Thread by @steve_vladeck

1. As early as this afternoon, #SCOTUS is going to decide whether to grant @realDonaldTrump's application to stay (freeze) the subpoena issued by the House Oversight Committee to Mazars for some of his financial records.

Here's a #thread on what that means and on why it matters:

2. The district court and D.C. Circuit both rejected Trump's effort to block Mazars from complying with the House subpoena, and the full D.C. Circuit ruled last week that it would not rehear the President's appeal—a ruling that would have gone into force this Wednesday (11/20).

3. To prevent that from happening while he appeals those rulings to #SCOTUS, Trump asked #SCOTUS for a "stay," which, if granted, would leave the subpoena on hold while the Court decides whether to take up his appeal on the merits (and, if so, while it decided those merits).

4. On Monday, Chief Justice Roberts (who is the "Circuit Justice" for cases coming from the D.C. federal courts) issued an "administrative" stay—a temporary freeze of the status quo for long enough to allow the full Court to vote on Trump's stay application one way or the other.

5. The Chief Justice also ordered the House to file an opposition to Trump's stay application by yesterday, presumably so that the Justices could consider the matter when they meet at their regularly scheduled Conference later this morning. That's why we may hear something today.

6. But what happens now? Unlike granting "certiorari" (agreeing to take up a case), which takes four votes, it takes the affirmative votes of _five_ Justices to grant a stay. And in voting on a stay application, the Justices balance a series of factors:

harvardlawreview.org/wp-content/upl…

7. The key here is that Trump's likelihood of success on the merits is just _one_ of the factors the Justices are supposed to consider. The Court also pays special attention to concerns about "irreparable harm," namely, what would happen to the parties if it doesn't issue a stay.

8. That could be the key consideration here. Because Trump is challenging a subpoena, if it's enforced even while his challenge remains pending, there's a decent argument that it's impossible to un-ring that bell—because the records the House seeks would have been turned over.

9. To be sure, the House in its opposition argues (quite powerfully) that it (and the country) will suffer irreparable harm from _not_ allowing for immediate enforcement the subpoena, so this analysis is not one-sided:

supremecourt.gov/DocketPDF/19/1…

10. But #SCOTUS historically has shown great _procedural_ deference to the President in cases in which he's personally involved—bending over backwards to give him every reasonable accommodation (and even some unreasonable ones) even when it ultimately ruled against him.

11. With all that in mind, here are three big takeaways:

First, I think that it's more likely than not that the Court _will_ vote to stay the subpoena pending disposition of the President's (forthcoming) cert. petition, freezing the subpoena for perhaps several months.

12. Second, given the above, it would be a _significant_ mistake to read too much into such a move, even if there are dissenting votes.

A stay _would_ tell us that #SCOTUS intends to take the case, but it would _not_ tell us anything about how it's likely to rule on the merits.

13. That is to say, even if #SCOTUS puts the subpoena on hold for another few months, that could just as easily be a reflection of the Justices wanting to show special procedural solicitude to the President as it could be a preview of whether they're going to rule for him or not.

14. Third, if #SCOTUS votes to deny the stay, that _would_ tell us that it does not (1) intend to take the case; or (2) think Trump has any real likelihood of prevailing even if it does.

Unlike a grant of a stay, a denial would be an enormous headline—and a huge loss for Trump.

15. Finally, even if the Court grants a stay, it's likely to expedite the timing of Trump's cert. petition. By rule, Trump would have 90 days from the D.C. Circuit's ruling last week to file his cert. petition, which would effectively prevent #SCOTUS from hearing it this Term.

16. In contrast, the House has suggested, if a stay is granted, that #SCOTUS set a briefing schedule that would allow it to decide whether to take the case on the merits at its December 13 Conference—so it could easily be argued and decided this Term:

supremecourt.gov/DocketPDF/19/1…

17. Thus, the only thing we'll know for sure if #SCOTUS sides with Trump today is that it's going to resolve the merits of his appeal, probably by June 2020. As for _how_ those merits would be decided, no one should assume a grant of a stay today is in any way predictive.

/end