For nearly four months, the court has refused to act on emergency filings related to a Manhattan grand jury’s subpoena of Trump tax returns, effectively thwarting part of the investigation.
The Supreme Court’s inaction marks an extraordinary departure from its usual practice of timely responses when the justices are asked to block a lower court decision on an emergency basis and has spurred questions about what is happening behind the scenes.
The Manhattan investigation, led by District Attorney Cyrus Vance, continues to draw extensive public attention. The grand jury is seeking Trump personal and business records back to 2011. Part of the probe involves hush-money payments Trump lawyer Michael Cohen made to cover up alleged affairs. (Trump has denied those allegations.)
For more than a year, Trump’s attorneys have raised challenges to prevent enforcement of the subpoena. The controversy appeared to culminate at the Supreme Court last July, when the justices rejected Trump’s claim that a sitting president is absolutely immune from criminal proceedings.
The 7-2 decision crafted by Roberts left some options for Trump on appeal, but lower court judges have since spurned Trump arguments, and his lawyers returned last fall to the high court for relief. Vance agreed to wait to enforce the long-pending subpoena until the justices acted on Trump’s emergency request.
The Supreme Court’s lack of response has given Trump at least a temporary reprieve.
And his lawyers could soon seek more. CNN has learned that Trump’s legal team is preparing to submit a petition to the justices by early March, based on a standard deadline for appeals, asking them to hear the merits of Trump’s claim in oral arguments.
In Trump’s October filing, his lawyers continued to maintain that the grand jury subpoena was overly broad and issued in bad faith to harass him. They said it “makes sweeping demands and … crosses the line — even were it aimed at some other citizen instead of the President.”
The process for a petition for certiorari, as it is called, could add months to the case. If the justices agreed to hear the dispute fully on the merits, resolution could be a year off.
A spokesman for Vance declined to comment. Lawyers for Trump also declined to comment for the record.
Silence from the court
When the latest round of litigation began, both sides premised their October filings on relatively quick court action and alerted the court to their pact requiring Vance to refrain from enforcement of the subpoena until the justices acted on the emergency request.
The Trump team added that it would abide by an expedited schedule for its petition that the court hear oral arguments on the merits of the case.
The justices did not respond to that offer or to any part of the filing. Typically, soon after an emergency request and response are filed, the justices announce whether they will grant the requested “stay.” (A grant, rather than denial, takes five votes; the filings in this chapter of Trump v. Vance were complete on October 19.)
A majority of the justices might have opted against action close to the November 3 election, to avoid any signal for or against Trump in his quest to keep his tax returns private. But the election, the recounts, the Electoral College certification and the January 20 inauguration have all come and gone.
Now that Trump is out of office, the heart of the case tied to his role as president could be moot, irrelevant as a legal matter. But neither side has raised that possibility in a supplemental filing, nor have the justices raised the question in anything made public. And the election results have been known for months.
In their initial October 13 request, Trump’s lead lawyers noted that Vance had agreed to earlier delays as the case progressed and argued, “His need to secure these records did not somehow become uniquely pressing in the last few weeks.”
Vance’s office countered that the grand jury has waited long enough. The DA’s office argued that the subpoena to Trump accountants Mazars USA had been issued in August 2019 and that the high court has warned in past cases against frustrating the public interest by delaying a grand jury’s work.
“This litigation has already substantially hampered the grand jury’s investigation,” Vance’s team wrote.
Roberts and the expanding conservative majority
Throughout the Trump presidency, cases involving Trump regularly split the justices. Disputes over his administration policies, such as the travel ban, often were decided by 5-4 votes.
Controversies over his personal financial records appeared even more difficult. Yet Roberts was able to convince seven of the justices to join together in the July case of Trump v. Vance.
In elevated language and reference to the great Chief Justice John Marshall, Roberts wrote, “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.”
Roberts emphasized the public interest in comprehensive access to evidence. The majority said, however, that Trump could return to lower courts to assert certain state law claims, including that the subpoena was too broad or issued in bad faith.
Trump’s lawyers indeed pressed those claims in a second round but were rejected by lower US appeals court judges. When a New York-based US appellate court ruled in early October, it said of the financial records sought, “There is nothing to suggest that these are anything but run-of-the mill documents typically relevant to a grand jury investigation into possible financial or corporate misconduct.”
Until October, when Justice Amy Coney Barrett succeeded the late Ruth Bader Ginsburg, the court was divided 5-4 along ideological and political lines. It is now a 6-3 court, with the six Republican appointees generally voting conservative and the three remaining Democratic appointees voting liberal.
On the 5-4 court, Roberts, an appointee of Republican President George W. Bush, was at the ideological middle. That is no longer the situation with the three Trump appointees in place.
That changed dynamic among the justices may be complicating consideration of the new Trump v. Vance case. Even in the momentous July ruling, Justices Brett Kavanaugh and Neil Gorsuch (Trump’s first two appointees) concurred only in Roberts’ bottom-line judgment and expressed a competing rationale that could bolster a president’s ability to fight a subpoena. Justices Clarence Thomas and Samuel Alito dissented.
The possible scenarios involving internal debate over Trump v. Vance are numerous, based on individual interests and regard for institutional integrity. Roberts may believe that airing differences privately over many months represents the best option, although it leaves the parties and public to wait and wonder.
If Trump’s lawyers still have no word by the first week in March, they would submit a petition asking that the merits of the case be put to oral arguments.
Under current rules, apart from the “emergency” framework of this dispute, an individual who has lost in a lower court has 150 days from the date of that decision to petition the justices for review. If the individual has first made an emergency request to block the effect of the lower court ruling, the justices usually would have responded by either granting or denying the stay That’s because the party seeking court intervention would want immediate relief.
Here, however, because Vance agreed to hold off on enforcement of the subpoena, his office, rather than the Trump side, is disadvantaged by the court’s inaction.
The path the justices have taken — or, rather, not taken — has baffled lawyers following the case. Long known for its secretive ways, the court has added a new dimension of mystery with Trump v. Vance.
All that’s evident is the justices have diverged from long-standing practice and hindered the investigation of a former president.