The case before the Supreme Court could affect Congress’ ability to conduct oversight of a president, as well as the president’s authority to refuse such attempts. The outcome of the cases stemming from the House subpoenas, expected over the summer, could affect the November election — because if Democratic lawmakers get their hands on Trump’s financial records, they are widely expected to make them public.
At issue are subpoenas the House issued last year to Trump’s accounting firm Mazars USA, as well as major Trump lenders Deutsche Bank and Capital One. All the queries, according to lawmakers, are intended to inform efforts to update ethics, disclosure and money laundering laws, as well as those pertaining to foreign influence in elections and government.
But Trump’s legal team argued that the demands were tantamount to political harassment, and that the House’s claims of a “legislative purpose” were a pretense to investigate the president. And at least one conservative justice seemed to agree.
“I think we all know it’s about the president,” conservative Justice Clarence Thomas said.
Indeed, Thomas went even further, raising doubts about Congress’ power to subpoena anyone — an authority that does not appear in the Constitution but that courts have found implicit because it’s necessary to make informed decisions about legislation.
None of the justices announced a definitive position in the case, but two — Thomas and conservative Justice Samuel Alito — sounded highly sympathetic to the president’s arguments and hostile to the House’s.
The court’s other three GOP appointees — Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh — were more equivocal and did not sound like certain votes for Trump’s stance. Most of the court’s liberal justices seemed to favor some authority for the House to get the information it is seeking.
The arguments about the House’s power came during the first half of a more than three hour virtual court session that also featured Trump’s lawyers trying to fend off a separate subpoena by the Manhattan district attorney for similar financial records.
The oral arguments Tuesday were conducted by teleconference, in line with public health measures the court has taken due to the coronavirus outbreak. A feed of the audio was made available for live broadcast, something the justices have resisted before the current crisis.
House Democrats have issued multiple subpoenas for Trump’s financial records that have wound through the courts for a year. Though the House has won at every level so far, Trump’s legal team is hopeful that the high court is a more favorable venue to beat back the effort.
At its core, the president’s legal fight with Congress is over how close a link the courts will require between House committees’ investigative efforts aimed at allegations of presidential misconduct and lawmakers’ specific plans to pass legislation.
So far, the courts have agreed that a broad interest in government oversight and the possibility of changes to mundane legislation like financial disclosure laws is enough to justify congressional subpoenas — and that history has shown this was the precise intent of the framers of the Constitution.
Trump’s lawyers, though, say that investigating whether a president broke the law in his financial dealings is beyond Congress’ legislative powers and that — outside of an impeachment inquiry — no congressional action to pursue such allegations is legitimate. That would appear to leave law enforcement as the only other option for reining in a president who is defying the law.
In the case about the House’s subpoena power, Trump attorney Patrick Strawbridge mentioned at least three times that some of the House subpoenas were so broad they included tax returns and other records for Trump’s family — an appeal to justices who might have little sympathy for Trump himself.
“I think the court cannot refuse to see what others see. … The threat in this case of subpoenaing a decade’s worth of papers not only of the president, but his family members, his children and grandchildren as the House has done in this case,” Strawbridge said. “That’s an obvious problem.”
Trump’s lawyers and the Justice Department presented their arguments as modest ones, but liberal Justice Elena Kagan said they were far from that. Kagan said ruling for Trump could radically diminish congressional power while bolstering the authority of the presidency.
“It seems to me what you’re asking us to do is to put a kind of 10-ton weight on the scale between the president and Congress, essentially to make it impossible for Congress to perform oversight and carry out its functions where the president is concerned,” Kagan said.
House counsel Douglas Letter repeatedly stressed that the House subpoenas were served on banks and an accounting firm, not directly on the president and there was no demand for Trump’s personal testimony.
“Our subpoenas are not to the president. Nothing is required of the president here for these subpoenas to be fully complied with. Not a single thing is required of the president,” Letter said.
However, Deputy Solicitor General Jeffrey Wall said even those kinds of subpoenas could become a major distraction for the president.
“The potential to harass and undermine the president — and the presidency — is plain,” Wall said. “I don’t think it takes much imagination to know where that road will lead or that we will regret having taken it.”
While Trump’s lawyers argued that enforcing the subpoenas would interfere with the separation of powers, Letter argued that aggressively questioning the House’s sincerity about its legislative goals would amount to a similar intrusion.
However, the House counsel struggled when asked by the justices to explain what kind of House subpoena would not conceivably be related to some subject Congress could legislate on.
