How Trump is turning his five court losses into a win (opinion)

When the DA’s subpoena calling for the tax returns first landed, Trump responded by raising an “absolute immunity” defense, arguing that he cannot even be investigated criminally while in office. The federal courts did not agree, to put it mildly. First, federal district court Judge Victor Marrero — I appeared in front of him many times and he’s as even-keeled a jurist as you’ll find — forcefully rejected Trump’s argument, calling “aspects of such a doctrine repugnant to the nation’s governmental structure and constitutional values.” (0 for 1, for those keeping count). A panel of the Court of Appeals for the Second Circuit concurred, quoting the Supreme Court’s warning in the Richard Nixon tapes case that Trump’s argument, if accepted, would “gravely impair the basic function of the courts.” (0 for 2).
The Supreme Court then granted “certiorari,” meaning it decided to take the case. Once again, Trump lost. This time, it had to hurt a little extra to see both of his own Supreme Court nominees, Justices Neil Gorsuch and Brett Kavanaugh, side against him in a 7-2 ruling. At this point, Trump was 0 for 3. But it wasn’t over yet because, while the Court rejected the President’s specific “absolute immunity” argument, it still left the door open for him to make other arguments against the subpoena.
So down we went to the district court to begin another go-round. This time, Trump tried new legal arguments — he claimed the subpoena was overbroad and meant to harass — and he met with just as little success. Judge Marrero rejected Trump’s challenge (0 for 4) and the Court of Appeals did the same (0 for 5).

Trump now has asked the Supreme Court to take up the case, for a second time. One way or another, this will be the last stop. I doubt the Court will take the case; the Court of Appeals correctly and pointedly noted that the subpoena calls for “run-of-the-mill documents typically relevant to a grand jury investigation.” This language seems purposeful; the Supreme Court generally steers clear of “run-of-the-mill” disputes. And if the Court does take the case, then I see no realistic chance they come out in Trump’s favor, given the merit of his arguments and the Court’s prior 7-2 rejection of his initial claim.

Trump almost certainly will lose this legal battle at some point, likely soon. But ultimately he will prevail simply by jamming up the system. He has appealed, and re-appealed, and re-re-re-appealed. As a result, the Manhattan DA likely will not have the tax returns before Election Day, and the general public certainly won’t see them by then. Credit Trump for this much: he has figured out a way to turn 0 for 5 into a win.

Now, your questions:

Jeff (Idaho): Can Congress reduce the number of Supreme Court Justices, or only increase?

Congress technically can either increase or decrease the number of seats on the Supreme Court. We’ve become used to having nine seats on the Supreme Court, but the Constitution actually does not specify any particular number. Congress has the power to set that number through legislation, and it has exercised that power throughout the nation’s early history; at times, we’ve had as few as five and as many as 10 justices on the Court. But the current law, setting the number at nine, was passed over 150 years ago, in 1869. So while we’ve gotten used to the notion of a nine-justice Supreme Court, Congress does have the power to either increase or decrease the number of seats.

Decreasing the number would run into the practical and legal difficulty of removing one or more sitting justices, who, under the Constitution, serve life terms. If a decrease is the object, then perhaps the only workable solution then is to provide that some set number of vacancies, as they arise, will not be filled, until we are left with the desired number of seats.

Mary (North Carolina): Does the president have authority to issue a nationwide face mask mandate?

Probably. Federal law gives the Secretary of the Department of Health and Human Services the authority to issue regulations that “in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” from foreign countries into the United States, or between states. The President, as head of the Executive Branch, can instruct the Secretary to exercise this power.

That federal government’s authority here is extraordinarily broad. For example, the law permits the Secretary to require “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated.” Logically, if the regulations can go so far as to require extermination or destruction of goods to prevent the spread of disease, then it should also permit a mandatory order that people wear face masks in public, which, if anything, is less drastic and less intrusive.

Daniel (New York): In the line of succession, does the secretary of state or the speaker of the house become president, after the vice president?

Federal law provides that the speaker of the House and the Senate president pro tempore are third and fourth in line to the presidency, followed by the secretary of state. But the Constitution itself provides that only an “officer” can succeed to the presidency, and there is a constitutional question about whether congressional leaders qualify as “officers” given the original meaning and intent of the Constitutional framers. There is some historical support for the notion that “officers” means only Executive Branch officials, and not members of Congress; if so, then the secretary of state, not the speaker of the House, would be third in line of succession. In the very unlikely event that succession ever got that far, we could see a legal dispute that likely would wind up in the Supreme Court.