In a major showdown over presidential powers, U.S. Supreme Court justices on Tuesday appeared divided over President Donald Trump’s bid to prevent congressional Democrats from obtaining his financial records but seemed more open toward a New York prosecutor’s attempt to secure similar records.
The court’s conservative majority signalled concern about improper “harassment” of Trump – who is seeking re-election on Nov. 3 – by three Democratic-led House of Representatives committees seeking his records. In the New York case, the conservative justices joined the court’s liberals in indicating skepticism toward broad arguments by Trump’s lawyer for complete immunity from criminal investigation for a sitting president.
All the subpoenas at the heart of the court’s back-to-back teleconference arguments that lasted about three hours and 20 minutes were issued to third parties – an accounting firm and two banks – and not to the Republican president himself, though he sued to block them.
There is a possibility the court will not simply allow or disallow enforcement of the subpoenas but rather impose tighter standards for issuing subpoenas for the personal records of a sitting president and send the matter back to lower courts to reconsider. This course of action could delay an ultimate decision on releasing the records until after the election.
The court’s 5-4 majority includes two justices appointed by Trump.
Conservative Chief Justice John Roberts could play a potential tie-breaking role in shaping the rulings. Roberts asked questions suggesting skepticism about unchecked subpoena power when applied to a sitting president but also concern about a president evading scrutiny altogether.
Trump, unlike other recent presidents, has declined to release his tax returns and other financial records that could shed light on his net worth and the activities of his family real-estate company, the Trump Organization. The content of these records remains an enduring mystery of his presidency.
Two of the three cases before the justices involved House subpoenas seeking Trump’s financial records from his long-time accounting firm Mazars LLP, Deutsche Bank AG and Capital One Financial Corp. The third involved a subpoena to Mazars for similar information, including tax returns, in a grand jury investigation into Trump conducted by the office of Manhattan District Attorney Cyrus Vance, a Democrat. Trump lost all three cases in lower courts.
Conservative and liberal justices asked a lawyer for the House, Doug Letter, to explain why the subpoenas were not simply harassment and whether Congress should be limited in issuing subpoenas so as to not distract a president or frustrate his official duties.
Conservative Justice Samuel Alito said under the House’s argument there would be “nothing preventing the harassment of a president.”
Liberal justices seemed more sympathetic toward the House but raised concerns about an unfettered ability by lawmakers to subpoena a president’s personal records.
Justices disagreed with arguments by Trump’s lawyers that the subpoenas targeting him were unprecedented, instead pointing to the 1970s investigations involving President Richard Nixon’s Watergate scandal and a 1990s sexual misconduct lawsuit against President Bill Clinton. In two major cases, the Supreme Court was unanimous in refusing to shield those two presidents.
Roberts pressed one of Trump’s lawyers, Patrick Strawbridge, on whether lawmakers can ever subpoena a president’s financial records.
“Do you concede any power in the House to subpoena personal papers of the president?” Roberts asked.
Strawbridge said it was “difficult to imagine” when that would be justified.
Roberts also questioned the value of seeking to assess the motives of lawmakers.
“Should a court be probing the mental processes of the legislators? Should members of House committees be subject to cross examination on why you were really seeking these documents?” Roberts asked Justice Department lawyer Jeffrey Wall.
Trump’s lawyers argued that the House committees had no authority and no valid legislative reason to issue the subpoenas.
“Why should we not defer to the House’s views on its own legislative purposes?” asked conservative Justice Neil Gorsuch, a Trump appointee.
Some justices seemed skeptical of Letter’s arguments that lawmakers possess broad authority to investigate a president for the purpose of writing laws.
“Your test is not much of a test. It’s not a limitation,” Roberts told Letter, adding that the House must recognize it was dealing with a co-equal branch of government.
The House committees have said they are seeking the material for investigations into potential money laundering by banks and into whether Trump inflated and deflated certain assets on financial statements – as his former personal lawyer has said – in part to reduce his real estate taxes.
Liberal Justice Stephen Breyer asked whether Congress, under the hands-offs approach advocated by Trump’s lawyers, would have been able to properly investigate the Watergate scandal that drove Nixon to resign. Congressional investigators probing Watergate were, Breyer said, given “a pretty blank check.”
Liberal Justice Elena Kagan said where personal records are concerned “the president is just a man.”
“What it seems to me you’re asking us to do is to put a kind of 10-ton weight on the scales between the president and Congress, and essentially to make it impossible for Congress to perform oversight and to carry out its functions,” Kagan told Strawbridge.
In the New York case, Kagan told Trump lawyer Jay Sekulow it is a “fundamental precept of our constitutional order that the president is not above the law.”
Justices seemed receptive to the position taken by the Justice Department, which supports Trump but did not argue for blanket immunity.
Gorsuch questioned why the Supreme Court would give Trump immunity in a criminal investigation when it did not give Clinton immunity in the 1997 ruling concerning the sexual misconduct litigation.
“How is this more burdensome than what took place in Clinton v. Jones?” Gorsuch asked, using the name of the case. “I guess I’m not sure I understand that.”
Sekulow responded that criminal cases can result in a loss of liberty while civil lawsuits can lead only to monetary damages.
Rulings are likely within weeks. The teleconference format was adopted during the coronavirus pandemic.
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