Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
Today the Supreme Court is livestreaming oral arguments for three cases relating to the production of Trump’s financial documents including his tax returns.
Trump v. Mazars & Trump v. Deutsche Bank / Capitol One have been consolidated and involve congressional subpoenas served on Trump’s accountants and lenders, respectively.
The stated purpose of The Mazars subpoena is to investigate government ethics laws. The stated purpose of the Deutsche and Capitol One subpoenas is to investigate the Trump Organization with respect to foreign influence in US elections. The Trump Organization argues that the real and impermissible purpose of the subpoenas is to discover whether Trump or the Trump Organization committed a crime.
Trump lost both cases at the appeals level (Mazars in DC Cir., Deutsche in 2d Cir.), so the Supreme Court would need to reverse both in order to spare Trump
In one sense the Trump v. Vance case feels similar to the Mazars and Deutsche cases, except that the legal analysis differs when the matter is between a State v. President instead of Congress v. President, the former possibly implicating the Supremacy Clause.
NY County DA Cy Vance subpoenaed Mazars to obtain Trump’s tax returns and other financial documentation in the course of a grand jury investigation into Trump’s hush-money payments prior to the 2016 election.
The federal district court and the 2d Circuit both ruled against Trump. The legal question of whether a president could be sued while in office was settled in (Paula) Jones v. Clinton, but the Vance case is a criminal inquiry. That said, Vance isn’t seeking to depose Trump or obtain documents from him — all three cases only involve subpoenas to third parties, so the burden on the president isn’t at issue.
An important distinction between the Congress and NY cases is that should NY prevail, the tax returns wouldn’t become public record, since they’re being sought for a grand jury investigation. If Congress prevails, the tax returns would be posted online as soon as the committee receives them, in all likelihood.
Looking ahead, the Supreme Court may have tipped its hand a few weeks ago when it asked lawyers for both sides to submit briefs on the issue of whether these cases don’t implicate the “political question” doctrine. That doctrine embodies the idea that some controversies are “unjusticiable,” and best decided by the elected branches of government.
Of course, government power is a zero sum game — should the Supreme Court protect Trump, they’ll be diminishing the reach of Congress and states, leaving impeachment as the only remedy to presidential removal. (But remember during impeachment, when enablers’ like Jonathan Turley entire argument was that impeachment was premature because Congress hadn’t exhausted its options by litigating subpoenas for months and perhaps years? Those were the days.)
Should the Supreme Court find five justices willing to go the “political question” route, it would be a default victory for Trump, because they’d effectively saying that the courts should have dismissed the cases upon first contact.
There are huge, unanswered constitutional questions here relating to the scope of the presidency, as was obvious at oral argument before the 2d Circuit in the Vance case when Trump’s counsel argued that if Trump did indeed shoot someone on Fifth Avenue in Trump’s own classic hypothetical, the state couldn’t even investigate. A lot is at stake today.
I wrote about the DC Circuit opinion back in October, which was a 2-1 opinion, Trump appointee Neomi Rao dissenting, and David Tatel savaging that dissent.
OK, live now. Patrick Strawbridge is arguing for Trump in Mazars & Deutsche, contending that there’s an improper purpose, and such a showing is necessary.
Roberts wants to know scope of Trump’s argument.
Strawbridge: it’s “hard to imagine” House would ever have power to subpoena president, but Roberts wants him to draw a line.
Roberts: isn’t this just a competing interests for courts then?
Thomas: [No reply]
RBG: every president has turned over his tax returns. Long history of presidents turning over records. Watergate, Whitewater. Paula Jones. How to distinguish?
Strawbridge: easily distinguished b/c those instances involved cooperative efforts and too recent [? not sure why recency is a good argument].
Thomas: any implied powers for Congress to subpoena private dox generally.
Strawbridge: yes, some implied powers to investigate.
Breyer: Sam Irvin’s subpoenas in Watergate were unlawful? And why if, in Watergate, court gave dox of presidential workings, that’s not applicable here?
Strawbridge: court elsewhere says private, personal dox different than presidential workings.
Alito attacks “congressional purpose” issue.
Does Congress have any power to regulate personal conduct of president?
Alito’s in the tank.
Sotomayor: Long history of Congress seeking and getting records, so long as “conceivable legislative purpose” exists. Sees huge separation of powers problem if it can be attacked with line drawing.
She’s attacking the improper purpose argument that Alito is floating. Investigation to determine whether Trump isn’t beholden to foreign powers is perfectly legit inquiry, whether you like it or not.
Kagen: We’ve never had to reach this issue because there’s always been an accommodation and you’re now asking SCOTUS to put a ten-ton weight on the scales and render it impossible for Congress to exercise oversight function.
Strawbridge: Improper purpose blah blah. “Demonstrated need standard.”
