Has the Supreme Court broken new ground with its last decision of the session? According to The Hill, “The Supreme Court handed down a split decision Thursday that upheld a New York state prosecutor’s authority to access President Trump’s tax returns but dealt a defeat to congressional Democrats who also sought Trump’s records.”  The decision making the President’s tax records “fair game” for release may also invite similar unwanted calls for transparency for the other branches of government.

Talk show host and constitutional scholar Mark Levin explains, “The Supreme Court just opened itself up to congressional demands for the individual justices’ tax returns. . . . The justices will not be able to argue that they are immune as a matter of separation of powers as they just shot down that argument as applies to the president.”  Will this ruling set a new precedent that opens the leaders at the very top of our governing bodies up for more scrutiny of their personal finances? Will any prosecutor with a political ax to grind be able to subpoena records of a president they oppose? How might this create a new layer of political opposition messaging?

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The Hill further breaks down the ruling with five key takeaways from these two rulings:  

Trump’s tax returns are unlikely to become public soon

Members of the public who had hoped the ruling would lead to a swift publication of Trump’s tax returns will be sorely disappointed.

The court’s decision in the New York criminal probe can be said to have cleared the way for Manhattan prosecutors to obtain Trump’s tax returns. But it’s unlikely that prosecutors or the grand jury in that case will receive those materials before additional court battles play out first.

And the public will likely have to endure an even longer wait — beyond the November election, according to some legal experts. In fact, some analysts say grand jury secrecy rules may keep Trump’s financial records under wraps indefinitely, at least until the criminal case ends or some new investigative twist diminishes the need for secrecy.

New York courts are also unlikely to pry the records loose in coming months. Under New York law, a judge can approve breaches of grand jury secrecy if there is a compelling reason to do so, said Richard Lempert, a law professor at the University of Michigan.

“I can’t imagine, however, that a judge would approve the release of Trump’s tax returns on the ground that the voters should see them before the election,” Lempert said.

Court rejects Trump’s claim that presidents enjoy ‘absolute immunity’

Trump’s assertion that presidents are endowed with absolute immunity from criminal probes ran into a brick wall Thursday.

In unambiguous terms, the court said in the New York case that presidents are not beyond the reach of prosecutors.

“In our judicial system, ‘the public has a right to every man’s evidence,’” Chief Justice John Roberts wrote for the majority. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”

Even Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, joined Roberts and the court’s liberal wing to form a 7-2 majority and validate the grand jury subpoena.

According to Steven Schwinn, a law professor at the University of Illinois at Chicago, the decision took the longstanding recognition that presidents can be implicated in federal cases and extended it to the state level. . . .

“A solid majority of the Court — Gorsuch and Kavanaugh included — pushed back at President Trump’s efforts to elevate the presidency outside the ordinary demands of the law,” said Gillian Metzger, a professor at Columbia Law School. “It’s what the Court did in Clinton v. Jones as well.”

Gorsuch and Kavanaugh defy Trump

The decision by Gorsuch and Kavanaugh to reject the president’s claims of immunity and authorize investigations into his personal finances marked a stunning turn of events.

Their votes allowed the court to avoid issuing the landmark rulings along ideological lines. They were also likely to deepen the president’s sense of defeat, given the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future.

And it comes as Gorsuch is still facing heavy criticism from the right over his opinion for a 6-3 majority that ruled civil rights laws protect LGBT employees from workplace discrimination.

Trump has since reaffirmed his commitment to nominating staunch conservatives to the court as part of his reelection campaign, and has vowed to release a new shortlist of potential nominees in the fall. . . .

Trump’s feud with the Manhattan district attorney may be far from over 

Thursday’s rulings resolved some, but not all, of the legal questions surrounding the subpoenas, with the justices punting the remaining issues back down to the lower courts.

Robert Tsai, a law professor and constitutional scholar at American University, said the court’s decision to sidestep certain issues may ultimately spawn additional, perhaps protracted court battles.

“The public may have a right to know, Congress may be able to obtain certain documents and prosecutors may have their day in court someday,” he said. “But it won’t be anytime soon.”

In the New York case, the court said Trump could avail himself of additional state and federal objections to the grand jury subpoena, including issues related to the scope of the document request and the level of burden it would impose to comply with the order.

The court specifically left open the possibility that Trump could “raise subpoena-specific constitutional challenges,” which could see Trump claim the subpoena unlawfully encroaches on his ability to carry out the duties of the presidency.

Schwinn, of the University of Illinois at Chicago, said that argument might lose in court considering the subpoenas were issued to third-party custodians of Trump’s financial records, not the president himself. Still, opening a new fight on that legal front may hold some strategic value given that Trump can continue shielding his records so long as the litigation remains active.

“I imagine he’ll raise some more specific separation-of-powers claim anyway if only to foot-drag this in the courts,” Schwinn said.

Justices affirms Congress’s subpoena power — with some caveats

While the House won’t be getting its hands on the president’s financial records anytime soon, the Supreme Court reaffirmed that Congress has the authority — and even an obligation — to issue investigative subpoenas. That recognition is significant in light of the Trump administration’s repeated challenges over the past year to Congress’s oversight authority.

“Without information, Congress would be shooting in the dark, unable to legislate ‘wisely or effectively,’” Roberts wrote, quoting past Supreme Court decisions. “The congressional power to obtain information is ‘broad’ and ‘indispensable.’ It encompasses inquiries into the administration of existing laws, studies of proposed laws, and ‘surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.’”

That affirmation could help guide other ongoing court battles over congressional subpoenas, including one directed at the IRS for Trump’s tax returns and another from the House impeachment inquiry for former White House counsel Don McGahn’s testimony.

Still, the decision Thursday enumerated several limitations of the legislative branch’s subpoena authority when it comes to information about the president. Specifically, that such information requests cannot be overly broad and must clearly relate to Congress’s legislative interests.

Roberts laid out a list of factors for courts to consider when weighing such subpoenas but stressed that the list was not comprehensive, noting how rarely interbranch disputes have come before the court over the nation’s history.

“Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list,” the chief justice wrote.”

Levin offers additional commentary on the decision:

…the Supreme Court ruled 7-2 to send the Trump tax return case back to a lower court for further arguments.

The opinion stated that “Congressional subpoenas for information from the President” — in this case, Trump’s tax returns — “implicate special concerns regarding the separation of powers.”

The justices said lower courts “did not take adequate account of those concerns.” The ruling vacated lower court opinions upholding the congressional subpoenas and sent the case back for further proceedings.

The justices also set out four points for the lower court to consider, including whether the subpoena “advances a valid legislative purpose” and whether it imposes an undue burden on the president.

Two justices, Alito and Thomas, filed dissenting opinions.

Levin said the Supreme Court should have done “nothing.”

“It should have overruled the lower court and said, hey look — let the political branches duke it out. Let them duke it out. We’re not going to get involved in this. But they did.

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