WASHINGTON – The highly anticipated Supreme Court arguments Tuesday over President Donald Trump’s efforts to block disclosure of his income tax returns and private financial records suggested the possibility of a mixed outcome.
Moreover, several justices suggested there might be more work for lower courts to do, which could delay any turnover of the documents being sought by congressional Democrats and Manhattan’s district attorney until after November’s election.
In more than three hours of teleconferenced hearings, broadcast to all who wanted to listen in, the justices debated presidential authority and accountability from all angles, and now they will meet in private to try to reach consensus.
A few themes emerged.
In general, the justices seemed more troubled by subpoenas issued by three House committees than with the ones coming from New York District Attorney Cyrus Vance Jr. None indicated they agreed with the assertion from Trump’s private lawyer Jay Sekulow that the president enjoyed immunity from investigation while in office. There was no discussion of whether the court lacked authority to decide the merits of the dispute, even though the justices themselves had requested briefing on the subject.
The court’s previous major decisions involving presidential authority were unanimous: Richard M. Nixon was ordered to turn over White House tape recordings, and Bill Clinton was required to respond to a sexual harassment suit filed by Paula Jones.
A 9-to-0 ruling did not seem a possibility after Tuesday’s proceedings. But some, led by Chief Justice John Roberts Jr., seemed to be looking for middle ground that would avoid a deeply split decision in a highly charged political atmosphere.
In the congressional case, for instance, Roberts said Trump’s lawyers recognized Congress has at least some right to issue subpoenas, and lawyers for Congress acknowledged there were limits.
“So it sounds like at the end of the day this is just another case where the courts are balancing the competing interests on either side,” Roberts said.
Trump’s two choices for the court, Justices Neil Gorsuch and Brett Kavanaugh, asked neutral-sounding questions of both sides. In the case involving Congress, Kavanaugh tried to frame the court’s mission.
The question “boils down to, how can we both protect the House’s interest in obtaining information it needs to legislate but also protect the presidency?” Kavanaugh asked. “How can the court balance those interests?”
Justice Elena Kagan displayed some agreement with both sides. On the one hand, she suggested the president’s lawyers were asking for too much.
“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, Kagan, one of the court’s liberal justices, said.
But later she suggested one of the congressional subpoenas was perhaps too much. “When the Congress doesn’t seem to be looking into the president, but in a much broader topic, might there not be some heightened need for Congress to say why it is that they’re focusing on presidential records for that purpose?”
Likewise, at times Kagan’s fellow liberal Justice Stephen Breyer seemed to think the court’s past decisions settled the matter. But he expressed concern, as he had more than two decades ago in Clinton v. Jones, that courts needed to be mindful of the demands placed on the president.
“My problem is there may be burdens,” he said, adding that the requests from Congress go “way, way, way beyond just tax returns.”
The congressional committee cases – Trump v. Mazars and Trump v. Deutsche Bank – involve attempts by three different House committees to get the president’s business records from his accounting firm and financial institutions.
The congressional subpoenas followed testimony from Trump’s former fixer, attorney Michael Cohen, who told lawmakers that Trump had exaggerated his wealth to seek loans. Two committees subpoenaed Capital One and Deutsche Bank as part of their investigation into Russian money laundering and potential foreign influence involving Trump.
Boston lawyer Patrick Strawbridge said the congressional demands were “unprecedented,” and pose “an obvious problem with respect to harassment and infringement upon the ability of the executive to discharge his duties 24 hours a day.”
Deputy Solicitor General Jeffrey Wall, representing the Justice Department, picked up on the theme. “The potential to harass and undermine the president and the presidency is plain,” he said. “It’s not much to ask that before the House delves into the president’s personal life, it explain in some meaningful way what laws it is considering and why it needs the president’s documents in particular.”
House General Counsel Douglas Letter said the House has explained how its investigation into Trump could inform legislation, but the justices did not seem satisfied.
“Your test is not really much of a test. It’s not really a limit,” Roberts told Letter.
In fact, added Justice Samuel Alito Jr., one of the court’s conservatives, it is “no protection at all.”
The court’s liberal justices seemed more accommodating to Congress’ position that it has an important job to do in investigating potential wrongdoing and then proposing legislation to correct it.
“For example, the Ethics in Government Act, Congress may decide that it needs to beef up that legislation,” said Justice Ruth Bader Ginsburg. “It may also decide that for financial disclosure purposes, there should be disclosure of tax returns . . . Investigate to see if you need legislation of that sort.”
Ginsburg noted that only Trump has withheld his tax returns; every other president since Jimmy Carter has disclosed voluntarily.
In the third case, Trump v. Vance, the district attorney is also seeking records from the Mazars firm as part of an investigation into whether Trump business records were falsified to cover up a hush-money scheme just before the 2016 election to silence two women – adult-film actress Stormy Daniels and former Playboy model Karen McDougal – who alleged that they had affairs with Trump. Trump has denied their claims.
Justices on both sides found less to criticize when Carey Dunne, general counsel for Vance’s office, spoke.
Sekulow made the bold claim of the president’s immunity in that part of the argument. He warned of 2,300 district attorneys across the country with political agendas who would be emboldened to investigate Trump.
But Ginsburg pressed Sekulow about whether the president was the one person exempt from the grand jury’s right to “every man’s evidence” even when the information it’s seeking is not confidential or privileged.
Courts have long recognized that “the president is not to be treated as an ordinary citizen,” Sekulow said. “He has responsibilities. He is himself a branch of government. He is the only individual that is a branch of government in our federal system.”
That prompted a follow up from Kagan: “But it’s also true and, indeed, a fundamental precept of our constitutional order that a president isn’t above the law.”
Solicitor General Noel Francisco took a more nuanced position in his defense of Trump.
Because the president is not an ordinary citizen while in office, prosecutors must demonstrate a “heightened showing of need” to subpoena the president’s private records, Francisco said.
In a brief to the court, the Justice Department said some factors include a showing that the information is “directly relevant to issues that are expected to be central to the trial” and that the evidence is “not available from any other source.”
Dunne generally agreed there should be higher standards, but said his office essentially had already met them. A federal judge in New York has determined there is no burden on the official duties of the president because the subpoenas are directed at his accounting firm, and that “our investigation is well-founded and brought in good faith.”
Dunne said the court’s decision in the Clinton case means a president cannot be shielded from every sort of private distraction, including some forms of legal process.
Adopting the Justice Department’s standard, he said, would just mean more delay and give the president the temporary immunity he is seeking.
Investigators examining the conduct of other people and businesses beyond the president risk losing evidence as memories fade and witnesses become unavailable.
“We’ve already lost nine months of time in this investigation due to this lawsuit,” Dunne said.
Responding to Sekulow, Dunne said there was no reason to question the integrity of district attorneys.
“There’s no historical support for this claim, which flies in the face of federalism,” Dunne said. “The supposed floodgates have been open for generations and there’s never been a flood.”
The court heard the three landmark constitutional cases by conference call because of the coronavirus pandemic, making it possible for the public to listen to the justices’ questions in real time.
The timing of the hearings means the high court’s rulings will probably land this summer in the midst of the 2020 presidential election campaign.
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The Washington Post’s Jonathan O’Connell, David A. Fahrenthold and Felicia Sonmez contributed to this report.