Gorsuch: Why shouldn’t we defer to House in demonstrated need question?
Strawbridge: President not ordinary.
Gorsuch interrupts. Why is THIS subpoena not supported by a need.
Strawbridge: Congress requests overbroad, harassment, etc.
Kavanaugh: Demonstrated need standard: how does it play out?
Strawbridge: Doesn’t think Congress has met it, not really answering question.
Jeff Wall: Solicitor General (also up for Trump)
These subpoenas are improper on their face.
Roberts: how is court supposed to distinguish between diff between investigatory and legislative subpoenas? Breadth of subpoenas belies purpose.
Thomas: What if it was clear on face that the intent was to remove president?
Wall: “paper thin” pretext basically.
RBG: One must investigate before legislation. Cart horse issue. For instance, in Ethics in Gov’t Act, Congress might review tax returns and decide legislation needed.
Breyer: We’ve applied “special needs” of president before, but burden has been on subpoenaed, why not apply that standard.
Alito: apply standard you think would be appropriate here.
Wall: if this is about foreign elections, request should be recent, not back to 2010, etc.
Sotomayor: cart horse again. Congress has a lot of room to investigate, can’t rule out Trump’s considering president run in 2010. What basis to second guess? In what other setting does an investigative body need to demonstrate need for private papers?
Wall says it’s worse b/c personal over presidential records.
“In no place do you make a case as to why these particular subpoenas place a particular burden on the president such that he will be prevented from carrying out his constitutional responsibilities.”
Wall: this is a burden in the harassment sense.
Kagen: notes that same harassment argument failed in Clinton v Jones.
Gorsuch: what showing would Congress need to meet?
Wall: Some level of specificity. Agrees an investigation might be proper if legislation concerns whether presidents should disclose tax returns.
Kavanaugh: does entire House need to authorize subpoenas?
Wall: says resolution is a “rubber stamp and blank check.”
Whitewater and Watergate?
Douglas Letter up now for House, defending specificity of subpoenas on record, suggests Trump’s lawyers have misrepresented. There are enumerated limits on House.
Roberts: plausible example of someone who is beyond limits of Congress investigation?
Letter: Kilborn case
Kilborn test:
(1) Inquiries must not “invade areas constitutionally reserved to the courts or the executive”
(2) Inquiries must deal “with subjects on which Congress could validly legislate”
(3) The resolution authorizing the investigation must specify ” a congressional interest in legislating on that subject.”
(4) Where the inquiry can result in “no valid legislation,” then the “Private affairs of individuals” are not valid targets for inquiry
Thomas skeptical of “implied” power to subpoena for purpose of writing legislation.
RBG: what is limiting principle in re harassment?
Letter: McGrain case (decision clearly inspired politics), Clinton v Jones has language.
Alito: goes back to RBG question in re harassment. Didn’t like Letter’s answer.
Letter is not doing very good with his answer, returns to Jones Clinton.
Sotomayor: raises other side’s hypos where “just for the sake of exposure” is insufficient nexus between subpoena and legislative purpose.
Letter: “Pertinence” standard.
[It’s not a great sign that so much time is being spent on Congressional purpose question, because Congress has rarely had to meet much except the lowest standard.]
Kagan: You said subpoena could not impair president’s constitutional functions
Letter: There has to be a balance
Kagan: Would as Wall claimed today, would this interfere with president by undermining him?
Letter: He never made that in his brief
Letter: Trump is asking court to ignore a massive amount of history.
Gorsuch: again looking for a limiting principle. “We use law enforcement tools like subpoenas to investigate known crimes, not to find crimes.” Suggesting that Congress can’t have proper purpose if looking at one individual.
Letter: we’ve already done this.
Kavanaugh: wants Letter to put limits on power of legislative purpose pretext.
Letter suggests medical records of president wouldn’t be pertinent but doesn’t have a great answer for why. Suggests tie in to 25th Amendment. [But obvious distinction is that one person’s health can’t relate to ACA passage, but legislation that might force presidential record disclosure obviously related]
Roberts wants clarification on limits of power
Thomas: suggests too many subpoenas can be harassing in the aggregate.
RBG passes, which is a soft indictment of the job Letter’s doing today. I hope he doesn’t argue the Vance case.
Breyer asked a tougher question than you’d imagine, suggests he fears a future Joseph McCarthy.
I skipped a few questions, and Letter is wrapping up now. Letter did not do a good job, got easily backed into corners.
Strawbridge in rebuttal: Letter “struggled” to come up with limiting principles in Congressional scope of investigative inquiry.
NEXT UP, Trump v Vance. Happy to put to bed the Congressional purpose stuff.
Jay Sekulow up for Trump, sounding combative out of the gate. Basically arguing Presidential Immunity. Sekulow has argued before the Supreme Court before in religion clause cases but isn’t typically this angry.
