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Supreme Court Hears Arguments on Releasing Trump’s Financial Records Supreme Court Hints at Split Decision in Two Cases on Obtaining Trump’s Financial Records
(about 5 hours later)
WASHINGTON — The very nature of the presidency was under scrutiny at the Supreme Court on Tuesday, as the justices heard more than three hours of arguments on whether House committees and prosecutors may obtain troves of information about President Trump’s business affairs. WASHINGTON — The Supreme Court heard more than three hours of arguments on Tuesday on the powers of the presidency and whether they protect President Trump from the prosecutors and House committees seeking to obtain troves of information about his business affairs.
The court considered two sets of cases, and there was a strong possibility of a split decision.
A majority of the justices appeared skeptical of Mr. Trump’s argument, in response to a subpoena from the Manhattan district attorney, that he was absolutely immune from criminal investigation while he remained in office. But the court seemed more receptive to Mr. Trump’s argument that the House committees had asked for too much information for reasons unrelated to their legislative responsibilities.
Should the court order release of the president’s tax returns and other financial information in response to the House subpoenas, the records would almost certainly be made public and voters could consider them in deciding whether to re-elect him in November. The records may provide insight into Mr. Trump’s business practices, foreign entanglements and hush-money payments.
But if the Manhattan prosecutors prevail, the records would not immediately be made public under the secrecy rules that apply to grand juries.
Because of the coronavirus, the court heard the arguments by telephone, an experiment that started last week. The justices asked their questions one at a time, in order of seniority, which gave the arguments a stilted, halting quality and made them harder to assess than the free-for-alls that are commonplace when arguments are held in the courtroom.
The court’s ruling, expected by July, could require disclosure of information the president has gone to extraordinary lengths to protect. Or the justices could rule that Mr. Trump’s financial affairs are not legitimate subjects of inquiry.The court’s ruling, expected by July, could require disclosure of information the president has gone to extraordinary lengths to protect. Or the justices could rule that Mr. Trump’s financial affairs are not legitimate subjects of inquiry.
But some of the justices’ questions raised a third possibility: that the court could return the cases to lower courts for reconsideration under stricter standards. That would have the incidental effect of deferring a final decision beyond the 2020 presidential election.But some of the justices’ questions raised a third possibility: that the court could return the cases to lower courts for reconsideration under stricter standards. That would have the incidental effect of deferring a final decision beyond the 2020 presidential election.
The first argument of two the court heard, which dealt with the congressional investigations, seemed to go better for Mr. Trump. The justices seemed more skeptical of the president’s case during the second argument, in which Jay Sekulow, a lawyer for Mr. Trump, argued that he was absolutely immune from criminal investigation while he remained in office. Michael C. Dorf, a law professor at Cornell, said the two sets of cases could have different outcomes.
There was no question that the questions before the court were momentous and consequential — for Mr. Trump, for the court and for the separation of powers in government. “The congressional cases appeared to split the justices on ideological lines, with the possible exception of Justice Breyer, who seemed genuinely concerned about excesses against future presidents,” Professor Dorf said, referring to Justice Stephen G. Breyer. “There appeared to be more cross-ideological agreement in the New York grand jury case.”
“The subpoenas here are unprecedented in every sense,” said Patrick Strawbridge, the lawyer representing Mr. Trump in the cases on inquiries from Congress. Justice Breyer said that he was concerned about the presidency rather than a particular president, recalling Senator Joseph R. McCarthy’s investigations of supposed communist infiltration of the government in the 1950s.
“What I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman,” Justice Breyer said.
There was no doubt that the questions before the court were momentous and consequential — for Mr. Trump, for the justices, for the separation of powers among the three branches of the federal government and for the relationship between local officials and the president.
“The subpoenas here are unprecedented in every sense,” said Patrick Strawbridge, the lawyer representing Mr. Trump in the cases on inquiries from Congress, Trump v. Mazars USA, No. 19-715, the case the court heard first.
Several justices disputed that, saying the Watergate investigation of President Richard M. Nixon and the Whitewater investigation of President Bill Clinton provided apt analogies. Both presidents lost unanimous Supreme Court cases in which they sought to withhold information.Several justices disputed that, saying the Watergate investigation of President Richard M. Nixon and the Whitewater investigation of President Bill Clinton provided apt analogies. Both presidents lost unanimous Supreme Court cases in which they sought to withhold information.
“History and practice matter quite a bit in separation of powers cases,” said Justice Brett M. Kavanaugh, who was appointed to the court by Mr. Trump. “History and practice matter quite a bit in separation of powers cases,” Justice Brett M. Kavanaugh said.
The justices’ questions mostly reflected their usual inclinations, with the more liberal members of the court expressing skepticism of Mr. Trump’s arguments and the more conservative ones saying they were worried about opening the door to partisan harassment of the president. The justices returned repeatedly to those precedents: United States v. Nixon in 1974 and Clinton v. Jones in 1997.
