a couple of years, but I still recognize many of the regulars.]

  6. “Sharp was decided 6-2 in accord with McGirt.”

    So two dissenters in McGirt immediately switch sides. Rigid stare decisis is so stupid.

    1. What’s the difference between normal stare decisis and rigid stare decisis? Also in practice it is irrelevant. Even if they stayed dissenting it would be affirmed anyway by a divided court and McGirt would still stand as the precedent to be followed in the future. This doesn’t seem like the case to die on that hill over.

    2. Why is it stupid?

      The Court said what the law is; the two who insist their individual interpretations still rule are the stupid ones.

      1. “The court was wrong at 10AM, at 10:01 it is correct”

        1. Court opinions change how the law operates when they are released.

          You appear to be having trouble distinguishing between the individual and the institution.

          Given your general philosophy, this is not surprising.

    3. But if Sharp had been decided first, it would be 4-4 — deciding McGirt and hence why didn’t Gorsuch have to recuse himself from both cases, as he decided a case he couldn’t have.

      The larger issue is the asinine ruling — everyone living in Tulsa is now subject to Tribal “Justice”?!? And all the corporations based there are now subject to the (quite corrupt) version of Indian civil justice?!? What the hell happened to the 14th Amendment?!?

      1. My understanding is that tribal territories are subject to federal law. If tribal law contradicts federal law, federal law is ruling law.
        A tribe in WI granted permission for research on hemp. A company planted a large field – 80 acres IIRC – and just before harvest the DEA shows up, cuts down and burns the hemp. The reason given is that marijuana is still illegal under federal law. The hemp was very low THC content and in no way posed an issue with illegal drug use.

        Non-Indians would have recourse in cases of discrimination or violations of federal Constitutional rights.

      2. The ruling doesn’t say any of that. Maybe you should read the decision before making wild claims about it?

        1. You’re new here, aren’t you?

  7. The records should be produced under the condition that if Vance leaks it, he and his family are subject to a capital trial.

    1. And while awaiting trial, Vance should be housed in the same jail as Epstein (who Vance did not prosecute).

      1. What about his family?

      2. Sounds good to me.

    2. His family? How far does that extend? I am consistently amazed at how you love to bring fantasies of indiscriminate violence into everything.

      1. Doesn’t take much for a jackass to quickly give up arguments of the mind for arguments of the fist.

      2. Well, they did threaten to prosecute Flynn’s kid to force a guilty plea. Such things are common practice, right or wrong.

        1. Well Flynn’s kid may have participated in a kidnapping plot so there’s that. And I don’t think our new resident violent psychopath (whatever happened to RestoreWesternHegemony?) is interested in coercing guilty pleas as much as he is interested in executing a lot of people in an orgy of violence to sate his clear bloodlust.

          1. “he is interested in executing a lot of people”

            He is interested in getting responses like yours from people. When he wants to make a reasoned comment, he does so.

            Trolling.

            [though he will likely deny it, which a committed troll will do.]

            1. See Popehat’s law of goats. Even if he is only advocating mass violence ironically or as a troll, he’s still a mass violence supporter.

              1. Yes, his comments reflect badly on him, and any mentally normal person can see that. You constantly engaging with him is just giving him what he wants, and incentivizing him to keep clogging up threads with the drivel.

                1. Exactly. EV just made the same point.

                2. I think it is important to shame advocacy of violence, even on pointless comment threads.

                  1. LTG, I disagree with you on this one. Shame is not part of the universe we’re dealing with:

                    “…[T]hey are amusing themselves, for it is their adversary who is obliged to use words responsibly, since he believes in words. The [trolls] have the right to play. They even like to play with discourse for, by giving ridiculous reasons, they discredit the seriousness of their interlocutors. They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert. If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past.”

                    -Jean-Paul Sartre, “The Anti-Semite”

                  2. “shame ”

                    Good god man, this is the internet. No one here has any shame.

                    1. I blush every now & then (if that counts)

      3. All’s fair in love and war.

        1. How many children would you personally be willing to murder if it got you everything you wanted politically?

          1. Not replying for him personally; but the political part is answered like this;
            “In 2016, the CDC reported 623,471 abortions”

            (Couldn’t find more recent numbers without actual work

            1. Yeah…rationalizing killing liberals cause abortion still makes you a psycho.

      4. WWLBJD — What Would Lyndon B Johnson Do?

      5. I can see where that line of thinking leads, and where it comes from. Send the entire family to Siberia for crimes against the State (or the Dear Leader). Confiscate their property, and award the kids to reliable party members to deal with as they deem appropriate. Totalitarian ideology invariably ends in violence, because right is defined by the State, and those who dare think otherwise are guilty of thought crimes if we believe they are. The only way to achieve utopia is to kill everyone who disagrees. Of course, once the free thinkers are out of the way, the sheep starve and the Dear Leader must amuse himself with violent or depraved public spectacles involving animals.

