Will Supreme Court Bail Out Trump In Subpoenas For Financial Records?

May 12, 2020
Originally published on May 13, 2020 11:08 am

Updated at 7:42 p.m.

There were historic arguments at the U.S. Supreme Court on Tuesday in cases that pit President Trump against the power of Congress and a New York grand jury.

The cases test whether some of the president's financial records prior to becoming president are immune to subpoenas, except during an impeachment proceeding.

Three House committees are involved in the congressional subpoenas for Trump's financial records.

The House Intelligence Committee wanted to look at potential foreign influence over the president, while the Financial Services Committee was trying to see if money laundering restrictions need to be tightened to prevent foreign influence in U.S. elections. The House Oversight Committee was looking at tightening ethics restrictions in the future to deal with a president who, like this one, has huge business interests that overlap with the government.

At about the same time, a New York grand jury subpoenaed the same set of documents in a broad criminal investigation into the president that included a probe of allegations that Trump paid adult film star Stormy Daniels and another woman hush money during the 2016 presidential campaign.

Trump intervened in all these cases, seeking to quash the subpoenas. He lost in the lower courts. So Tuesday, the hot potato was sitting in the Supreme Court's lap.

One of Trump's personal lawyers, Patrick Strawbridge, opened the argument in the congressional cases, contending that the subpoenas were unprecedented.

Justice Ruth Bader Ginsburg dismissed that notion, noting that unlike previous presidents who have released their tax returns voluntarily and turned over other personal records to Congress, Trump has not.

"The aura of this case is really sauce for the goose that serves the gander as well. So how do you distinguish, say, Whitewater, when President Clinton's personal records were subpoenaed from his accountant? Or even Hillary Clinton's law firm billings were subpoenaed. ... How do you distinguish all of those cases? Watergate, Whitewater? The Paula Jones case?" Ginsburg asked.

Strawbridge dodged.

Justice Elena Kagan suggested that Trump's claim of presidential immunity from congressional oversight is just going too far.

"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 ... where the president is concerned," Kagan said.

Deputy Solicitor General Jeffrey Wall was up next representing the Trump administration's view. Wall contended that the congressional justification for the subpoenas was "paper thin." Ultimately, Wall argued, that "the power that [Congress is] seeking ... will, I think, reshape and transform the balance of the separation of powers."

But, Justice Neil Gorsuch, noting that Congress and the president are co-equal branches of government, asked: "Why should we not defer to the House's view of its own legislative purposes?"

Douglas Letter, the lawyer for the House of Representatives, defended the congressional subpoenas, saying they were related to the House's ability to legislate on a variety of subjects.

Letter took quite a beating from the justices and seemed unable to address many of their concerns, with Chief Justice John Roberts telling him: "Your test is really not much of a test. It's not a limitation. And it doesn't seem in any way to take account of the fact that we're talking about a coordinate branch of government."

Ginsburg asked how the court could differentiate between harassment of a political rival and a genuine search for information.

Lawyer Letter replied that Trump is different from past presidents because "there is a lengthy history of presidents ... complying with requests for information by Congress ... Presidents Washington, Jackson, Buchanan, Grant. And then in more modern times, Nixon, Carter, Reagan and Clinton."

All those presidents, he said, ultimately complied with subpoenas either voluntarily or if required to, by the courts. Congress can't prosecute, said Letter, but it clearly can look into criminal activity in order to figure out whether the criminal law should be changed.

Several justices asked, however, what the limiting principle might be to this argument.

Justice Clarence Thomas jumped in, saying of congressional investigations: "You know at some point there's a straw that breaks the camel's back."

Justice Stephen Breyer observed that what concerned him is that what "I hold today will also apply to a future Sen. McCarthy asking a future Franklin Roosevelt or Harry Truman exactly the same questions. That bothers me."

Pressing for a clear place to draw the line, Justice Brett Kavanaugh asked, "How can we both protect the House's interest in obtaining information it needs to legislate, but also protect the presidency?"

Trump lawyer Jay Sekulow replied to that question in the next case, involving the New York grand jury subpoena. He mocked the idea of trying to get the president's attention when he has so many other things to do.

"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 of two to three hours with you going over a subpoena of documents.'"

Sekulow said that ultimately Trump is only asking for temporary immunity from these subpoenas until he leaves office.

Justice Ginsburg asked: "We have said in the grand jury context that the public has a right to every man's evidence. Is it your position that" it's every man, "save for the president?"

Justice Sonia Sotomayor continued that line of questioning, observing that such total, even if temporary, immunity would be unique even among government officials: "We only give judicial officers and congressional officers immunity for acts within their official capacity. ... If judges sexually harass someone, we've said that's not within judicial functions, they can be sued. If congressmen do the same thing, they can be sued. So my question still comes to, you're asking for a broader immunity than anyone else gets."

Picking up the thread, Justice Elena Kagan noted that "a fundamental precept of our constitutional order that a president isn't above the law ... from our first days, Chief Justice Marshall told Thomas Jefferson that he could be subpoenaed, he could be examined as a witness, he could be required to produce papers ... why isn't the way to deal with these two things, that the president is special but that the president is like an ordinary citizen in that he's subject to law?"

The Trump administration's Solicitor General Noel Francisco replied that the Constitution vests all executive power in just one person — the president — and that at minimum the grand jury has to make a showing that it really needs the subpoenaed information. And he argued New York hadn't done that here.

Trump's lawyers in both cases painted the subpoenas as unnecessary, burdensome to the president and political. Counsel for the New York District Attorney's Office, Carey Dunne, aimed to recharacterize the grand jury subpoenas in his case.

