After listening to three hours of oral arguments, the Supreme Court on Tuesday appeared likely to reject President Donald Trump’s claim that he is immune from criminal investigation while in office.
But the court also appeared split on exactly how to handle subpoenas from Congress and the Manhattan district attorney for Trump’s tax, bank and financial records.
Justice Sonia Sotomayor told a lawyer for the president “there is a long, long history of Congress seeking records and getting them” from the commander in chief.
The court's major clash over presidential accountability could affect the 2020 presidential campaign, especially if a high court ruling leads to the release of personal financial information before Election Day.
The justices heard arguments in two cases by telephone Tuesday that stretched into the early afternoon. The court, where six justices are age 65 or older, has been meeting by phone because of the coronavirus pandemic.
There was no apparent consensus about whether to ratify lower court rulings that the subpoenas to Trump’s accountant and banks are valid and should be enforced. The justices will meet by phone before the end of the week to take a preliminary vote on how those cases should come out.
The justices sounded particularly concerned in arguments over congressional subpoenas about whether a ruling validating the subpoenas would open the door to harassing future presidents.
“In your view, there’s no protection for the purpose of preventing harassment of a president,” Justice Samuel Alito said to Douglas Letter, the lawyer for the House of Representatives.
But in the case involving Manhattan District Attorney Cyrus Vance Jr.’s subpoena for Trump’s taxes, the justices showed little interest in the broadest argument made by Jay Sekulow, Trump’s lawyer, that a president can’t be investigated while he holds office.
Alito challenged Sekulow’s assertion that a grand jury subpoena cannot be enforced against a sitting president in a case in which waiting for a president to leave office would undermine a criminal prosecution.
Justice Elena Kagan also told Sekulow a “fundamental precept of our constitutional order is that the president is not above the law.”
Trump had said he would make his tax returns public, but hasn’t done so, unlike every other president in recent history.
“President Trump is the first one to refuse to do that,” Justice Ruth Bader Ginsburg said early in the arguments.
Chief Justice John Roberts asked Trump lawyer Patrick Strawbridge: “Do you concede any power in the House to subpoena personal papers of the president?”
The Trump attorney answered, saying it would be “difficult to imagine” a situation in which it would be.
Kagan jumped in around this point, saying that “the president is just a man” when it comes to personal records.
“What it seems to me you’re asking us to do,” she told Strawbridge, “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.”
Kavanaugh asked: “The question … boils down to how can we both protect the House’s interest in obtaining information it needs to legislate but also protect the presidency. How can the court balance those interests?”
The cases resemble earlier disputes over presidents’ assertions that they were too consumed with the job of running the country to worry about lawsuits and investigations. In 1974, the justices acted unanimously in requiring President Richard Nixon to turn over White House tapes to the Watergate special prosecutor. In 1997, another unanimous court allowed a sexual harassment lawsuit to go forward against President Bill Clinton.
In those cases, three Nixon appointees and two Clinton appointees, respectively, voted against the president who chose them for the high court. The current court has two Trump appointees, Justices Neil Gorsuch and Brett Kavanaugh.
Appellate courts in Washington and New York have ruled that the documents should be turned over, but those rulings have been put on hold pending a final court ruling.
The appellate decisions brushed aside the president’s broad arguments, focusing on the fact that the subpoenas were addressed to third parties asking for records of Trump’s business and financial dealings as a private citizen, not as president.
House committees want records from Deutsche Bank and Capital One, as well as the Mazars USA accounting firm. Mazars also is the recipient of a subpoena from Manhattan District Attorney Cyrus Vance Jr.
Two congressional committees subpoenaed the bank documents as part their investigations into Trump and his businesses. Deutsche Bank has been one of the few banks willing to lend to Trump after a series of corporate bankruptcies and defaults starting in the early 1990s.
Vance and the House Oversight and Reform Committee sought records from Mazars concerning Trump and his businesses based on payments that Trump's then-personal lawyer, Michael Cohen, arranged to keep two women from airing their claims of affairs with Trump during the 2016 presidential race.
Trump sued to block the subpoenas. He is being represented by personal lawyers at the Supreme Court, and the Justice Department is supporting the high-court appeal.
About the Author