  8. When it comes to the Native American’s, there really should be an amendment to create a 3rd chamber of congress for them.

    1. That seems out of left field to me. Why, and what purpose would it serve?

      1. For you, it probably wouldn’t serve much purpose at all.

        Today’s Indian children inherit a tribal nation disgraced and humiliated throughout American history. Restoring native sovereignty would restore the Indians claim to their entire native homeland, as a matter of justice.

        1. You’re still not really answering the question. And as a citizen, it would clearly affect me if there were a 3rd house of Congress filled with the remnants of native tribes, so it would serve an intentional purpose.

          Rarely have I heard of a crazier idea (left field being a euphemism for crazy) and I want to know more because it intrigues me, and not because I’m baiting anyone here.

          1. Thomas Jefferson envisioned the United States expanding to the Mississippi river, with the western part of the continent left to the Indians. How crazy is that?

            In the same way slavery was an overlooked evil in the founding era, so what the treatment of the Indians. Some states, such an Pennsylvania, established treaties with the native populations that were never broken. However the vast majority of land was simply appropriated by settlers. It is true the settlement activity transformed the land into the greatest nation on earth, but this is largely due to the abundant natural resources that such a transformation was possible to begin with. These resources were taken as if they were a gift from God, without any consideration for the existing inhabitants.

            If you can’t understand the injustice such an amendment would correct, I can’t help you.

            1. Jefferson’s idea was not crazy in about 1800, when there were actual natives west of the Mississippi. It’s crazy today when there really aren’t any natives left.

              I understand the injustice as it were, in that in America’s first race war, one race lost and the other won. Don’t try that canard of “I can’t help you” in order to avoid answering specifics.

              How would you determine the size of the body?
              How would you determine membership eligibility?
              Would laws have to pass said 3rd house?
              What type of checks/balances would there be?

              These are not unusual questions to ask to someone who proposes the idea of a 3rd house of Congress for the remnants (really remnants of the remnant) of native tribes.

              1. “first race war”

                Bah, when the French and British were fighting, there were tribes on each side. It was about land, not race.

                It was a war of conquest but it wasn’t a “race war”. If they were Viking decendents, there would still have been wars. A million subsistence farmers/hunters were not going to keep the richest continent on earth to themselves.

                1. A million subsistence farmers/hunters would have been more than willing to deal fairly with the newcomers to help develop the country into what it is today.

                  1. Well, that is not what either side thought at the time.

                    The invaders wanted land and came over in huge numbers. There were more colonists in 1776 than there were Indians in the whole eventual US. The numbers gap got worse over time.

                    These settlers interfered with traditional native living. Natives fought back. Rinse and repeat.

                    1. Actually, the natives were adopting the conveniences of settler tools and technology. Horses, guns, hard liquor were all newly introduced and quickly incorporated to the native Americans’ way of life.

                2. “It was about land” also overlaps with (after the American Revolution) one side being all one race and the other side being another race. Thus, it was a race war.

                  It was no different from, as you point out, any of history’s other conquests. Sure, the Spanish tried to incorporate the natives into their empire, and it wasn’t a “war” but a series of repeated engagements over a century or so that one side eventually lost enough land. But then again, the hundred years war was England vs. France on and off again for a hundred plus years and all on one side were French and all on the other side English.

              2. Those questions would be for the Indians to decide. But it would make sense if it were like the senate, were every tribe has two senators. The current senate would be divided into two equal parts. One for the Indians and the other for the states, that is the current senate. All current responsibilities of the senate are now shared between the two sub-senates. The Indians would also gain some representation in the House, based on population. No matter what the system would look like, I think the Indians deserve better recognition in our current system of government.

                1. That even crazier than I thought it could be, especially considering that you have to have a written proposal for representatives to vote on to decide yea or nay. You shouldn’t have an amendment that we work out the detail later after passage.

                  Frankly, since we’d have to live with it, I think the rest of us should have a say.

                  1. Did I ever suggest the “rest of us” shouldn’t have a say? Sorry I fooled you, but I’m just expressing my opinion. I can only hope “the rest of us” includes the native Americans.

    2. I find Gorsuch’s concern for the rights of Indians to be really notable and admirable. He grew up in the West, of course, but somewhere along the line he obviously listened to the complaints of the tribes and realized they had a lot of merit.

