On Tuesday, the Supreme Court of the United States heard arguments in three appeals relating to subpoenas issued by congressional committees and a New York prosecutor demanding Trump release his tax returns and other financial information in a case which strikes at the core of the US Constitution and the limits of executive power.
Appellate courts in both Washington and New York have already ruled against Trump but he hopes the Supreme Court will reverse those decisions. The argument before the Supreme Court centred around whether Congress had the authority to issue subpoenas and the extent to which executive privilege protected the president from subpoenas.
In the past, the US Supreme Court has ruled unanimously in two landmark cases to limit executive privilege. In 1974, in United States v Nixon the court held there was no “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances” and ordered Nixon to turn over the Watergate tapes.
In another landmark case in 1997, in Clinton v Jones the court allowed a sexual harassment lawsuit to proceed against President Clinton holding there was no executive immunity from civil claims against the president.
However, a lot has changed since those cases, the court has become deeply entrenched in partisanship and has a 5-4 conservative majority. Trump has utilised his presidential power to appoint loyal judges enabling him to act with impunity and escape any semblance of accountability.
Trump has become increasingly dangerous as his term progresses and has been emboldened by his Senate acquittal. He believes he is above the law and he is right: his administration has persistently obstructed criminal investigations without consequence and Congress has persistently refused to stand up to him. His campaign rhetoric that he could shoot someone on fifth avenue and not lose any votes is sadly his only truthful statement.
Now it has fallen to the Supreme Court to reign Trump in; in the past, the Supreme Court has always upheld the rule of law against a president intent on undermining it. However, the increasingly politicised nature of the Supreme Court may allow Trump to win his battle.
The UK must heed the warning arising out the US: the dangers of a politicised court. Recent US history demonstrates the problems with a partisan judiciary and how it can give an unruly executive with a god complex power over all three branches of government. In the wake of recent UK Supreme Court rulings, many are displeased with the judiciary, but if Trump has demonstrated anything, it is our independent judiciary and the rule of law must be fiercely defended.
A victory for Trump in this case would bring the US to the brink of Trump’s authoritarian dystopia where he as Supreme Leader can act with total impunity. If the Supreme Court rules in Trump favour, it will have forever lost its moral authority and it will reinforce the principle that justice like democracy in America is nothing more than an illusion.