The Supreme Court arguments on Tuesday, held over telephone and broadcast live, over subpoenas of President Donald Trump’s financial records were indeed historic, leading the justices and lawyers to grapple with nearly 250 years of American history, investigations of presidents and questions about the future of separation of powers.
The cases tackled whether Trump can stop the Democratic-controlled House of Representatives from getting his tax and banking records from an accounting firm along with two banks he used and whether the President can halt a grand jury investigation in Manhattan that seeks his tax records. Rulings are expected this summer.
Lawyers from Trump’s Justice Department, attorneys representing the President himself and lawyers representing the House of Representatives and New York district attorney’s office were all on the phone for the session that lasted three hours and 22 minutes.
Here are the key takeaways.
Justice Department wants to raise the bar for subpoenas
Justice Department attorneys argued the office of the presidency should be afforded a deference, or higher standard, than an ordinary citizen who receives a subpoena, whether from lawmakers or prosecutors.
In the case of the subpoenas from the House, Jeffrey Wall, the principal deputy solicitor general, argued that Congress needs to explain what laws it might write in order to substantiate a subpoena.
“It’s not much to ask that before the House delves into the President’s personal life it explain, in some meaningful way, what laws it is considering and why it needs the President’s documents in particular,” Wall said.
Justice Ruth Bader Ginsburg noted that Wall was essentially placing more trust in cops on the beat than elected officials in Congress.
“To impugn Congress’s motive, even the policeman on the beat, if he stops a car and gives the reason that the car went through a stop sign, we don’t allow an investigation into what the subjective motive really was. So, here, you’re – you’re distrusting Congress more than the cop on the beat,” Ginsburg said.
As for the New York grand jury subpoenas to Trump’s accountant and banks, the Justice Department argued even though they didn’t require the President to turn over his own records – the records are held by his accounting firm and banks – it was still unduly burdensome.
Solicitor General Noel Francisco told the justices that local prosecutors need to show why the information they seek is necessary and relevant to the investigation before they can burden the President. Because otherwise, a prosecutor is “creating a serious risk of harassment,” he said.
“And if you multiply that by 2,300 prosecutors across the country, I think that the risk to the presidency is quite obvious,” Francisco added.
Carey Dunne, an attorney in the Manhattan district attorney’s office, replied, “There’s really no empirical basis in history for this, this apocryphal prediction” of a “parade of horribles.”
“As a practical matter this notion that there are 2,300 prosecutors out there writing with subpoena pads open, there’s just no basis to think that an army of local prosecutors like that would even have jurisdiction over a president especially for private conduct,” Dunne said.
Trump wants total immunity while in office
Trump attorney Jay Sekulow went further than the Justice Department, saying bluntly that, “We’re asking for temporary presidential immunity” while the President is in office. Subpoenas from Congress or state grand juries, he said, are too burdensome on the President’s official duties.
Justice Stephen Breyer challenged Sekulow, noting that it was more likely that the President would hire an attorney to compile the documents and review the request if it received a state grand jury subpoena.
Sekulow disagreed, noting that he would still have to confer with his busy client.
“Could you imagine just for a moment Justice Breyer, that I – and let’s assume that the President were to hire me – that I’m going to call the President of the United States today and say I know you’re handling a pandemic right now for the United States, but I need to spend a couple, two to three hours with you going over a subpoena of documents that are wanted by here the New York County district attorney,” Sekulow argued.
Dunne said if the court agreed with Trump’s argument for temporary immunity as the statute of limitations clock runs out, it would place the President – and possibly others – above the law.
“No one should forget that we’ve got an investigation that is looking at the conduct of other people and businesses and waiting like that would benefit those other participants,” Dunne said. “They could all end up above the law if the limitations period expires. Delay here is the same as absolute immunity and absolute permanent immunity for the president and others if the statute of limitation expires.”
Justice Elena Kagan appeared to agree, telling Sekulow, “The President isn’t above the law.”
John Roberts, seeking some kind of middle ground
Chief Justice John Roberts signaled from the start that he is looking for a path that avoids absolute rules and could bridge, to some extent in these polarized times, the dueling sides.
But even as he appeared ready to reject the hard-line Trump positions in both cases, if he opts for what the Justice Department raises as middle ground, the chief justice would ultimately make it difficult to enforce the subpoenas against Trump.
In the House case, Roberts challenged House lawyer Douglas Letter on his position that the court should defer to Congress’ assertions regarding subpoenas necessary for legislative efforts.
Roberts said that test tied to any legislative purpose seemed “limitless.” He said it appeared to disregard that the President represents a “coordinate branch of government,” an equal player in the separation of powers.
Roberts also suggested he was not ready to accept the view of Trump lawyer Patrick Strawbridge that a president’s personal papers were off-limits. Roberts appeared inclined to say Congress could subpoena such materials in limited circumstances and would face a high standard, far tougher than the House advocates.
