Rule of Law

OP-ED: The Supreme Court can’t let the coronavirus get in the way of deciding major cases

The Supreme Court was scheduled to hear blockbuster arguments in three cases this week concerning efforts to obtain President Trump’s financial records, but because of the coronavirus pandemic, the court canceled these arguments for the time being. That was understandable. What would not be understandable is if the court delays resolution of these cases beyond the end of its term in June.

Two of the cases concern a set of congressional subpoenas for various financial records concerning Trump, his family and his businesses. The House sought these documents as part of its investigation into whether new legislation is necessary on a variety of issues — from presidential conflicts of interest to questionable banking practices to foreign interference in our election. Trump has challenged these subpoenas in court.

Importantly, these subpoenas are extraordinarily time-sensitive. Congressional terms are two years long, and the current term is already more than halfway over. Once the term ends, any subpoenas that Congress has issued will expire, and Congress will have to start its investigations from scratch with new subpoenas. Thus, Congress needs this information immediately to determine if the information it has requested leads it to believe that legislation is necessary in any of these areas. Indeed, even if the court rules in favor of the House committees by June, that will leave precious little time for Congress to consider these documents and determine whether to pass legislation before a new session of Congress begins in January.

The third case that would have been argued this week is Trump v. Vance, which concerns a grand jury subpoena for Trump’s tax returns and other financial documents as part of an ongoing criminal investigation. The president sued to block that subpoena as well, and this case is also urgent. The grand jury issued this subpoena last August, and its investigation would be incomplete without the requested documents, yet it is now almost April and it hasn’t received them.

In short, these cases must be decided quickly to ensure that Trump is not able to run out the clock and that Congress and the grand jury receive the documents they need to conduct time-sensitive investigations. Supreme Court precedent is against Trump in both cases, yet if the court fails to resolve these cases in a timely manner, that would, as a practical matter, amount to a victory for the president. So what is the court to do? Fortunately, it has options.

First, the court could reschedule arguments for late May, when the public health risk may be lower, and still decide the cases by June. Though this schedule will leave little time between argument and a decision, the compressed timeline is not unprecedented. For instance, in United States v. Nixon, also a case about a president’s compliance with subpoenas, the court heard argument on July 8, 1974, and decided the case just two weeks later on July 24.

Second, even if the court reschedules argument for late May, the justices should be prepared to hold argument by audio and video conference if they determine that in-person argument is still unsafe. This approach has downsides: Oral argument at the Supreme Court is often boisterous and involves frequent questioning of the advocates, and that will be more difficult electronically. Yet numerous courts of appeals have managed to hold arguments electronically during these challenging times, and the Supreme Court can as well.

Third and finally, if the court determines in-person argument to be unsafe and telephonic argument too unwieldy, the court should simply decide these cases on the papers without argument. To be sure, oral argument is important, and this approach would prevent the justices from pressing the advocates on their arguments. But there has been extensive briefing in the cases, both from the parties themselves and dozens of “friend of the court” amicus briefs. Moreover, the court does sometimes issue decisions in cases without holding oral argument, even if generally not in blockbusters like these.

Although none of the above options is ideal, any of them would be preferable to delaying these cases indefinitely. Thus, the court should announce which of these options, or which combination of options, it will adopt, and it should make this announcement soon. That way, the public will understand the path forward and will know that the court will not allow the president to remain above the law.