Follow oral arguments here beginning at 10 a.m. ET.
Over three hours via teleconference Tuesday, the Supreme Court delved into two of the term’s most momentous cases that will determine whether the House of Representatives and a New York prosecutor can subpoena President Donald Trump’s accounting firm and banks for his financial documents.
The justices, participating by phone because of health precautions related to Covid-19, focused on Trump’s effort to shield his documents, but they also prodded the lawyers to look into the future and gauge how an eventual decision will impact the separation of powers and an executive’s broad claims of immunity.
Trump’s attorneys argued that that the House subpoenas were “unprecedented in every sense” and they asked for “temporary presidential immunity” against a subpoena from a New York prosecutor for Trump’s tax records.
“We’re asking for temporary presidential immunity,” Trump attorney Jay Sekulow told the court, defending against a subpoena from New York for the President’s tax records.
When a lawyer for the House argued in support of the subpoenas issued by three committees, several conservative justices zeroed in on whether the efforts by the Democratic-led house amounted to harassment of Trump.
For his part, Chief Justice John Roberts asked the lawyer about the limits of congressional powers and suggested that the House needed to take into consideration the fact that the subpoenas involved, not at an ordinary litigant, but the President.
Roberts said the House didn’t seem “to take account of the fact that we are talking about a coordinate branch of government, the executive branch.” He suggested that the House was arguing that its power was “limitless.”
Justice Clarence Thomas shared the concern, looking down to the road at future investigations and noting that “at some point” there is a “straw that breaks the camel’s back.”
Thomas worried about efforts to debilitate a president with a wave of subpoenas not only from Congress but grand juries as well.
“One could be manageable. But 100 could be impossible,” Thomas said to House General Counsel Douglas Letter.
“That’s the issue here: Whether something should be done” to “prevent harassment of the President,” Justice Samuel Alito said.
The liberal justices, meanwhile, pounced on lawyers for Trump, suggesting that the court has long upheld Congress’ power to investigate.
Justice Ruth Bader Ginsburg noted that every recent president has voluntarily turned over his tax returns. She pointed to past investigations concerning Watergate, Whitewater and Paula Jones.
“How do you distinguish all of those cases,” she asked, adding that before Congress can legislate, it must investigate.
Justice Elena Kagan noted pointedly that “this isn’t the first conflict between Congress and the President,” she said. In previous conflicts, the White House and Congress were able to reach an agreement. That obviously hasn’t happened here, she told Trump attorney Patrick Strawbridge.
“And 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 where the President is concerned,” Kagan said.
Roberts had started by asking to see whether the House had any power to subpoena personal records, perhaps in an effort to find a middle ground. “It sounds like, at the end of the day, this is just another case where the courts are balancing the competing interests on either side, is that the wrong way to look at it?”
‘The President isn’t above the law’
In the case concerning the New York grand jury subpoena, several of the justices did not seem receptive to Trump’s broad claims of immunity, pointing at times to court precedent concerning Presidents Richard Nixon and Bill Clinton that were relied upon by the lower courts that ruled against Trump.
Roberts asked a lawyer for Trump about the fact that in Clinton v. Jones, the court allowed a private citizen to bring civil suit against a sitting president.
“You focus on the distraction to the President” in this case, Roberts told a lawyer for Trump, but he said in the Clinton case, “we were not persuaded that the distraction in that case meant that discovery could not proceed.”
Justice Neil Gorsuch, too, emphasized that in the Clinton case the court allowed the case to go forward against a sitting president, but in the case at hand, all that was being sought was records from third parties.
Sotomayor stressed that New York District Attorney Cyrus Vance was not targeting official acts by the President.
“You are asking for a broader immunity than anyone else gets,” she told Sekulow.
And when he emphasized that the president is different than an ordinary litigant, Kagan shot back, saying: “The President isn’t above the law.”
Trump has sought for years to shield his tax returns and other records, while his critics launched a variety of investigations into hush money payments and potential violations of financial disclosure as well as ethics rules.
The cases come in the middle of a blockbuster term where the justices are already deciding cases concerning DACA, LGBT rights, and abortion. The court is also considering the Justice Department’s emergency request concerning whether the House can have access to grand jury material from the Mueller probe and redacted portions of the Mueller report.
Arguments were scheduled to be heard at the end of March but were delayed due to the pandemic. Decisions are expected this summer.
House Democrats subpoena of accounting firms
The first two cases, argued concurrently, pit the President’s personal lawyers against House Democrats who say they need records from Trump’s longtime accounting firm and two banks to investigate a variety of issues ranging from alleged hush money payments, illegal foreign involvement in a US campaign and potential violations of money laundering and ethics rules.
