Paul L. Caron
Dean


Tuesday, October 15, 2019

Hemel: How Trump Can Put Off His Tax Return Case Until After The 2020 Election

Washington Post op-ed:  How Trump Can Put Off His Tax Return Case Until After the Election, by Daniel Hemel (Chicago):

A federal appeals court in Washington on Friday ordered President Trump’s longtime accounting firm to hand over stacks of financial documents to congressional investigators. When that dispute reaches the Supreme Court later this year, the justices will face a crucial choice: whether to schedule oral argument promptly and pave the way for a final ruling by summertime, or instead delay a decision until after next year’s general election.

The high court should not let Trump run out the clock. But if a bare majority of the justices wished to, they could. ...

The losing party in a lower-court case has 90 days to file a certiorari petition, potentially allowing Trump to wait until late February to seek Supreme Court review. That’s not all, because the court typically takes several more weeks to consider amicus briefs, the winning party’s response and the losing party’s reply before it decides whether to grant the petition. Washington’s cherry blossoms may be in full bloom before we even know whether the Supreme Court will hear the case.

At that point, the next opening on the Supreme Court’s regular oral argument schedule will probably not be until the beginning of the next term, Oct. 5, 2020, when early voting will have started in several states and the general election will be just four weeks away. By the time the court releases its opinion, Trump either could have already taken the oath of office a second time, or he could be out of the White House and licking his electoral wounds at his Mar-a-Lago resort.

But such delay need not be destiny. The justices can allow Trump’s lawyers to idle — or they can put the case on a much faster timetable and resolve it well before voters must decide whether to reelect the president. ...

There is ample precedent for this accelerated approach. In the 1971 Pentagon Papers case, the Supreme Court issued its final decision a little more than two weeks after the first district court hearing. ... Chief Justice John G. Roberts Jr., who is increasingly the swing vote on a sharply divided court, no doubt knows that this case will be central to the legacy that he leaves. Upholding the House’s subpoena power will help Roberts counter charges that he has been too pliant to this president — but only if his court reaches its result in time for it to matter.

https://taxprof.typepad.com/taxprof_blog/2019/10/hemel-how-trump-can-put-off-his-tax-return-case-until-after-the-2020-election.html

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