ON DECEMBER 13TH, days before the House of Representatives is due to vote on the impeachment of President Donald Trump, the Supreme Court announced it would weigh in on Mr Trump’s quest to keep his business and tax records private. In late March or early April, the justices will hear a trio of cases—two involving the House of Representatives, one a prosecutor in New York—on subpoenas of Mr Trump’s financial documents from his banks and accounting firm. When the decisions in Trump v Mazars, Trump v Deutsche Bank and Trump v Vance arrive by the end of June, impeachment will be yesterday’s news. But the presidential race could be jolted by the sudden release of his long-suppressed financial details.
By historical standards, the court is moving quite fast, if not at the pace set when the special prosecutor in the Watergate investigations sought Richard Nixon’s Oval Office tapes in 1974. Then the Supreme Court held a three-hour oral argument 45 days after the appeal was filed, and just 16 days later the justices returned a 9-0 defeat for Nixon and his claim of “absolute privilege”. Sixteen days after that, the president resigned. This time the records are not directly salient to the impeachment articles. Yet the court has granted all three cases despite not having all the usual briefs in hand and has slotted the hearings into the first open dates on its calendar.
In one sense, the court’s announcement must be a relief for Mr Trump, buying him some time. Had it declined to review any of the three cases, years of Mr Trump’s tax returns and finances would have been sent at once over to the House committees or Cyrus Vance, the Manhattan district attorney. But the move should not reassure the president that he will ultimately prevail. The Supreme Court typically gives presidents a hearing when they ask. But both Nixon and then Bill Clinton suffered resounding losses. When Mr Clinton argued that Paula Jones’s sexual-harassment claim would distract him from his presidential duties, justices in 1997 refused by a unanimous vote to defer her lawsuit until after he left office.
Those two judgments seem ominous for Mr Trump. In some ways, his circumstances seem even less worthy of judicial solicitude than his predecessors’ were. In contrast to both the Nixon and Clinton cases, the subpoenas do not demand anything at all of Mr Trump—they are directed to third parties. And unlike Mr Clinton, Mr Trump cannot point to anything in the subpoenas that would divert him from his presidential duties. In a further contrast to the earlier precedents, in Vance (though not necessarily in the other two cases) the financial records would be kept secret for grand-jury deliberation in New York—and not made public, at least until Mr Trump leaves office.
The current cases raise distinct legal questions. Mr Trump’s claim of “absolute immunity” from all “judicial process” in Vance—which included a straight-faced claim that he could shoot someone and escape investigation while president—has scant precedent or reasoning to recommend it. Not a single judge at the district or circuit court voted for it. But as efforts by Democrats in the House of Representatives to secure Mr Trump’s records from Deutsche Bank and Capital One (his banks) and Mazars USA (his accounting firm) have made their way up to the Supreme Court, four judges have dissented from the judgments against Mr Trump.
The most level-headed demurral came from Debra Ann Livingston, who dissented from a 2-1 decision against Mr Trump at the Second Circuit Court of Appeals on December 3rd. Judge Livingston argued that Congress’s power to conduct investigations for the purpose of legislating is “not unlimited”. Congress may issue subpoenas to gather essential information, but legislators have “no power to expose personal information for the sake of exposure”. The 1958 case setting this limit, Watkins v United States, upheld the rights of individuals during America’s anti-communist panic not to disclose private political beliefs or affiliations. According to Mr Trump’s lawyers, the subpoenas amount to a “dragnet” worthy of a law-enforcement agency, not Congress.
Democratic legislators counter that they have legitimate goals in mind. The oversight committee is considering legislation bolstering ethics rules and would benefit from a look at potential conflicts of interest in the president’s taxes and business records. The intelligence and financial-services committees say they need the information to pursue measures guarding against “foreign influence in our systems for electing officials”. The risk that “hostile state actors will continue to interfere in the American electoral process” is grave enough for lawmakers to have a look at the finances of Mr Trump and his family members. These concerns, House Democrats tell the justices, ought to outweigh the president’s interest in keeping his books private—especially since every president since Nixon has shared at least some financial records with the American public.
So it is far from obvious how the justices will rule in these disputes. The five conservative justices generally favour giving presidents considerable leeway and have been keen to bless most of Mr Trump’s questionable exercises of presidential power. In June, though, John Roberts, the chief, sided with the liberal justices in a dispute over Mr Trump’s drive to add a citizenship question to the census. He is focused on protecting the court’s legitimacy and bristles at the idea that it serves as the president’s rubber stamp. The most recent appointee, Justice Brett Kavanaugh, once mused that the case releasing Nixon’s tapes may have been wrongly decided. But at his Senate confirmation hearing in 2018, he praised the decision as “one of the greatest moments in American judicial history” and drew attention to the effort by Warren Burger, chief justice at the time, to bring “the court together in a unanimous decision” that helped to oust the very man who appointed him to the bench. Mr Trump’s financial-records cases are a profound test of whether Justice Kavanaugh and his colleagues will demonstrate similar independence.