Trump’s lawyers sued to block the subpoenas arguing that although they are directed to third parties – Mazars USA, Deutsche Bank and Capital One – they involve the President and members of his family and amount to an illegal fishing expedition. Democrats say they need the documents regardless of the fact the impeachment trial of the President earlier this year ended in acquittal.
Federal appeals courts have ruled against the President.
“This is hardly the first subpoena Congress has issued – legislative subpoenas are older than our country itself,” a panel of judges of the US Court of Appeals for the District of Columbia held in October 2019 in one dispute concerning documents held by Mazars USA, Trump’s long-time accounting firm.
The 2nd US Circuit Court of Appeals in December said Deutsche Bank and Capital One had to turn over documents as well, saying that the issue did not trigger separation of powers concerns because the House’s subpoenas were directed at third parties. The court said that the interests of Congress to pursue the investigations “overbalance” Trump’s privacy interests.
Letter argued in court papers that there is “nothing unprecedented” about congressional subpoenas for documents and that Supreme Court precedent has “long recognized” that Congress can investigate potential wrongdoing as long as it is related to a valid legislative purpose.
He pointed to the Financial Services Committee inquiry into the use of banks in the United States to carry out international money laundering and unsafe lending practices. The Intelligence Committee is looking at targeted risks posed by foreign interference in the US political process and sought records to investigate whether foreign actors had financial leverage over Trump. And he said the Oversight Committee was looking into presidential financial disclosures and conflicts of interest.
“Not only could legislation be had on these subjects, but the committees have introduced or reported out several bills related to their inquiries and have conducted significant oversight of the relevant agencies,” Letter argued.
Strawbridge told the justices in filings that the subpoenas were part of an effort launched by House Speaker Nancy Pelosi after the Democrats took over the House to “investigate all aspects of the President’s public and private life.”
“These subpoenas are all expansive, burdensome, and unfocused fishing expeditions,” he said.
The Department of Justice is siding with Trump, arguing that the subpoenas represent a “serious risk of harassing the President and distracting him from his constitutional duties.”
Principal Deputy Solicitor General Jeffrey Wall argued that when a legislative subpoena seeks information from the President, it must meet a higher standard. Both chambers of the House must authorize the subpoena in question and the information sought must be “demonstrably critical” to a “legitimate legislative purpose.”
“Because the committees here did not make those showings, the subpoenas violate the Constitution,” he said.
The Justice Department suggested an off-ramp to the justices, saying they could avoid having to rule on Congress’ investigatory powers with respect to the President, by simply invalidating the subpoenas on the threshold ground that they were not authorized by the full House. “A full House vote ensures adequate deliberation and is part of the system of checks and balances,” Francisco said.
A brief filed by former senior Department of Justice officials argued that Congress’ power is “not absolute” and that the President can invoke executive privilege should he desire. They also highlighted precedent. During President Bill Clinton’s administration, the Senate heard testimony in a Whitewater-related inquiry from the Clinton family’s personal accountant. In 1980, a Senate committee was investigating whether President Jimmy Carter played a role in his brother Billy Carter’s contacts with business ventures in Libya. The committee investigated real estate holdings of the President and obtained Bill Carter’s tax and banking records.
New York seeks Trump’s tax returns
Vance served a subpoena on Trump’s long-time accounting firm, Mazars USA, for his tax returns as part of an investigation into hush money payments to two women with whom the President allegedly had extra-marital affairs pursuant to testimony of Michael Cohen. (Trump has denied the affairs.)
Trump’s personal lawyers and the Justice Department want the justices to reverse lower courts that have held that the subpoena could go forward.
“We have no occasion to decide today the precise contours and limitations of president immunity from prosecution,” Judge Robert A. Katzmann wrote for the 2nd US Circuit Court of Appeals. “We conclude only that presidential immunity does not bar the enforcement of a state grand jury subpoena” directed at Trump’s accounting firm.
Katzmann made sure to note however, that the “past six Presidents, dating back to President Carter, all voluntarily released their tax returns to the public.” The Court relied upon prior cases including a 1974 case United States v. Nixon, where the Supreme Court upheld a subpoena directed to President Richard Nixon to produce certain tape recordings central to the Watergate investigation.
“The President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions,” Katzmann wrote.
The Justice Department supports Trump here, but does not adopt his expansive views of presidential immunity. Instead, Solicitor General Noel Francisco focused on the fact that the district attorney can’t harass the President and divert his time and energy. Francisco argued a prosecutor must show that the evidence is “directly relevant” to issues that are expected to be central at trial and that the prosecutor must identify “specific charging decisions that cannot responsibly be make without access to the materials.”
This story has been updated with details from oral arguments.
CNN’s Katelyn Polantz and Cat Gloria contributed to this report.