Feldman: Trump tax return case hinges on John Roberts

Fighting to keep his tax returns secret, President Donald Trump will soon ask the U.S. Supreme Court to grant him “temporary absolute immunity” from any criminal investigation while he's in office. The case sets up yet another test for the court's new swing voter, Chief Justice John Roberts, who is devoted to the principle of judicial restraint.

The federal appeals court that has already rejected Trump's claim understood this perfectly. It issued an extremely cautious, narrow opinion targeted straight at Roberts. That opinion, a minor masterpiece of judicial craft, strongly increases the odds that Roberts will reject absolute presidential immunity. In light of that opinion, I cautiously predict that, if the Supreme Court takes the case, it will hold that Trump's accountant can be subpoenaed by a New York state grand jury to turn over the president's tax records.

The first question is whether the justices will consider the issue of Trump's tax returns at all. It takes four justices for the court to decide to hear a case (“grant certiorari,” in the legal Latin jargon favored by the court).

It's a pretty safe bet that the court's four liberals would be happy to duck this one. The federal district court and the 2nd U.S. Circuit Court of Appeals have both ruled that Trump's accountant must comply with the grand jury subpoena procured by prosecutors from the Manhattan district attorney's office. If the Supreme Court were to decline to take the case, the appellate court ruling would stand. Trump would have to comply. And the court could avoid a potential confrontation with Trump, thus keeping its powder dry for a more serious confrontation - which might well come during the impeachment inquiry.

Conversely, it seems likely that the court's hard-core conservatives, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, will want to take the case. Thomas in particular is an outspoken advocate of maximal presidential power. A state criminal investigation that implicates the president could potentially impede his ability to do his job effectively. Thomas would probably love to issue a broad holding that makes the president absolutely immune from criminal prosecution so long as he's in office. Alito and Gorsuch, who both favor a strong executive, probably wouldn't want to be left out.

The fourth vote to grant cert could come from Justice Brett Kavanaugh. On the one hand, he's a conservative who believes in a strong executive, and he wrote a law review article after his time in the George W. Bush administration arguing that presidents should not have to face civil lawsuits or criminal charges while in office. But on the other, his formative legal experience came while working for independent counsel Ken Starr's investigation of President Bill Clinton, which ended up accusing a sitting president of lying under oath, a federal crime. He may not want to join a sweeping decision declaring total presidential immunity from criminal investigation, preferring instead to let the lower court's narrower ruling stand.

If Kavanaugh decides not to vote to grant cert with Alito, Gorsuch and Thomas, a fourth vote would likely have to come from Roberts. As chief justice, Roberts might think the court can't shirk its responsibility to weigh in on an important issue like presidential immunity. If so, he would vote to hear the case. But as chief justice he would also have to preside over a Senate impeachment trial; thus he might also like to avoid taking this case and let the lower court's ruling stand.

If the court agrees to hear the case, the 2nd Circuit has paved the way for a narrow Roberts opinion - one the liberals (and even Kavanaugh) could join. The 2nd Circuit opinion went to great lengths to avoid the hardest constitutional issue, namely whether a sitting president can be subjected to criminal investigation by a state. It pointed out that the subpoena was issued only to Trump's accountant, not to the president himself. And it noted that previous presidents since Jimmy Carter had all released their tax returns, a good indication that disclosing a president's tax returns while in office would not unduly interfere with the president's ability to do his job.

Most crucially, the opinion framed the issue in the case as only whether presidential immunity bars the “enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the president.” That's lawyer-speak for saying that a decision against Trump wouldn't have to say a word about whether the president is immune from criminal investigation.

In essence, the court of appeals was telling Roberts that the tax returns case can be decided by saying as little as possible. It invited him to hold back from addressing the constitutionally fundamental question of whether a state prosecutor can investigate and criminally charge a sitting president.

That invitation is squarely addressed to Roberts' distinct philosophy of judicial restraint. Roberts believes the court should take the narrowest possible approach in deciding a case. As he has put it more than once, “If it is not necessary to decide more, it is necessary not to decide more.”

The upshot is that the appeals court has teed up a perfect opportunity for Roberts to exercise judicial restraint. The smart money says that, one way or another, he will take it.

Noah Feldman, a law professor at Harvard University, is a columnist for Bloomberg Opinion.

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