      And if you note, he not only votes for the tribes in these cases; he writes very passionately about what this country has done to them. He has a very powerful message- we should keep our promises after having broken so many. It’s really an important addition to the Court.

      1. It’s one reason why judicial diversity in legal background potentially matters a lot. Would this case have come out differently if Gorsuch had been on the DC Circuit as opposed to Tenth Circuit which actually hears all the tribal cases?

  9. This is one of those rare cases where my experience and expertise are relevant. I’ve spent most of my 35 years as a lawyer working as a government tax attorney and I also have experience as a criminal prosecutor where part of my job involved presenting cases to grand juries. I have not read the opinions; I won’t be able to do so until later today. Based on the summaries in this piece and other news stories, I think I understand what the court did. I think I understand the reason for the differing outcomes.
    Regarding the NY State case, the prosecutor can issue subpoenas to the President and his tax counsel but they are only valid to the extent that they involve matters already under investigation: the $130,000 paid to Stormy Daniels. The prosecutor can’t go on a figurative fishing expedition.
    Regarding Congress, the House didn’t even try to show a predicate reason for the information; the mere fact that Trump is President was reason enough to request the returns. This looks a lot like “surfing,” a practice where government officials with access to tax returns would pick a return for a person they are interested in. This is illegal. I had access to returns related to cases I was working on; if I wanted a related return, I had to justify my request and let a superior decide whether I had access. The early computer system at my office did not have safeguards; I could call up the information any time I wanted. But there would be hell to pay if I did this without authorization.

    1. “The early computer system at my office did not have safeguards; I could call up the information any time I wanted. But there would be hell to pay if I did”

      Was there any way that anyone would ever have known?
      Those old COBOL-based systems, at least the ones used in academia, had absolutely no log files so unless you crashed the system in the process of your inquiry, no one would ever know.

      But I’m reading your comment to mean that Vance only has access to the particular form where the Stormy Daniels payoff would have been deducted or not, and not the (likely voluminous) return in its entirety. Right?

      1. Remember that storage was expensive back then — that’s how we got into the Y2K mess — it was too expensive to store all the “19”s in dates so only the last two digits were.

        When the 2000 model year vehicles came out, the State of Maine started issuing titles for “Horseless Carriages” because that’s what anything built before 1925 was legally defined as. The bankers and auto loan companies weren’t amused.

        1. Fun fact: the ‘problem’ of Y2K was known in 1971, when 30 year mortgage projections began.
          In 1970 I was busily changing file layouts and programs to use a two digit year instead of a one digit year.
          Same issue, space was not only expensive, but a card only had 80 columns!

          1. 72 — at least with FORTRAN — the other 8 were reserved for the card reader.

            1. Data cards, not programming languages with line numbers – – – – – –

              1. Even for data, you were wise to reserve a field for sequence numbers for when you dropped that box of cards.

      2. Well, the systems I designed had log files and audit trails, and the security was at the system level.

      3. Originally there was not. Our training even had us call up our own returns as a means of practice. Sometime between 2005 and 2008 this changed. In late 2008 a number of employees filed complaints regarding leaks of taxpayer information to the public. The state inspector general investigated and determined that there had been no leaks. After that happened, the rules regarding “surfing” were broadened and we were told that every search was recorded.

    2. Michael Cohen’s allegations of bank and insurance fraud are also likely to be under investigation and within New York County jurisdiction. Sending this case back to the District Court will not take long for a decision. Indictments will be released on January 21, and the Congressional case becomes moot once he’s not re-elected and there no longer need to release his tax returns for political reasons.

      1. I’m sure President Hillary Clinton can speak to the accuracy of polling and the left wing media’s predictions….

        1. The polls predicted a relatively small edge for Clinton in the national vote, as I recall, and were correct in that regard. Despite being congenitally unable to assemble majority support in the United States, Trump was able to hit a three-cushion trick shot at the Electoral College because our system amplifies yahoo votes.

          I do not expect disaffected, bigoted, stale-thinking conservatives and Republicans to apprehend that point.

          Watching right-wing rubes cling to the ‘polls don’t matter, Trump is going to win’ delusion is no problem; it will make the reality-based world’s verdict that much sweeter.

    3. That “surfing” is illegal when a civil servant does it, but I’m not sure why you think it is/should be illegal when Congress does it. Going on fishing expeditions is sort of part of their job description. How else are they supposed to hold the executive branch to account or decide whether to propose new legislation?

      1. I think there is a substantial argument that courts should avoid trying to second guess the motives of a congressional committee. But the suggestion that anyone was actually going to incorporate this information into a legislative proposal (as opposed to using it to embarrass Trump politically) is a little difficult to take seriously.

