Yesterday,
July 9, 2020 – A Day Which Will Live In History
“...but
when the President does it, it’s not illegal.”
President Richard
Nixon, 1977 BBC
interview.
On
July 8 1979, forty-one years ago this week, the Supreme Court took up
the case of The United States of America vs. Richard M Nixon. At
that time it was the most significant judgment rendered by the Court
involving a sitting President. In spite of what Nixon told the BBC,
the Court ruled unanimously no President is above the law.
Like
it or not, care or not, what came out of the Supreme Court the Ninth
day July in this year of our Lord 2020 is the most important
Presidential court decision since Richard Milhous Nixon died.
Solely
based on this observation, these seem to be the issues involved:
House
of Representatives argued there is both specific legal grounds and
established precedent for subpoena of tax and financial records for
“legislative purposes”.
A specific part of
this was the law stating without
qualification the
Treasury Department “shall” turn over tax returns upon request
from Congress. Trump
attorneys argued, in essence, Congress
exceeded it’s authority and was
on a “witch
hunt” with their
multiple demands for a broad base of documents.
A
second case
involved New York State
investigation into
tax evasion and bank
fraud by
Trump and the Trump businesses.
That is, a charge of
underlying crime for which evidence exist sufficient a court of
competent jurisdiction issued
a legal subpoena.
This
was instigated by the New
York Attorney General
following sworn
testimony of long-time
Trump personal attorney Michael Cohen.
Additional emphasis was given by the exposé of the
Trump family tax
evasion over many years. These
allegations based on
tax and legal documents obtained by a
New York newspaper and
made available to the State.
The Trump attorneys
argued, in essence, the sitting President is above the law and cannot
be ‘bothered’ with legal entanglements (that
is, he could shoot
somebody on Fifth Avenue and not be stopped).
This was the
Nixon-Barr legal theory of “Presidential Absolute Immunity”.
So,
now we have decisions on the two matters before the court. According
to my non-lawyer, as heard on TV summation, this is what I hear the
Court saying:
United
States vs. Donald J Trump, et al;
Court
votes 7-2 to send back to lower courts with clarifying instructions
The
Court confirmed Congress
does have oversight
with subpoena
authority; but, that power “implicates special concerns
regarding Presidential powers”. Lower court must test for
legitimate, pertinent, and clear legislative purposes (that is, no,
Congress can’t just “go fishing”).
Court
votes 9-0 President does not have ‘absolute immunity’ as claimed
The
most historic part of these decisions for some future generation: The
President is not above the law. That is, he can’t, as was
argued by the Solicitor General, “stand on Fifth Avenue and shoot
somebody and not get arrested.” The Court confirmed prescient that,
as would any resident of the United States, the President must obey
legitimate subpoenas and laws.
Left
unclear to this observer, what is status of law requiring tax return
“shall be provided”? Best guess is it got lost in the
‘over-broad’ approach by Democrats.
State
of New York vs. Donald J Trump, et
al.:
Court
voted 7-2
favoring
New York, to be
sent back to lower courts
As
with any lawfully issued subpoena, any
state’s subpoena of the President must
be honored. However,Trump does have option of going back to
District court, which issued subpoena, and present an entirely new
case based on arguments any non-President could make. So, it appears
New York’s subpoena will be executed, maybe, sooner or later. Even
if/when it is, any documentation would be privy solely of Grand Jury,
not for public dispersion. Only if this whole mess goes to trial
would any evidence gathered be made public. The Attorney General of
New York has already announced the investigation, delayed by these
trials, will resume immediately.
No
One Knows What’s Next – It
will certainly be weeks,
months, even
years
before all this shakes
out.
Questions
which must
be asked for
some future generation:
Can
Trump avoid New York state
criminal conviction
by forcing
re-trials
in Court, appealing again to Supreme Court, etc.? In
short, can he ‘run out the clock’ while hoping for re-election or
expiration of Statues of Limitation?
Why
This
Fight?
Why
not just hand over the tax returns as he promised repeatedly to do in
order to get elected?
The
court doesn’t
say he can’t, just that
he must
obey a subpoena.
Is
it just
that
once
again
he’s
‘painted
himself into a corner’ and
cannot admit he’s
wrong?
Do
the
guilty still
“flee when no man pursue”?
Crimes
Are Alleged to have been committed against the state
of New York and the American people. Crimes
which would have
already been
prosecuted if they
had not involved
a sitting
President with
personal fortune and dictatorial command.
Given our
history of delay in getting justice for the wealthy, will
he even live
long enough to be prosecuted for
such crimes, much less be punished?
If
He Is Indicted, can a sitting President be tried by state courts as
would be any other defendant? A Constitutional question I can’t
wait to hear debated.
Will
He ‘Win With His Base’ no matter what? He has already fallen
back on his tried-n-true tweets; blaming “the media” and
Democrats; complaining he is not being treated ‘nice’. Would
getting his devotees to not care a twit what the courts say be seen
as a great victory for and by Trump?
Whatever
TV Networks say pro or con – in 2020 what is acceptable in our
political leaders? Subject for another time and tirade.
If
Trump Defies the Supreme Court (as
both Jackson and Lincoln had done),
will
America
continue
as a democratic Republic; or will
we,
as history
portends,
follow down the road of anarchy leading inevitably
to
an
oligarchy controlled autocracy?
In
the end it comes down to the next day which will live in history,
November 3 2020.
Epilogue
– yet
another conspiracy theory
A
legal matter I’ve
been following since 2016,
not a factor in the current cases,
demonstrates the
continuing pattern of criminal
activity known
to federal and
state investigators:
In
2015 an
investigation
of the
Trump organization for
money laundering, bank
fraud, and
tax evasion is
‘alleged’
to have been underway
by SDNY
division of the Justice Department. It
is neither a state
secret nor
“fake news” the Feds were on to Trump and
the connections to Russia money,
they had
subpoenaed Deutsche
Bank, and were
close to going to a
Federal
Grand Jury. If
I knew of it sitting in Brazil Indiana, surely the Trump people knew
it. In an
interview for “Dark Towers” author
David Enrich
was told by
Deutsche
personnel
they had
gathered the requested documents, but no one came for them. As
of date of that interview documents
were
still in bank’s
vault.
Apparently
by
direction
of the Obama administration, this investigation (being
of non-violent, which-collar crimes) was
suspended
in deference
to Trump
campaign. To
my knowledge no
action has been publicly announced concerning
this
investigation after
January 20 2016, and
believe
status of
any subpoenas also
remains
unannounced.
It
is my personal theory,
not confirmed by
any source available to me,
that the
investigation and convictions of Michael Cohen were by-products of
these SDNY
investigations into
the Trump businesses.
As of today
he has been remanded to prison while reporters were waiting outside
for an anticipated statement from him on
above reference Court rulings.
More on
this to come when he’s served his time, or a new administration
wants to hear what else Mike knows.