Making sense of yesterday’s complicated Supreme Court deliberations and Congressional testimony

By Robert A. Vella

There were two major events held yesterday in Washington, D.C. having serious political ramifications for President Trump and his administration’s coronavirus pandemic response, plus a few less important ones, which are quite complicated and require some focused analysis to more easily understand.  I’ll attempt to do so here.

First, the U.S. Supreme Court heard arguments on two separate cases (there are other cases outstanding too) compelling an accounting firm and banking institutions to release Donald Trump’s financial records to the House of Representatives (which seeks to conduct congressional oversight) and to the Manhattan District Attorney in New York (which is investigating crimes).  All of the lower court rulings so far have ruled in favor of the subpoenas, but President Trump appealed the cases to the nation’s highest court.  He is desperate to keep those records secret after a wave of media reports indicated that Trump and his family have embarrassing and possibly illegal financial ties to foreign nations (i.e. money laundering).  In the court’s deliberations yesterday, the majority of the justices expressed skepticism towards Congress’ oversight powers but contrastingly rejected Trump’s assertion of “blanket immunity” from investigation and criminal prosecution.  Therefore, the rulings to be announced this summer are likely to be a split decision along those lines;  however, the court’s conservative majority – through procedural actions – might delay the release of the financial records until after the 2020 presidential election.

Second, public health officials in the Trump administration – including Dr. Anthony Fauci – testified before the Senate Committee on Health, Education, Labor, and Pensions concerning the coronavirus pandemic.  Without the intimidating specter of Trump standing over them, the officials were less inhibited in their statements than they were during Trump’s daily press conferences in March and April.  Consequently, they described a much more accurate and serious public health crisis than the rosy picture painted by Trump and his surrogates.  Perhaps more surprisingly, Republican senators did not counter the officials’ statements with rhetorical Trump talking-points (for the most part), and some raised critical questions about the administration’s poor response to the crisis (particularly Utah Senator Mitt Romney).  Apparently, increasing doubt over the GOP’s prospects for maintaining control of the Senate in November is weighing heavily upon them.  Many Republican incumbents see a liability in being too closely allied with Trump at this time.

In other developments, the U.S. Supreme Court is also hearing arguments involving two “faithless electors” cases – one from Colorado and one from Washington state.  These are legal challenges to states requiring that their selected electors vote as they declared they would in presidential elections.  The challengers’ motives are varied, but the goal of attorney and campaign finance reformist Lawrence Lessig is to undermine the Electoral College.  While I’m a strong supporter of Lessig and an opponent of the Electoral College, I tend to agree with the majority of the court’s justices who asserted today that allowing these electors to “vote their conscious” (i.e. change their vote) could cause electoral chaos.

The judge in the Michael Flynn case unexpectedly delayed his ruling on the Department of Justice‘s controversial move to drop the charges.  Although the case will probably be dropped eventually, the judge apparently wants the DOJ to explain its legal rationale (which is highly suspect, to say the least).

President Trump is hypocritically allowing meat processing plants to bring in more foreign workers to offset the shortages resulting from American workers worried about getting infected by COVID-19 in the densely packed factories.  Trump is also pressuring the Centers for Disease Control and Prevention (CDC) to undercount the number of pandemic deaths while some Republican governors are refusing to release important coronavirus statistics.  Coincidentally, Dr. Fauci stated that the actual number of COVID-19 fatalities in the U.S. is much higher than the confirmed figures.

Lastly, the preliminary special election results from last night weren’t at all surprising and didn’t reveal anything relevant to the November elections.  Voter turnout appears to be very low, and this was widely expected given the current circumstances.

Here’s the news:

From:  Supreme Court appears headed for a split decision on Trump taxes, financial records

WASHINGTON — The U.S. Supreme Court on Tuesday seemed prepared to rule that Congress went too far in seeking broad access to President Donald Trump’s personal financial documents but that a New York prosecutor may be able to get his tax records.

The justices heard three hours of argument by telephone conference call, and lawyers for the president seemed to find more traction for their claim that Congress does not have unlimited authority to issue subpoenas, especially when a president may find it distracting to respond.

The Democratic majorities of three House committees are seeking several years’ worth of financial records from Mazars, the Trump organization’s accounting firm, and two banks that loaned money to Trump businesses, Capital One and Deutsche Bank.

[…]

While a majority of the court seemed concerned that the Congressional demands sweep too broadly, seeking years of records from Trump and members of his family, it’s possible the court could allow more narrow subpoenas for personal documents before he became president.

But a clear majority seemed prepared to reject the president’s position in the second case, in which his lawyers claimed that presidents are absolutely immune from any part of the criminal justice system, including a subpoena from a grand jury.

