Trump loses in Supreme Court — but not entirely.

by John P. Flannery

Mr. Donald Trump is not “absolutely immune” from N.Y. DA Cyrus Vance’s subpoenas for Trump’s tax records held by a third party, so ruled the Supreme Court in a 7–2 decision.

Mr. Vance is fighting in the lower trial court now to get those records to present to the N.Y. Grand Jury in a criminal investigation.

But the same Supreme Court made decisions that will suppress hundreds of thousands of vote in Florida, evoking what the Supreme Court did in Bush v. Gore when it stopped counting ballots in Florida, in 2000, making George Bush President by order of the court, rather than by a vote of the people.

Chief Justice Roberts is struggling to protect the court’s institutional legitimacy but you can’t really be legitimate if you are making decisions that suppress the vote that chooses the president who appoints justices to the Supreme Court.

By way of background, on the decision involving Trump’s tax returns, since the 2016 campaign, Trump has promised to release his taxes.

About a year ago, DA Vance issued a state court subpoena for those tax records in a state criminal investigation.

DA Vance wanted to know how Trump structured reimbursement to his fixer, Mike Cohen, for the hush money payoffs Cohen paid to porn star Stormy Daniels, to conceal Trump’s sexual liaison from the voters.

Vance asked Trump’s accountants.

Trump intervened to complain that he enjoyed absolute immunity as President and sought to kill any subpoena seeking his tax records.

The Supreme Court asked how the President thought he could enjoy absolute immunity if there is no such immunity to be found in the constitution.

The Bronx DA cited how Nixon was forced to surrender tapes of oval office conversations, in US v. Nixon, in 1974, in a criminal investigation.

The Supreme Court decided by a bi-partisan vote of 7–2, that the President is not “absolutely immune” from a criminal investigation.

The court brushed aside Trump’s concern that he would be harassed by other local DAs. Indeed, this decision was unprecedented in the sense that earlier decisions had only involved federal criminal investigations.

The court instructed that Trump was to be treated as any other person served with a subpoena. Somewhat surprising was the fact that Trump’s appointees on the Supreme Court, Justices Gorsuch and Kavanaugh joined the result but Kavanaugh wrote a concurring opinion that they would have preferred a more narrow test, like in US v. Nixon.

Consistent with Roberts’ effort to salvage the Court’s “credibility and legitimacy,” there were several decisions that served his stated objective including a 6–3 historic decision extending protections to LGBTQ persons, in an opinion authored by Justice Gorsuch, saying that the civil rights act prohibited discrimination “because of sex.”

Roberts also joined a 5–4 decision to declare burdensome that Louisiana’s law restricted available abortion providers to just one place in the entire state.

The Court did, however, allow religious employers, by a vote of 7–2, to refuse insurance coverage for contraceptives.

Roberts joined a 5–4 decision to save the hundreds of thousands of “dreamers” from deportation who know no other home but America, brought here by their parents; the Court found that Trump’s effort to close the program was “arbitrary and capricious.”

But the Republican partisan reflex among the members of the Court overcomes too easily the desire to be found legitimate — at least when it comes to suppressing the vote.

First, there was a 5–4 decision that Wisconsin could not order elected officials to count absentee ballots received after election day; the dissent objected that the court could not turn a blind eye to the special and onerous condition of the pandemic affecting voters who could not safely vote in person, and the anticipated delays in a surge of mail-in ballots, that prompted the rule change in Wisconsin.

An equally controversial decision, known to involve hundreds of thousands of votes, was issued by an unsigned order from the Supreme Court, transparently suppressing the vote in Florida this November.

The Supreme Court allowed Florida to bar people with felony convictions from voting unless they paid court fines and fees.

The history of this is striking.

In 2018, the voters in Florida amended the constitution to end the disenfranchisement of felons except for murder and rape — provided that they did their time.

The next year, the Florida legislature, dominated by Republicans, said what is meant by doing your time “including parole or probation” encompasses any fines, restitution, costs and fees.

It was a fair argument that this bill defeated the voters’ intent when they approved a constitutional amendment.

This restriction is quite clearly an unconstitutional poll tax, violating the 24th amendment.

But the court decided anyhow, if you don’t first pay these fees and costs, you can’t vote.

Three justices dissented (Sotomayor, Ginsburg and Kagan) calling this a “trend of condoning disfranchisement” barring participation of felons “simply because they are poor.”

The Roberts court has now barred hundreds of thousands of voters in Florida — and the State reportedly can’t tell who may owe what, if anything, in terms of fines, restitution, costs and fees.

Roberts wants to salvage the Court’s “credibility and legitimacy.”

If he meant it, he should have favored the right to vote, not suppressed it.

JPF