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Argument analysis: A marathon debate, and no clear winners, in debate over Trump tax returns

The battle over efforts to obtain President Donald Trump’s tax returns reached the Supreme Court in two oral arguments today. Over a year ago, committees in the Democratic-controlled House of Representatives and a Manhattan district attorney issued subpoenas for the president’s financial records to the president’s longtime accountant and lenders, but the president has tried to block those institutions from complying with the subpoenas. After nearly three-and-a-half hours of oral arguments today, it appeared that the results could be mixed for Trump. A majority of the justices appeared skeptical of claims, made by a lawyer for the House of Representatives, that the committees have broad power to request the president’s personal papers, but they seemed equally dubious in the second argument that the president has the categorical immunity from state grand-jury proceedings that he is claiming.

First up today was the dispute between the president and the House of Representatives, where three committees issued subpoenas for the president’s financial records in April of last year. The House Committee on Oversight and Reform said it wanted documents from Mazars, the president’s longtime accountant, as part of an investigation into the adequacy of government ethics laws, while the House Committee on Financial Services and the House Permanent Committee on Intelligence issued subpoenas for documents from Deutsche Bank and Capital One, two of the president’s biggest lenders, as part of an investigation into possible foreign influence in U.S. elections.

Arguing for the president, lawyer Patrick Strawbridge described the committees’ subpoenas as “unprecedented in every sense.” No court, he argued, had ever upheld Congress’ use of its subpoena power to obtain the personal papers of a sitting president. The committees’ “obvious overreach” would be enough to invalidate the subpoenas “even in a typical case,” Strawbridge told the justices, but this is not a typical case. “The committees have not even tried to show any critical legislative need for the documents these subpoenas seek.”

Chief Justice John Roberts kicked off the questioning by asking Strawbridge to clarify his argument: Does Trump contend that that the House of Representatives can never subpoena the president’s personal papers, or does he agree that it might have the power to do so in at least some cases?

Strawbridge conceded that the House at least theoretically has the power to subpoena the president’s personal papers, although such a subpoena would have to meet a high standard. That response prompted Roberts to suggest that the case boils down to one in which “the courts are balancing the competing interests on either side.” The justices then spent much of the next hour and a half trying to figure out how to balance those interests and what the limits on Congress’ subpoena power might be.

Strawbridge reiterated that Congress could exercise its power to obtain the president’s personal documents only in very limited situations. Answering a question from Justice Clarence Thomas, he stressed that although Congress can seek information relevant to legislation that it might be considering, such information should normally be “forward-looking” or “aggregated information,” rather an effort to “reassemble a precise factual history.”

Justice Stephen Breyer took issue with Strawbridge’s efforts to cabin the kinds of information that Congress could seek with a subpoena. Under that definition, Breyer (who served as an assistant special prosecutor during Watergate) told Strawbridge, subpoenas issued during Watergate might have been unlawful. And if courts during Watergate required presidential records to be handed over to prosecutors, Breyer continued, why shouldn’t the standard for a president’s personal papers be even weaker?

Strawbridge emphasized a theme that recurred during the arguments today. A ruling against the president would pose “an obvious problem with respect to harassment and infringement upon” the president’s ability to do his job “24 hours a day.” These kinds of subpoenas, Strawbridge added, will be “particularly troublesome and burdensome.”

Justice Sonia Sotomayor was troubled by Strawbridge’s argument. There is a long history, she asserted, of Congress’ obtaining records from presidents, and the Supreme Court has said that such subpoenas are valid as long as there is a “conceivable legislative purpose” and the “records are relevant to that purpose.” In her view, there is a “tremendous” problem if courts require more than that when a committee is just beginning its investigation.

Justice Elena Kagan echoed Sotomayor’s concerns. This isn’t the first conflict between Congress and a president, she stressed, but the Supreme Court has never had to weigh in on this issue because the two branches have always worked it out before. But what Trump is asking the Supreme Court to do in this case, Kagan complained to Strawbridge, is to “put a kind of ten-ton weight on the scales between the president and Congress,” which would make it “impossible for Congress to carry out” oversight and do its job.

Justice Neil Gorsuch seemed to suggest that courts should stay out of the battle over the subpoena altogether. Why, he asked Strawbridge, shouldn’t the Supreme Court “defer to the House’s views about its own legislative purposes?” After Strawbridge’s response, Gorsuch followed up, explaining that his question “was more practical”: “Why is this subpoena not supported by a substantial legislative need?”

Arguing for the federal government, which filed a “friend of the court” brief supporting Trump, Deputy Solicitor General Jeffrey Wall argued that the cases before the court are “truly historic.” Because the “potential to harass and undermine the president and the presidency is plain,” Wall explained, it’s “not much to ask for” Congress to explain what laws it is considering and why it needs the president’s documents. These subpoenas at issue in these cases, Wall concluded, “don’t even come close.”

