The case before SCOTUS on Trump's tax returns comes down to—at least in oral argument—the following: Trump wants SCOTUS to be a "finder of fact" (which it is not) adjudging Congress to have acted impermissibly.
The progressive justices are looking—as *judges do*—to apply a rule.
The progressive justices are looking—as *judges do*—to apply a rule.
1/ While Trump's lawyer keeps saying that SCOTUS should create a "higher standard" for Congress seeking records for a legislative purpose *when the individual holding the records is a president*, it's not clear what that standard would be, how it would be articulated, and so on.
2/ Trump's case most *clearly* falls apart when his lawyer is questioned about the HPSCI (intel committee) subpoena. The only argument he has is that going back to 2010 is "too far" for the investigation of the 2016 election—and that HSPCI should have subpoenaed other people too.
3/ But SCOTUS won't—nor should it, nor would it *ever*—conduct a fact-finding mission on whether acts relevant to the 2016 election interference scandal might be located in (say) 2012, *nor* will it conduct a fact-finding mission to determine who *else* should've been subpoenaed.
4/ In other words, Trump wants a "Bush v. Gore"-type decision, a decision in which SCOTUS does its own fact-finding, creates an ill-defined new constitutional standard, then says that this new, from-whole-cloth "rule" only applies in a single case and will never be applied again.
5/ Those who understand jurisprudence will understand that—in Bush v. Gore as here—conservatives are flipping their whole (self-professed) judicial philosophy on its head: they're not looking for an existing or readily definable rule, they're looking for a bespoke SCOTUS opinion.
6/ There is no argument whatsoever that this request puts a special burden on the president that might distract him from his work, no argument whatsoever that this request burdens executive privilege, no argument that this request could not be relevant to any future legislation.
7/ Instead, the argument is that—despite the existence of a statute *that Trump is not contesting* regarding the acquisition of tax returns *that doesn't distinguish the president from anyone else*—SCOTUS must hold that a POTUS *must* be given special treatment no one else gets.
8/ But in asking for this *extraordinary* treatment—creating a new rule, from whole cloth, to be applied only to the President of the United States (thereby effectively repealing in part an act of Congress)—Trump *doesn't* suggest specifically what the new rule could possibly be.
9/ Trump's implication, however—via his lawyers—is that the new rule is "SCOTUS conducts a fact-finding inquiry" in which it asks questions like, "Why did Congress ask for records from 2010 not 2009" or "Why didn't Congress subpoena Stone's tax records too?" SCOTUS won't do that.
10/ The good news for Trump: 5 justices on the Court (the conservative justices) have *no judicial philosophy to which they adhere*, and will happily create bespoke opinions that benefit a Republican politician when the cost of not doing so could be a *political* one for the GOP.