Roberts: I don’t know why you don’t resist the investigation in its entirety. Or why your theory wouldn’t lead to that.
Thomas: wants historical framer support
Sekulow: cites Adams and Jefferson but I can’t make the connection.
RBG: public has a right to “every man’s evidence,” but how is that applicable here w/o privilege? If Paula Jones had sued in state court, result same?
Sekulow: not really answering question, says president is special, not distinguishing Jones.
RBG: So “every man’s evidence” excludes president?
Breyer: why not force Trump to show undue burden? That’s Clinton v Jones.
Sekulow: preparing a burden showing argument is burdensome (this is laughable). Breyer isn’t satisfied.
Alito: are they any circumstances a state prosecutor could subpoena a third party?
Sekulow: [expresses no limiting principle]
Sotomayor: troubled by “absolute immunity” to state prosecution while permitting (in Clinton Jones) civil litigation. Why is president entitled to more immunity for criminal acts than private acts?
Kagen says that President is “special’ but also not above the law.
Technical glitches caused me to miss a few questions. But Sekulow is still shouty and obstinate.
Solicitor General Noel Francisco up now. Notes that gov’t posture is different than Trump’s personal. Francisco agrees it’s a good argument but one they’d prefer to not make at this point.
In response to Thomas Francisco is arguing that state prosecutors are prejudiced.
RBG: no credit to 10th amdt give in supremacy clause argument. She doesn’t get why the impact to the president matters — Nixon handed over tapes and wound up resigning. “I don’t get it.”
Breyer: In Nixon tape case courts did a balancing test below; why not here too?
I honestly don’t understand what Francisco is arguing except he’s again alluding to local prejudice by prosecutors.
This argument going much worse for Trump than Deutsche Bank b/c SCOTUS justices ordinarily give a lot of deference to local prosecutors.
Sotomayor doesn’t understand why existing standards relating to determining good faith of prosecutors is suddenly inadequate here.
Kagen: Francisco keeps citing exec privilege but she doesn’t see how it’s applicable here, where exec privilege isn’t cited, only inchoate concerns about burdensomeness, which can be easily addressed (and indeed are routinely addressed by courts).
Francisco goes back to attacking New York’s local prosecutors.
Gorsuch wants to know what a “special need” a prosecutor would need to show to subpoena a president’s records. Francisco: only as a last resort.
This differs from Sekulow, who wants absolute immunity. Francisco knows this argument is garbage.
Carey Dunne up for NY now. His job is easier than Letter’s. “The floodgates have been open for years but there’s been no flood,” referring to Trump’s lawyers’ slippery slope argument that without protection there’d be all these state lawsuits against sitting presidents.
Dunne is doing well; concedes that there are limiting principles to NY’s approach. Rejects Trump’s suggestion that NY DA should be forced to go to federal court first to get permission to get a subpoena, implicates federalism concerns.
RBG gives Dunne an opening to beat down the ‘parade of horribles’ suggested by Trump where hundreds of prosecutors attack the president. You still need jurisdiction, which NY obviously has over Trump.
Breyer: doesn’t get why the way we already do it is insufficient, everyone’s interests are already protected.
Alito: imagine a prosecutor has a higher burden, e.g., must show info can only be obtained from one source.
Dunne: that’s already the case, objective relevant standard already implicit.
Alito now talking about grand jury secrecy and different states having different standards.
Dunne unaware of different secrecy laws less strict than NY’s, which is same as federal standard.
Alito; but prosecutors leak things to the NY Times! Yeesh.
Sotomayor: wants Dunne to distinguish what Dunne is suggesting is already needed to be shown vs DOJ’s “heightened need standard.”
Kagen going after Sekulow’s absolutist language.
Dunne takes it as an opportunity to beat back speculative notion of presidential distraction.
Dunne is so much better prepared than Letter. It would’ve been great had Dunne argued the House’s side.
Real interesting question by Alito, asking whether SCOTUS’ predictions about impact on presidency in Clinton v Jones was borne out by history, foreboding that he’d like to overturn Clinton v Jones.
Dunne’s answer was that problem in Clinton Jones was about perjury, not that the court let things get out of control by blowing standard open.
But Dunne’s answer less interesting than the question. I think it’d be very healthy if the court revisited its past predictions which underlie its decisions (see Citizens United), but if Clinton v Jones is overturned in service to Trump it’ll be a new level of hypocrisy.
Jay Sekulow has some additional yelling to do. It’s so weird how Trump changed him. Not that I ever agreed with him, he’s a religious zealot, but he’s modified his tone similar to other presidential enablers to be more punchy and dickish.
And that’s a wrap. If you’ve read this far, you have earned a Wonka Golden Ticket.