But Chief Justice John G. Roberts Jr. suggested that the case was in one sense routine. “It sounds like at the end of the day,” he said, “this is just another case in which the courts are balancing the competing interests.” In the Nixon case, the Supreme Court unanimously ruled that he had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting claims of executive privilege. In the Clinton case, the court unanimously allowed a sexual harassment suit against the president to proceed, discounting concerns that it would distract him from his official responsibilities.
The interests the Supreme Court sought to balance included congressional power to gather information to inform legislative choices and the unique constitutional status of the presidency. Several justices said those two cases posed problems for Mr. Trump’s position in the second case, Trump v. Vance, No. 19-635, resulting from the Manhattan district attorney’s request for business records in a criminal inquiry. If Nixon was required to turn over information about his official conduct in a criminal case, they said, why should Mr. Trump be able to shield records of his private conduct?
Justice Sonia Sotomayor said inquiries into foreign influence over American elections were doubtless proper. But she and Justice Kavanaugh indicated that the president’s medical records would be out of bounds. “As far as the impact of the president is concerned, I think there’s no case more dramatic than the Nixon tapes’ devastating impact on the president,” Justice Ruth Bader Ginsburg said. “He resigned from office. But yet that was OK. So I really don’t get it.”
Justice Elena Kagan said that Congress and the president had in the past worked out their differences through informal accommodations. Now, she said, Mr. Trump was asking the court to place a “10 ton weight” on one side of the balance. And if Mr. Clinton was required to provide a deposition in the sexual harassment case, several justices said, why should Mr. Trump be able to avoid the lesser burden of allowing third parties to provide information to prosecutors?
Mr. Strawbridge responded that “these subpoenas fail every hallmark of legitimate legislative investigation.” “How do we avoid the conclusion there,” Justice Neil M. Gorsuch asked, referring to the Clinton case, “that the president wasn’t subject to some special immunity but here is?”
Prompted by the coronavirus pandemic, the court heard the arguments by telephone, an experiment that started last week. The proceedings ran smoothly, with few technical glitches, and the public has been able to listen in. “There,” said Justice Gorsuch, who was appointed by President Trump, “they sought the deposition of the president while he was serving. Here, they’re seeking records from third parties.”
Jeffrey B. Wall, a lawyer for the Justice Department who argued in support of Mr. Trump, made a more limited but still sweeping argument. “You can’t proceed against the president as you can against an ordinary litigant,” he said. “The potential to harass and undermine the president and the presidency is profound.” The first case, concerning subpoenas from the House committees, did not feature such obvious precedents, and the justices’ questions concerning them mostly reflected their usual inclinations. The more liberal members of the court for the most part were skeptical of Mr. Trump’s arguments, and the more conservative ones said they were worried about opening the door to partisan harassment of the president.
Douglas N. Letter, the general counsel of the House of Representatives, said the president’s arguments were astonishing. “History really matters here,” he said. Chief Justice John G. Roberts Jr. suggested that the case was in one sense routine. “It sounds like at the end of the day,” he said, “this is just another case in which the courts are balancing the competing interests.”
The core question in the case was whether the House committees had a legitimate legislative need for the information they sought. Justice Breyer, a member of the court’s liberal wing, also seemed inclined to strike a balance in the cases concerning the House subpoenas, expressing dismay at their breadth and the burdens they imposed.
Justice Ruth Bader Ginsburg said the courts should not second-guess the House’s own judgment. “Why should we not defer to the House about its own legislative purposes?” she asked. “They apply to 15 Trump-affiliated entities,” he said of the subpoenas. “They ask for all documents related to opening of accounts, due diligence, closing, requests for information by other parties, et cetera. Now that’s a lot of information, and some of it’s pretty vague.”
Justice Clarence Thomas, who has been a full participant in the court’s telephone arguments, said the sheer number and breadth of the subpoenas was problematic. “At some point,” he said, “this thing gets out of control.” Justice Sonia Sotomayor said congressional inquiries into foreign influence over American elections were doubtless proper. But she and Justice Kavanaugh indicated that a hypothetical subpoena for the president’s medical records would be out of bounds.
The subpoenas sought information from Mr. Trump’s accountants or bankers, not from Mr. Trump himself, and the firms have indicated that they will comply with the court’s ruling. Had the subpoenas sought evidence from Mr. Trump himself, there was at least a possibility that he would try to defy a ruling against him, prompting a constitutional crisis. Justice Elena Kagan said there was a reason for the dearth of precedents relevant to the House subpoenas: Congress and the president had in the past worked out their differences through informal accommodations.