Dunne told the justices that "in 2018, when our investigation started ... there were a series of public disclosures in the press about possibly illegal transactions involving tax and other financial improprieties." The district attorney's office would have been "remiss" if it failed to investigate, he said, adding that there had been no communication or coordination with the House committees about the DA's subpoena. "There's nothing sinister about it," he said.

Justice Samuel Alito recalled that the court thought the Clinton subpoena would not impose a real burden on the president back in 1997 when Clinton was subpoenaed to give a deposition in the Paula Jones sexual harassment case. Was that assumption borne out by history, he asked, alluding to Clinton's subsequent impeachment.

Yes it was, Dunne replied. "Contrary to some people's view of history ... I don't think it was this court's opinion ... that led to those problems. Frankly, it was [Clinton's] decision to lie under oath" that led to his impeachment.

The justices participated by teleconference because of social distancing measures adopted amid the coronavirus outbreak, and the arguments were streamed live. Here's a rundown of all the cases the justices heard this week and last week.

The final arguments begin Wednesday at 10 a.m. ET and are to include a case about the Electoral College.

A decision in the Trump subpoena case and other cases argued this month may not come until July.

Christina Peck contributed to this report.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

AILSA CHANG, HOST:

Historic arguments were heard by the U.S. Supreme Court today in cases that pit President Trump against the powers of Congress and a New York grand jury. Both have subpoenaed some of Trump's pre-presidential financial records, and he's seeking to block his banks and his accounting firm from releasing the subpoenaed documents. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Three House committees subpoenaed Trump's financial records. The Intelligence and Financial Services Committees were trying to see if money laundering restrictions need to be tightened to prevent foreign influence in U.S. elections. The House Oversight Committee is looking at tightening ethics restrictions in the future to deal with a president who, like this one, has huge business interests that overlap with the government.

At about the same time, a New York grand jury subpoenaed the same set of documents in a broad investigation that included a probe of allegations that Trump paid porn star Stormy Daniels hush money during the 2016 presidential campaign. Trump intervened in all these cases, seeking to quash the subpoenas. He lost in the lower courts.

So today the hot potato was sitting in the Supreme Court's lap. Trump lawyer Patrick Strawbridge opened the congressional case, contending that the subpoenas were unprecedented. Justice Ruth Bader Ginsburg dismissed that notion, noting that unlike previous presidents who've released their tax returns, President Trump has not, and that many presidents in modern times have forked over to Congress their financial and personal records.

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: But the aura of this case is really sauce for the goose that serves the gander as well.

TOTENBERG: Justice Elena Kagan suggested that Trump is just going too far.

(SOUNDBITE OF ARCHIVED RECORDING)

ELENA KAGAN: 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 where the president is concerned.

TOTENBERG: Deputy solicitor General Jeffrey Wall chimed in next, contending that the Congressional justification for the subpoenas is, quote, "paper-thin." Douglas Letter, the lawyer for the House of Representatives, defended the congressional subpoenas, saying they were related to the House's ability to legislate on a variety of subjects. Chief Justice John Roberts didn't find his answers very satisfying.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: Your test is really not much of a test.

TOTENBERG: Justice Ginsburg asked how the court could differentiate between harassment of a political rival and a genuine search for information. Lawyer Letter replied that Trump is different from past presidents.

(SOUNDBITE OF ARCHIVED RECORDING)

DOUGLAS LETTER: There's a lengthy history of presidents either voluntarily or not voluntarily complying with requests for information by Congress - Presidents Washington, Jackson, Buchanan, Grant and, in more modern times, Nixon, Carter, Reagan and Clinton.

TOTENBERG: All those presidents, he said, complied with subpoenas either voluntarily or not. Congress can't prosecute, said Letter, but it can look at criminal activity in order to figure out whether criminal law should be changed. Several justices asked, however, what the limiting principle might be to this argument. Here, for instance, is Justice Clarence Thomas.

(SOUNDBITE OF ARCHIVED RECORDING)

CLARENCE THOMAS: At some point, there's a straw that breaks the camel's back.

TOTENBERG: Trump lawyer Jay Sekulow responded to that question in the next case involving the grand jury subpoena.

(SOUNDBITE OF ARCHIVED RECORDING)

JAY SEKULOW: If 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 of two to three hours with you going over a subpoena of documents...

TOTENBERG: Sekulow said that all President Trump is asking for is temporary immunity until he leaves office. That prompted Justice Sonia Sotomayor to observe that judges and members of Congress don't have any similar immunity.

(SOUNDBITE OF ARCHIVED RECORDING)

SONIA SOTOMAYOR: We only give judicial officers and congressional officers immunity for acts within their official capacity. If judges sexually harass someone, we’ve said that’s not within judicial functions. They can be sued. If congressmen do the same thing, they can be sued. So, my question still comes: you’re asking for broader immunity than anyone else gets.

TOTENBERG: Justice Neil Gorsuch wondered why this subpoena is any more burdensome than the one OK'd by the court in the Clinton case, forcing President Clinton to give a deposition that ultimately led to his impeachment. Justice Samuel Alito recalled that the court thought that the Clinton subpoena would not impose any real burden. The counsel for the New York DA replied this way.

(SOUNDBITE OF ARCHIVED RECORDING)

CAREY DUNNE: So I don't think it was this court's opinion or the litigation itself that led to those problems. It - frankly, it was his decision to lie under oath.

TOTENBERG: Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF DANGER MOUSE AND DANIELE LUPPI SONG, "SEASON'S TREES") Transcript provided by NPR, Copyright NPR.