In the same vein, when Sekulow contended that the president should be immune from a state criminal process while in office, Roberts pushed back. Again, he resisted the notion of a hard-and-fast rule.
The importance of the Nixon and Clinton precedents
The Supreme Court circled the question persistently during the arguments Tuesday. Justices pushed the lawyers to explain how Trump’s situation differed from cases involving then-Presidents Bill Clinton and Richard Nixon.
Roberts suggested by his questions that he does not think the high court is entirely bound by its decision in Clinton v. Jones in the Trump dispute.
In the 1997 case, the Supreme Court ruled that Clinton could be subject to a lawsuit by Paula Jones, who claimed Clinton has sexually harassed her when he was governor of Arkansas. Liberal justices referred repeatedly to that precedent on Tuesday as they suggested Trump could not block the disputed subpoenas. But Roberts drew a line between the civil litigation Clinton faced and the New York criminal case related to Trump.
The criminal context, Roberts said, could be “more distracting” to a president, impinging his ability to fulfill his constitutional duties. The chief justice suggested by his questions that he would opt for a heightened standard for any enforcement of a subpoena in a state criminal proceeding.
Ginsburg, for her part, framed the history of the situation early on as the liberals pushed their point.
“In so many of these prior cases, there was a cooperation, for example, tax returns. Every President voluntarily turned over his tax returns. So it gets to be a pitched battle here because President Trump is the first one to refuse to do that,” she said. “How do you distinguish, say, Whitewater, when President Clinton’s personal records were subpoenaed from his accountant, or even Hillary Clinton’s law firm billing records were subpoenaed?”
Later, after Francisco argued that the President still deserved protection from even a grand jury investigation, Ginsburg pounced.
“As far as the impact of the President is concerned, I think there’s no case more dramatic than the Nixon tapes’ devastating impact on the President. He resigned from office,” she pointed out.
The longer arm of US history also mattered in Tuesday’s cases.
Letter argued how “there’s a lengthy history of presidents” not stopping congressional subpoenas and at times voluntarily complying with them.
But Justices Samuel Alito and Sonia Sotomayor both raised questions about how Congress pursuing personal records of officials may be a relatively modern phenomenon. Letter denied that was the case.
“This isn’t the first conflict between Congress and the President, as many of my colleagues have pointed out,” Kagan clarified. “We’ve never had to address this issue, and the reason is because Congress and the President have reached accommodations with each other.”
Conservatives suggest presidential harassment is a problem
Some conservative justices – Clarence Thomas, Brett Kavanaugh and Alito – coalesced around questions about potential harassment of the President with a wave of subpoenas, especially in the House’s cases.
“One could be manageable. But 100 could be impossible,” Thomas said, describing how both houses of Congress and grand juries may be subpoenaing a president all at the same time.
“At some point there’s the straw that breaks the camel’s back,” Thomas said at another point.
“That’s the issue here,” Alito said, “whether something should be done” to “prevent harassment of the President.”
The exchanges were notable not only for how much the Republican-appointed justices emphasized a possible need to protect the President– but also because of how far their approach was from what the court was questioning before Tuesday.
Before the arguments, the court had asked the parties to describe why the court should even be involved in such a political situation. Raising the question before the arguments seemed to indicate that the court may have sought an off-ramp.
But the justices now appear to be contending directly with how they regulate the subpoenas, or not.
Kavanaugh seemed to tease out a possibility that the court could use a test for congressional subpoenas, such as making sure there was a critical need for the information.
Clarence Thomas continues to assert himself
Another first for the blockbuster cases Tuesday was that the public, lawyers and justices all heard from Thomas, who normally does not speak up during oral arguments.
Over the last week, Thomas has been a vigorous participant in the new teleconference format where justices ask questions politely in order rather than the traditional free-for-all. Although he has a booming baritone and he is a prolific writer, his silence often means that bystanders have to wait until opinion day to get his take on a case.
On Tuesday, Thomas was an active participant and listeners could determine where he was headed. When one lawyer, for instance, argued that the subpoenas wouldn’t distract the President because they were directed to a third party, Thomas shot back.
“We all know it’s about the President,” Thomas said.
Thomas has seemingly picked up on arguments from his former clerk-turned-judge Neomi Rao, who wrote a dissenting opinion against the financial subpoenas last year when the DC Circuit Court of Appeals upheld one of the subpoenas in a divided ruling.
“What’s the line between a subpoena, a legislative subpoena and an impeachment-related subpoena?” he asked, later raising the possibility that House Democrats have used “pretextual” reasons to issue the subpoenas.
Thomas didn’t mention Rao by name, but this echoes her dissent from October. Rao disagreed with the majority on the appeals panel, and said Democrats were trying to “turn Congress into a roving inquisition” of the Executive Branch by using legislative subpoenas to investigate Trump.