His taxes will probably not become public before the election. And that is what he most cares about.
The first reports on Thursday’s Supreme Court decisions dealing with the subpoenas for President Trump’s financial records sounded like bad news for the president in his effort to keep them hidden. But don’t be fooled. There were actually two winners, and you wouldn’t know that from the headlines: the president and Chief Justice John Roberts.
First, Mr. Trump won, because we almost certainly won’t get to see his financial records anytime soon. The decision in the case arising out of the New York State grand jury investigation held that he does not have absolute immunity, but the Supreme Court sent the case back to the lower courts to consider challenges to the subpoenas at issue. Those proceedings will take some time to play out, and even records that are eventually turned over to the grand jury will be subject to secrecy rules. In the case dealing with the congressional subpoenas, Mr. Roberts threw out the lower courts’ decisions and told them to start over, this time with significantly greater deference to Mr. Trump.
So it is highly unlikely that the subpoenaed records will become public before the November election. And that is what Mr. Trump most cares about.
Mr. Roberts, too, comes out a big winner. He gets to posture as nonpartisan — after all, he refused to grant Mr. Trump absolute immunity from subpoenas. He gets to insist that not even the president is above the law. And he even got the entire Democratic wing of the court to provide cover by joining his opinion on the congressional subpoenas. Sure, the delays defeat the entire purpose of the subpoenas, but the judges will piously intone, as they have in the past, that they don’t think about things like the electoral calendar.
The decisions also subtly empower the institution — the judiciary — of which Mr. Roberts sees himself as the reputational guardian. It’s hard to read the two opinions together without getting the distinct sense that he sees the grand jury subpoenas as purer, more righteous, than the congressional ones. The congressional subpoenas, Mr. Roberts suggests, may lack any “valid legislative purpose,” which might allow the legislature to “‘exert an imperious control’ over the executive branch and aggrandize itself at the president’s expense, just as the framers feared.” The implicit message is that only the courts can be trusted.
If Mr. Trump and the chief justice are the winners, then who lost? First and foremost, the people did — we have now lost any realistic chance of knowing about Mr. Trump’s financial dealings before deciding whether or not to re-elect him to the presidency.
And relatedly, Congress lost. Congressional oversight has many purposes, but a central one is to communicate with the public, to make arguments about why certain policies are good or bad and why certain leaders should or should not be trusted. The court has dealt this public-facing role of Congress a serious blow.
Is there anything that Congress can do in the future to make its oversight more effective? There are some things, but first the institution must learn the key lesson of the court’s decisions: Don’t rely on the judges. Instead, Congress needs to rely on tools under its own control.
Perhaps most important, Congress controls the federal purse strings. One way it can use the power of the purse to compel information is by insisting on an information-for-money trade: If the White House is refusing to turn over testimony or documents, either chamber of Congress can insist on a rider in the next round of appropriations bills forbidding the expenditure of any federal funds for, say, the operation of the White House Counsel’s Office.
Sure, the other chamber might try to strip this rider, or the president might threaten a veto of the entire bill containing the rider. But if the chamber seeking the information held firm, ultimately the other institutions would be faced with the choice of either no appropriations bill at all (thus defunding a vast swath of the government) or an appropriations bill with the rider.
Would the chamber stand firm? That would depend on how this fight played out with the public. But in the context of an unpopular president seeking to thwart all congressional oversight, and in the context of a congressional chamber making a targeted use of the power of the purse (going after the White House Counsel’s Office and not, say, the Department of Veterans Affairs), it would stand a good shot at winning the public fight.
But there’s another way, perhaps even less fraught, that Congress can use its power of the purse to enforce information demands if it does some planning. When creating programs in the first place, it can write in requirements that the administration cooperate with congressional oversight in specific ways (as it did, for instance, with the programs created by the CARES Act to respond to the economic disruption caused by the coronavirus).
The president might insist that those requirements are unconstitutional (as Mr. Trump did with the CARES Act). But going forward, as Senator Richard Blumenthal and others have proposed, Congress can write in what lawyers call “non-severability clauses”: essentially, provisions saying that the oversight requirements and the funding itself cannot be separated. If the White House (or the courts) wants to take the position that the oversight is unconstitutional, it’ll have to sacrifice the underlying funds to do so.
The power of the purse is not Congress’s only tool. Under certain extreme circumstances, it can use its own sergeants to arrest those who defy its subpoenas. And depending on the outcome of the November election, Congress may also have the opportunity to pass legislation that would strengthen the role of inspectors general and others who might aid it in its oversight role.
But today’s wins for President Trump and Chief Justice Roberts should make one thing very clear: Whatever mechanisms Congress does choose to buttress its crucial oversight role, it certainly cannot count on the courts to help out.