Manhattan’s district attorney, Cyrus Vance, is seeking Trump’s tax records for an investigation of hush money payments made to two women who claimed they had affairs with Trump — allegations the president has consistently denied.

[…]

The court seemed prepared to send the case back to the lower courts to see whether the Vance subpoena seeks material that is essential to his investigation, would be available nowhere else and would not unduly burden the president from carrying out his official duties.

Rulings in both cases are likely by the end of June or early July. But if the lower courts must take another look at whether the records that Trump has fought so hard not to turn over can be obtained by subpoena, a resolution wouldn’t be likely for several more months, and certainly not before the November election.

From:  Supreme Court justices warn that Electoral College cases could lead to ‘chaos’

• Some of the justices of the Supreme Court warned on Wednesday that striking down state laws that require Electoral College voters to follow the will of their state’s popular vote could lead to “chaos” in future presidential elections.

• The justices are hearing two cases brought by presidential electors in Colorado and Washington state who refused to back Hillary Clinton in 2016 despite her victories in those states.

• Like most states, Colorado and Washington both require Electoral College voters to vote in line with the state popular vote.

From:  At Senate Hearing, Government Experts Paint Bleak Picture of the Pandemic

WASHINGTON — Two of the federal government’s top health officials painted a grim picture of the months ahead on Tuesday, warning a Senate panel that the coronavirus pandemic was far from contained, just a day after President Trump declared that “we have met the moment and we have prevailed.”

The officials — Dr. Anthony S. Fauci, the nation’s top infectious disease expert, and Dr. Robert R. Redfield, the director of the Centers for Disease Control and Prevention — predicted dire consequences if the nation reopened its economy too soon, noting that the United States still lacked critical testing capacity and the ability to trace the contacts of those infected.

[…]

They appeared to rattle the markets, driving the S&P 500 down as investors weighed the potential of a second wave of infections against Mr. Trump’s promises that the economy would bounce back once stay-at-home restrictions were lifted. Worrisome reports of spikes in infections in countries like China, South Korea and Germany, where lockdowns had been lifted, seemed to confirm the American officials’ fears.

[…]

Dr. Fauci told senators that coronavirus therapeutics and a vaccine would almost certainly not be ready in time for the new school year, that outbreaks in other parts of the world would surely reach the United States and that humility in the face of an unpredictable killer meant erring on the side of caution, even with children, who have fared well but have recently shown new vulnerabilities.

[…]

Mr. Romney drew an unfavorable comparison between South Korea, which conducted 140,000 tests by March 6 and has had 258 deaths from Covid-19, and the United States, which had conducted about 2,000 tests by March 6.

“I find our testing record is nothing to celebrate,” Mr. Romney said.

From:  GOP split on whether to back Fauci’s or Trump’s assessment on reopening economy

Republican senators are conceding that Dr. Anthony Fauci’s testimony warning about moving too quickly to reopen the US economy is inconsistent with President Donald Trump’s push to “liberate” various states and quickly get the country back to business.

But the GOP is split about whether Trump should be more cautious with his own public statements or if it’s Fauci who is being too much of an alarmist, as Sen. Rand Paul of Kentucky appears to be asserting.

[…]

Nevertheless, Fauci’s testimony warning of “serious” consequences if states move too quickly put some GOP senators in an awkward spot as they try to defend the President’s handling of the crisis while also ensuring their states are not placed at a greater risk by reopening.

From:  Poll: Majority of Americans say coronavirus testing responsibility falls on federal government

As governors across the U.S. loosen restrictions and look to reopen their economies, a majority of Americans think it’s mainly the federal government’s responsibility to ensure there’s adequate coronavirus testing, according to a Pew Research Center survey released on Tuesday.

The majority, 61 percent of U.S. adults, say it’s primarily the federal government’s responsibility, compared with 37 percent who say the responsibility mainly falls on state governments to make sure there are enough tests to safely lift restrictions.

Headlines:

As Trump urges reopening, thousands getting sick on the job

Federal agency gives meatpackers room to hire H-2B workers

Trump is pressuring the CDC to change its death toll methodology and produce a lower figure, report says

Infection rates were climbing at Nebraska meatpacking plants. Then health officials stopped reporting the numbers.

Fauci puts it bluntly: Coronavirus deaths are undercounted

Residents of Low-Wage Red States Collect Biggest Stimulus Checks

Judge in Michael Flynn case delaying decision on DOJ request to abandon prosecution

Former Trump campaign chairman Paul Manafort released to home confinement

Republican Mike Garcia Leads Special Election for Former Rep. Katie Hill’s House Seat