        Even Justice Thomas seemed to think that the House could potentially obtain this information through its impeachment power, but they didn’t make that argument in this case.

  10. Lots of discussion on the Trump tax returns, even though that’s almost completely irrelevant. As soon as the democrats are in power (either November or in 4 years, or whenever) Republican attorney general’s are going to sue Biden, and on and on … everyone will flip sides, these cases are pure tribalism. Plain and simple. And nothing is going to get released before the election. Shows what actual commitment everyone has to policy debates: none. That’s sad. I ought to stop following this nonsense seeing how far everything has descended.

    Comparatively little discussion on the fact that because a criminal sex offender happened to stumble upon century old documents no one noticed until now, half of Oklahoma is now an Indian reservation. Most of Tulsa maybe subject to tribal law. All to protect a criminal, and because textualism is apparently more important than common sense. Luckily I doubt it will be very long before Congress disestablishes the reservation.

    1. Actually, it does not seem that the ruling places half of OK under tribal law, just that tribal members are not bound by state laws there.

      (‘seems’ because I have not read the entire ruling, just the reporting)

      1. What constitutes a tribal member? If it isn’t location based, and is instead a racial category … wouldn’t that violate equal protection?

        1. Because the Indians in this are subject to tribal law by membership, not race. As I understand it only applies to the Creek Nation and each tribe decides who is a member of that tribe.

        2. No. I’m oversimplifying a bit, but for many purposes tribal membership is considered a political status, not a racial one.

    2. “Luckily I doubt it will be very long before Congress disestablishes the reservation.

      Occasional Cortex just did the opposite.

    3. Lots of discussion on the Trump tax returns, even though that’s almost completely irrelevant. As soon as the democrats are in power (either November or in 4 years, or whenever) Republican attorney general’s are going to sue Biden

      Why would they have to? I can’t be bothered to check whether he’s already released his tax returns, but if he hasn’t I’m sure he will, just like every other president since Ford.

      1. The case was about more than tax returns, it was generally about the ability to sue more generally.

        If a random attorney general can bring cases against the president, then yeah, Republican attorney general’s will find something, just as the democrats are finding random things to sue over. Power is extended equally. If Republicans can sue, so can Democrats. The partisan breakdown of the commentators is stupid and myopic.

        1. Vance is the DA in the place where Trump lived and headquartered his business for most of his life. It seems totally normal for such a DA to have the ability to investigate criminality of actions Trump or his organization prior to him assuming office.

          If the DA of Wilmington or the AG of Delaware wants to look into some impropriety on behalf of Biden, that seems mostly normal as well. If the idea is that the AG of Arkansas is going to start investigating Biden as some sort of political vendetta because of this Supreme Court decision then on the one hand I wouldn’t be surprised at all, but on the other it’s not a remotely comparable situation.

    4. “Republican attorney general’s are going to sue Biden…”

      He already released his tax returns.

  11. I’m just wondering if Blackman is continuing his drinking binge into today. Waiting with baited breath to hear his take on “Overtime July” as his dire predictions did not exactly come to pass. Who knows maybe we will still see a 2nd Amendment case come out of the summer conferences.

    1. Drinking binge? I have figured Prof. Blackman for a teetotaler whose social life consisted entirely of camping outside Prof. Barnett’s office door, confirming his reservations for Federalist Society events, and persuading himself that friends are overrated.

    2. He’s currently working on part 47 of a 300 part series about these cases.

      1. To be fair, he’s also working on a 25-part report about how one should write 300-part series about court cases. Part one describes his hardware setup. Part two, the software he’s using. Part three will elucidate how he chose the ergonomic chair he’s sitting in to write the piece. And so on.

    3. I think he’s preparing an 11-part discussion of the McGirt case, to be followed by 15-part analyses of the tax decisions, complete with further explanations of offices “under” and “over” and “between.”

      1. But are there edited versions available for the Barnett/Blackman supplement???

  12. I feel kind of sad for the Democrats. After three years of investigations by the FBI and the Special Counsel’s Office, and then 6 months of impeachment, they are left desperately clinging to the hope that something, ANYTHING, will be in the President’s professionally prepared tax returns. When the waterholes were dry, people sought to drink at the mirage…

    1. Everyone on the left thinks the investigations have turned up a ton of stuff; no one thinks the taxes will be any different either in substance or in (lack of) impact.

      But the precedent is a good one; the President is not above the law.

      1. “Everyone on the left thinks the investigations have turned up a ton of stuff”

        People on the left think a large number of false things.

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