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 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 in November.
The court’s 5-4 conservative majority includes two justices appointed by Trump, Neil Gorsuch and Brett Kavanaugh.
Chief Justice John Roberts, who was appointed by Republican President George W. Bush in 2005, 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 longtime 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.
Three months after Trump avoided removal from office in a Senate impeachment trial, Trump’s lawyers want the Supreme Court to endorse their expansive view of presidential powers that would severely limit the ability of Congress to carry out oversight of presidents and of prosecutors to investigate them.
Concern about fishing expeditions
Roberts queried Trump’s lawyer, Patrick Strawbridge, about 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” a situation where that would be justified.
Roberts’s questions seemed to express skepticism that Congress had no authority to issue such a subpoena or that a court could second-guess its motivations to do so, while also doubting that congressional power was limitless.
“Should a court be probing the mental processes of 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 have argued that the congressional panels had no authority to issue the subpoenas and had no valid legislative reason for seeking the records.
Roberts also seemed skeptical of arguments by a House lawyer that lawmakers have 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 House counsel Doug Letter. The justice said the House needed to take into account that it was dealing with another co-equal branch of government.
Conservative and liberal justices asked 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.
Justice Samuel Alito, another Bush appointee, said under the House’s argument there would be “nothing preventing the harassment of a president.”
Gorsuch expressed concern about lawmakers abusing the subpoena process and fishing for unlawful conduct by a political rival.
“Normally we use law enforcement tools like subpoenas to investigate known crimes and not to pursue individuals to find crimes,” Gorsuch said.
‘The president is just a man’
The 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.
Justice Elena Kagan, who was appointed by President Barack Obama in 2010, noted that 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-tonne 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.
The House committees have said they are seeking the material as part of 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.
Rulings weeks away
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.
It will likely take the court weeks to produce its rulings.