Roberts pressed Wall on the government’s contention that the subpoenas in these cases were intended to investigate, rather than to serve as the basis for legislation. If that is a relevant consideration, Roberts queried, “how is a court supposed to look at it? Should a court be probing the mental processes of the legislators?” Should legislators be cross-examined about their real purpose?

Justice Ruth Bader Ginsburg seemed to suggest that requiring Congress to have a legislative purpose in mind when it issues a subpoena has the inquiry backward. You have to investigate to decide what kind of legislation you want to draft, Ginsburg scolded Wall. You want to figure out what the problem is first and then decide how legislation can address it. If a policeman on the beat stops a car and then later explains that he did so because the car ran a stop sign, courts aren’t allowed to second-guess the officer’s subjective motive, Ginsburg noted. “So, here,” Ginsburg concluded, “you’re distrusting Congress more than the cop on the beat.”

Wall pushed back, agreeing with Ginsburg that Congress can investigate to figure out what kind of legislation might be needed. But when the president is involved in that investigation, Wall made clear, there is simply a higher standard because Congress doesn’t have as much leeway in regulating the president as it would in investigating anyone else and because “of the dangers of harassing and distracting and undermining the president.”

Arguing for the committees, House lawyer Douglas Letter urged the justices to uphold the subpoenas.  Letter told the court that the House had “put legislation where its mouth is” – that is, it had “specifically provided bills” demonstrating the purpose for the subpoenas – and it had ratified the subpoenas with an “extremely clearly worded” resolution. And Letter assured the justices that there are limits on the House’s ability to issue subpoenas.

The subject of limits on the House’s subpoena power would occupy much of Letter’s time at the lectern, starting with questions from Roberts, who asked Letter to provide a “plausible example of a subject that you think is beyond any legislation that Congress could write” and therefore could not be the target of a subpoena. When Letter responded that Congress’ legislative power is “extremely broad,” Roberts shot back that the House’s test “is not really much of a test. It’s not a limitation. And it doesn’t seem in any way to take account of the fact that” the subpoena involves the president.

Justice Samuel Alito described himself as “somewhat baffled” by Letter’s statement, in response to a question from Ginsburg, that “the protection against the use of a subpoena for harassment” of the president is “simply the assessment whether the subpoena is relevant to some conceivable legislative purpose.” “That’s no protection,” complained Alito, “is it?”

Alito followed up with a question about whether it would be permissible for Congress to subpoena the financial records of a sitting president and his family as part of a study of possible middle-class tax reform. Letter responded that “it certainly could be” – a response likely did not help his case with Alito.

Gorsuch also pushed Letter to provide a “limiting principle.” Gorsuch dismissed the idea that a subpoena needs to be relevant to a legislative purpose as “very, very broad” and “maybe limitless,” and he added that some of the other limits that Letter had offered would not shield the president’s private records. Moreover, Gorsuch suggested, when “everything is online and can be handed over on a disk or a thumb drive,” the argument that a subpoena is too burdensome “pretty much disappears too.” And if none of those considerations limit Congress’ power, Gorsuch asked, what does?

The court’s junior justice, Brett Kavanaugh, seemed to sum up several of the justices’ thoughts in his questions for Letter. On one hand, Kavanaugh observed, Trump and the federal government say that upholding these subpoenas would be a grave threat to future presidencies. On the other hand, the House argues that the subpoenas should be upheld as long as they are relevant to a legislative purpose – but, Kavanaugh added, almost everything can be characterized as pertinent to a legislative purpose. How, Kavanaugh asked, can the justices protect the House’s interest in obtaining the information it needs but also protect the presidency? Why shouldn’t the court require the House to show that the information it seeks is “demonstrably critical” (or something along those lines) to balance these strong competing concerns? If the court articulates a standard that is too deferential to Congress, Kavanaugh worried aloud later, will it open the door to too many intrusive inquiries?

After over an hour and a half, the justices moved to the second dispute involving the president’s tax returns, this one arising from a New York grand jury investigation that resulted in a subpoena to Mazars. The president went to federal court in New York, where he argued that the subpoena cannot be enforced while the president is in office.

Arguing for Trump in this case, lawyer Jay Sekulow told the justices that the Constitution requires “[t]emporary presidential immunity.” If the subpoena in this case is allowed to stand, he argued, the ruling will “weaponize” local district attorneys, many of whom are elected, to “harass, distract, and interfere” with the sitting president. This is not “mere speculation,” Sekulow assured the justices, but is instead “precisely what has taken place in this case.”