One subpoena, directed to Mr. Trump’s accounting firm, Mazars USA, was issued by the House Oversight and Reform Committee, which said it was investigating hush-money payments and whether Mr. Trump inflated and deflated descriptions of his assets on financial statements to obtain loans and reduce his taxes. “What it seems to me you’re asking us to do,” she told Mr. 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 where the president is concerned.”
When Mr. Trump’s lawyers went to court to try to block the subpoena, they argued that the committee had no legislative need for them. They said the panel was engaged in an improper criminal inquiry and was not seeking information to help it enact legislation. Mr. Strawbridge responded that “these subpoenas fail every hallmark of a legitimate legislative investigation.”
In October, a divided three-judge panel of the United States Court of Appeals for the District of Columbia Circuit refused to block the subpoena. Jeffrey B. Wall, a lawyer for the Justice Department who argued in support of Mr. Trump in the case on the House subpoenas, made a more limited but still sweeping argument. “You can’t proceed against the president as against an ordinary litigant,” he said. “The potential to harass and undermine the president and the presidency is plain.”
Another set of subpoenas came from the House Financial Services and Intelligence Committees and were addressed to two financial institutions that did business with Mr. Trump, Deutsche Bank and Capital One. They sought an array of financial records related to the president, his companies and his family. Douglas N. Letter, the general counsel of the House of Representatives, said the president’s arguments were surprising in their boldness. “History really matters here,” he said, “and it shows that the arguments being made here by President Trump astonishingly ask you to ignore a massive amount of history.”
The United States Court of Appeals for the Second Circuit, in New York, ordered most of the records to be disclosed. It made an exception for sensitive personal information unrelated to the committee’s investigations. The arguments gave the public a rare chance to hear Justice Clarence Thomas, who ordinarily asks no questions from the bench and has criticized his colleagues for cutting off lawyers and each other in arguments held in the courtroom. But he seems to have found the court’s telephone arguments more congenial, and he has been a full participant in them.
The first argument lasted more than 30 minutes longer than the allotted hour. The sheer number and breadth of the congressional subpoenas, he said on Tuesday, was problematic. “At some point,” he said, “this thing gets out of control.”
The second argument, which began immediately after the first, concerned a subpoena to Mr. Trump’s accounting firm from the office of the Manhattan district attorney, Cyrus R. Vance Jr., a Democrat. It sought eight years of business and personal tax records in connection with an investigation of the role that Mr. Trump and the Trump Organization played in hush-money payments made in the run-up to the 2016 election. Later in the argument, he elaborated. “There’s a straw that breaks the camel’s back,” he told Mr. Letter, “and it seems as though you’re saying that we should look at these in isolation as opposed to in the aggregate. Why wouldn’t we look at all of them and look at the full effect and whether at some point it debilitates the president?”
The second argument began immediately after the first. It concerned a subpoena to Mr. Trump’s accounting firm from the office of the Manhattan district attorney — Cyrus R. Vance Jr., a Democrat — seeking eight years of business and personal tax records in connection with an investigation of the role that Mr. Trump and the Trump Organization played in hush-money payments made in the run-up to the 2016 election.
Both Mr. Trump and his company reimbursed the president’s former lawyer and fixer, Michael D. Cohen, for payments made to the pornographic film actress Stormy Daniels, who claimed that she had an affair with Mr. Trump.Both Mr. Trump and his company reimbursed the president’s former lawyer and fixer, Michael D. Cohen, for payments made to the pornographic film actress Stormy Daniels, who claimed that she had an affair with Mr. Trump.
Mr. Cohen was also involved in payments to Karen McDougal, a Playboy model who had also claimed she had a relationship with Mr. Trump. The president has denied the relationships.Mr. Cohen was also involved in payments to Karen McDougal, a Playboy model who had also claimed she had a relationship with Mr. Trump. The president has denied the relationships.
Mr. Trump sued to stop his accounting firm from turning over the records, but lower courts ruled against him. In a unanimous ruling, the Second Circuit said state prosecutors may require third parties to turn over a sitting president’s financial records for use in a grand jury investigation. Jay Sekulow, a lawyer for Mr. Trump, said his client was entitled to “temporary presidential immunity” from the subpoena while he remains in office. That sweeping argument did not appear to gain much traction.
Carey R. Dunne, the general counsel of the Manhattan district attorney’s office, said the case boiled down to a simple principle.
“When a president acts as a private individual, he or she has responsibilities like every other citizen, including compliance with legal process,” Mr. Dunne said. “In particular, this court has long held that American presidents are not above having to provide evidence in response to a law enforcement inquiry.”
Some justices said they were looking for a middle ground.
“A possible solution is to say no absolute rule,” Justice Breyer said, “but just send it to the ordinary system for weighing the needs versus the burdens, and the different sides have to say what they are, and then have that reviewable in federal court.”
“Now all that would take time,” he said. “The time itself would discourage prosecutors from doing this, which might be good. And time itself would encourage House, Congress, president to work things out in a nonjudicial way.”