By Andrew Chung and Lawrence Hurley
WASHINGTON (Reuters) – President Donald Trump’s fondness for the U.S. Supreme Court could be tested by a series of legal disputes targeting him personally – from his taxes and businesses to his 2016 election campaign – that ultimately may be decided by the justices.
Trump has viewed the court, whose 5-4 conservative majority includes two justices he appointed, as friendly territory, unlike certain lower courts and individual judges he has publicly criticized after ending up on the wrong side of rulings. The Supreme Court already has given the Republican president victories on some pivotal policies including upholding his travel ban targeting people from several Muslim-majority countries.
But as the focus of some of the major legal challenges shifts from his policies to Trump himself, there could be disappointments in store for him, according to some legal experts, in particular if the Supreme Court stoutly defends the ability of Congress to pursue investigations of the president.
The conservative justices “won’t feel any loyalty to Trump, but will instead support strong separation of powers” as delineated in the U.S. Constitution assigning specific roles to the government’s executive, legislative and judicial branches, said conservative legal scholar J.W. Verret, an expert in corporate and securities law at George Mason University in Virginia.
“That means upholding lower court decisions finding proper legislative purpose in recent inquiries regarding tax and financial fraud subpoenas,” Verret added.
Trump, who is seeking re-election in 2020, and his administration have defied a series of subpoenas coming from the Democratic-led House of Representatives. The subpoenas have sought testimony from current and former administration officials as well as documents covering matters such as his tax returns, banking records, family business interests and Special Counsel Robert Mueller’s report on Russian interference in the 2016 election and Trump’s actions to impede the inquiry.
The president and his lawyers have defiantly challenged the oversight authority of Congress, a stance that Democrats have framed as an attack on the separation of powers.
Trump has sued to try to block enforcement of certain subpoenas, losing thus far in lower courts. And House Democrats, who are divided on whether to launch the impeachment process set out in the Constitution to remove a president from office, appear poised to press the matter by bringing their own court actions to try to enforce their subpoenas.
Other lawsuits, including one brought by congressional Democrats, also accuse Trump of violating an anti-corruption provision in the Constitution, called the emoluments clause, by continuing to accept payments from foreign governments through his businesses including a downtown Washington hotel.
Some of Trump’s losses in lower courts already are on appeal, and potentially could come before the Supreme Court with decisions issued during the heat of the election season.
Stuart Gerson, a Republican former Justice Department official and former acting U.S. attorney general, said the Supreme Court might be sceptical if the aim of subpoenas by Democratic lawmakers is merely to “educate the American people and build up a tide for impeachment that doesn’t exist now.”
“There’s no black and white,” Gerson added. “It will be ‘win some, lose some,’ and the Supreme Court, I think, given its precedent, will define a middle ground.”
William Consovoy, Trump’s lead lawyer on cases involving his business dealings, did not respond to a request seeking comment. The White House declined to comment for this story.
Trump has professed his faith in the Supreme Court and the importance of a president’s role in making lifetime appointments to the top U.S. judicial body. Trump has said his promise to name conservative justices was a “main reason” why he was elected in 2016. His two appointees, Neil Gorsuch and Brett Kavanaugh, have deepened the conservative hold on the court.
Aside from the travel ban, Trump’s policy victories at the Supreme Court have included implementation of his ban on most transgender people in the U.S. military and blocking Commerce Secretary Wilbur Ross from being deposed in a lawsuit over the contentious plan to add a citizenship question to the 2020 census. His administration has sought to bypass lower courts by rushing certain appeals of adverse rulings to the high court.
Trump’s lawyers have justified stonewalling subpoenas by arguing that the Democratic demands exceed congressional authority, are overly broad or improperly invade Trump’s private affairs. Federal judges have rejected those arguments, citing Supreme Court precedent that Congress has broad authority to investigate corruption or improper conduct in the workings of government.
If federal appeals courts uphold judges’ rulings that side with Congress, Verret predicted the Supreme Court would deliver “either a 9-0 outcome in support” of the lower courts or would simply refuse to hear the administration’s appeal, leaving the lower court rulings intact.
“This goes to precedent involving core congressional oversight power,” Verret added.
So long as they do not impede a president’s duties, demands from Congress for documents that could cause embarrassment or political problems do not provide legal grounds to refuse to comply, added William Ross, who teaches constitutional law at Samford University in Alabama.
The Supreme Court’s first taste of the fight between Trump and congressional Democratic could come in two fast-moving cases.
Trump is trying to block subpoenas for financial records that were issued to his accounting firm, Mazars LLP, and two banks with which he has done business: Deutsche Bank AG and Capital One Financial Corp. Judges in Washington and New York, respectively, ruled that the subpoenas could be enforced. Trump has appealed in both cases and could seek to bring them to the Supreme Court if he keeps losing in lowers courts.
The emoluments issue also could be heading towards the justices. The Supreme Court will likely have the final say concerning potential conflicts of interest tied to Trump’s Washington hotel and other business interests “because courts have never had to deal with this in 200-plus years,” said Ciara Torres-Spelliscy, a law professor at Stetson University College of Law in Florida.
(Reporting by Andrew Chung and Lawrence Hurley; Editing by Kevin Drawbaugh and Will Dunham)