But Sekulow faced skepticism from all sides. Roberts noted that Trump is not arguing that a grand jury cannot investigate the president, only that the grand-jury subpoena cannot be enforced. When Sekulow agreed that Trump is only seeking immunity from the subpoena, Roberts was somewhat incredulous. So, “it’s okay for the grand jury to investigate, except it can’t use the traditional and most effective device that grand juries have typically used, which is the subpoena?” To the extent that Trump argues that the harm to the president comes from the distraction of the subpoena, Roberts continued, the Supreme Court in Clinton v. Jones, allowing a civil suit against then-President Bill Clinton, rejected the idea “that the distraction in that case meant that discovery could not proceed.”

Breyer also suggested that the court’s ruling in Clinton v. Jones weighed against the kind of categorical ban that Trump advocated. Under Clinton v. Jones, Breyer observed, there could be “tens of thousands of people who might bring lawsuits” against the president. Why, Breyer asked, wouldn’t it be enough to apply the same standards to the president that would apply to everyone else? The president can come to court and argue that the subpoena is “unduly burdensome,” and a court can make that determination.

Alito resisted the idea of a categorical bar, even if he might impose a higher standard than Breyer. Couldn’t there be, he asked Sekulow, “at least some circumstances” in which a local prosecutor could subpoena a sitting president’s records – for example, if the prosecutor believed that information about a third party’s commission of a crime is not available anywhere else and that waiting until the end of the president’s term would be too late?

Gorsuch returned to Clinton v. Jones, asking Sekulow to distinguish it from Trump’s case. How, Gorsuch asked, “do we avoid the conclusion that the president wasn’t subject to some special immunity” in that case “but here is?”

Sekulow reminded Gorsuch that this case is not the only one involving requests for Trump’s personal records, but Gorsuch parried, “How is this more burdensome, though, than what took place in Clinton v. Jones?” In that case, Gorsuch stressed, the plaintiffs wanted to depose a sitting president; in this case, the grand jury is simply seeking Trump’s records from someone else.

Arguing for the federal government, Solicitor General Noel Francisco offered the justices an alternative to the categorical immunity that Trump seeks. At a minimum, Francisco told the court, a prosecutor should have to show that he really needs the president’s records. This “special needs” standard, Francisco assured the justices, would balance the prosecutor’s interests against the president’s ability to do his job.

Francisco faced a variety of questions about whether the government’s proposed standard might still be too strict and how it would operate in practice, but the government’s more nuanced approach seemed more palatable to most justices than the absolute position taken by Trump. And perhaps significantly, Gorsuch hinted that the subpoena in this case might meet even the government’s more stringent “special need” test, as he asked Francisco about a hypothetical in which a local prosecutor subpoenaed documents to investigate a tax infraction. Why, wouldn’t that qualify under the “special need” test?

Arguing for the Manhattan district attorney’s office, Carey Dunn conceded that his office could not investigate the president for his official acts or investigate him while he is in office. But, Dunne made clear, this case involves a subpoena to a third party, with no claim that his office acted with any political animus or intent to harass. Under Trump’s rule, Dunne stressed, the president would be immune from any legal inquiry while he is in office, even if the statute of limitations would ultimately mean that he could never be held responsible.

Like Francisco, Dunne agreed that requests like the ones from his office should be subject to a higher standard, but he disagreed with Francisco and the federal government about exactly what that standard should look like. In Dunne’s view, the heightened standard comes into play only after the president has shown that enforcing a subpoena would make it harder for him to do his job. But once the president makes that showing (which, Dunne emphasized, Trump has not done here), then the prosecutor must demonstrate that there is both an objective basis for the investigation and a reasonable probability that the subpoena will lead to relevant information.

Dunne cautioned that the government’s proposed standard could in practice confer the same absolute immunity that Trump advocates. Because you can’t indict the president while he is in office, Dunne explained, you don’t need the documents then. But if you wait until he leaves office, Dunne continued, you run the risk that evidence will be lost or memories will fade. Moreover, other people or businesses could wind up escaping criminal liability because of the statute of limitations. The issue before the court, Dunne concluded, is “extremely narrow but extremely important.”

In his rebuttal, Sekulow told the justices that “[w]hat’s really happening here could not be clearer. The presidency is being harassed and undermined” with a subpoena that was issued for “illegitimate reasons.” “The Framers saw this coming,“ Sekulow argued, and “structured the Constitution to protect the president from this encroachment.” But it wasn’t apparent that a majority on the court agreed with Sekulow that the subpoenas should be quashed entirely. A more likely scenario seems to be one in which litigation over the subpoenas continues, even if it isn’t entirely clear which standard will apply.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Argument analysis: A marathon debate, and no clear winners, in debate over Trump tax returns, SCOTUSblog (May. 12, 2020, 6:23 PM),