Under questioning from Alito, Letter said a congressional subpoena to a member of Congress could be valid if it pertained solely to that lawmaker’s private life — as opposed to his or her public duties, which would be protected by the Constitution’s Speech and Debate clause, which grants members of Congress protection from prosecution for work they do as legislators.
One central point of discussion by the lawyers and the justices Tuesday was the 1997 Supreme Court decision that rejected similar immunity claims from President Bill Clinton’s lawyers and allowed Arkansas state employee Paula Jones’ civil suit for sexual harassment against Clinton to proceed.
Clinton’s statements in his subsequent deposition in that suit prolonged the Whitewater independent counsel probe and led to his impeachment by the House.
Several justices said Trump’s lawyers were ignoring or downplaying Clinton v. Jones, which green-lighted civil litigation many would consider less weighty than a congressional subpoena or a criminal investigation.
“The aura of this case is really sauce for the goose serves the gander as well,” liberal Justice Ruth Bader Ginsburg said.
Ginsburg also questioned whether the president was truly seeking the same protections as his predecessors, given the disputes argued Tuesday seemed to be triggered largely by his failure to turn over tax returns that presidents have routinely made public for half a century.
“It gets to be a pitched battle here because President Trump is the first to refuse to do that,” Ginsburg said.
The justices also wrestled Tuesday with another case that involves similar arguments: an attempt by Manhattan District Attorney Cyrus Vance Jr. to use state-level grand jury subpoenas to get eight years of Trump’s tax returns and other financial records.
Trump personal lawyer Jay Sekulow said allowing those subpoenas would lead to a flurry of such requests, potentially permitting 2,300 local prosecutors to target the president.
“The idea we would wait for more of these….?” Sekulow said skeptically, before noting the House subpoenas and the New York ones have piled up. “We’re already here in three subpoenas, four subpoenas. We are seeing that in real time — the burdensome nature of what’s happening here.”
But a lawyer from Vance’s office Carey Dunne said Trump’s lawyers — and to an extent, the justices themselves — were fretting about a theoretical danger that hasn’t materialized despite the decades of precedents subjecting the president to demands from the legal system.
“The supposed floodgates have been open for generations and there has never been a flood,” Dunne said.
Last September, Trump sued Vance to try to block grand jury subpoenas seeking eight years of his tax returns as part of an investigation into alleged fraud by the Trump Organization and other matters.
Trump’s attorneys made a sweeping argument that presidents are immune from all concrete steps in the criminal justice process — ranging from subpoena to arrest and prosecution — while in office.
The Justice Department did not fully embrace the Trump legal team’s claim that the president has “absolute immunity,” but warned that allowing state-level prosecutors free rein to pursue the president would cause major constitutional problems.
Vance and the president’s critics have argued that the stance taken by Trump’s lawyers would not only put him beyond the reach of criminal law enforcement while in office, but could also amount to a free pass for any of his associates who might have committed crimes.
The House subpoenas — directed to Mazars USA — don’t explicitly seek the tax returns Trump promised to make public during the 2016 campaign but later withheld. It’s not clear what Mazars will give the House if the congressional subpoenas are upheld.
If the justices uphold the New York subpoenas, Trump’s tax records wouldn’t immediately be made public because they’d be subject to grand jury secrecy. But they could emerge if Vance files criminal charges against Trump or someone else.
A ruling in the cases is likely by the end of June, but they have already been delayed by the coronavirus pandemic. Arguments were originally set for March 31, but postponed to Tuesday and shifted to a conference call format due to concerns about the virus.
The House cases also represent the culmination of a campaign Democrats have pursued since the outset of Trump’s presidency to unearth his dealings with various lenders, including Deutsche Bank and Capital One. They had limited powers to do so until winning control of the House in 2018 and gaining subpoena authority.
Once they secured committee gavels last year, House Financial Services Chair Maxine Waters (D-Calif.) and House Intelligence Chair Adam Schiff (D-Calif.) wasted little time organizing investigations into Trump’s relationship with the German lender, which lent Trump hundreds of millions of dollars over the years for property development ventures. The bank is also under scrutiny for alleged ties to Russian money laundering.
As part of the investigation into Trump’s banks, the committees sought records on not only Trump but also his children and various legal entities. Beyond tax returns, House investigators have pursued financial statements, internal bank communications, evidence of Trump ties to foreign individuals and documentation of potential suspicious activity.
Democrats have sought similar records from Mazars. The House Oversight Committee in early 2019, chaired by the late Rep. Elijah Cummings of Maryland, subpoenaed the firm in response to evidence from Trump’s former personal lawyer Michael Cohen that Trump artificially inflated and deflated the values of his assets to suit his personal financial benefit.