President Trump arriving at Joint Base Andrews after a trip to a mask production facility in Phoenix last week. Photo / Doug Mills, The New York Times
In a lively oral argument via teleconference, the justices considered history and the separation of powers in weighing whether to allow subpoenas for the president's records.
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 Donald Trump's business affairs.
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 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.
The first argument of two the court heard, which dealt with the congressional investigations, seemed to go better for Trump. The justices seemed more skeptical of the president's case during the second argument, in which Jay Sekulow, a lawyer for Trump, argued that he was absolutely immune from criminal investigation while he remained in office.
There was no question that the questions before the court were momentous and consequential — for Trump, for the court and for the separation of powers in government.
"The subpoenas here are unprecedented in every sense," said Patrick Strawbridge, the lawyer representing Trump in the cases on inquiries from Congress.
Several justices disputed that, saying the Watergate investigation of President Richard 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 Kavanaugh, who was appointed to the court by Trump.
The justices' questions mostly reflected their usual inclinations, with the more liberal members of the court expressing scepticism of Trump's arguments and the more conservative ones saying they were worried about opening the door to partisan harassment of the president.
But Chief Justice John Roberts 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 interests the Supreme Court sought to balance included congressional power to gather information to inform legislative choices on the one hand and the unique constitutional status of the presidency on the other.
Justice Sonia Sotomayor said inquiries into foreign influence over US elections were doubtless proper. But she and Kavanaugh indicated that the president's medical records would be out of bounds.
Justice Elena Kagan said that Congress and the president had in the past worked out their differences through informal accommodations. Now, she said, Trump was asking the court to place a "10-ton weight" on one side of the balance.
Strawbridge responded that "these subpoenas fail every hallmark of legitimate legislative investigation."
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.
Jeffrey B. Wall, a lawyer for the Justice Department who argued in support of 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."
Douglas N. Letter, general counsel of the House of Representatives, said the president's arguments were astonishing. "History really matters here," he said.
The core question in the case was whether the House committees had a legitimate legislative need for the information they sought.
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.
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."
The subpoenas sought information from Trump's accountants or bankers, not from Trump himself, and the firms have indicated that they will comply with the court's ruling. Had the subpoenas sought evidence from Trump himself, there was at least a possibility that he would try to defy a ruling against him, prompting a constitutional crisis.
One subpoena, directed to 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 Trump inflated and deflated descriptions of his assets on financial statements to obtain loans and reduce his taxes.
When 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.
In October, a divided three-judge panel of the US Circuit Court of Appeals for the District of Columbia refused to block the subpoena.
Another set of subpoenas came from the House Financial Services and Intelligence Committees and were addressed to two financial institutions that did business with Trump: Deutsche Bank and Capital One. They sought an array of financial records related to the president, his companies and his family.
The 2nd US Circuit Court of Appeals, 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 first argument lasted more than 30 minutes longer than the allotted hour.
The second argument, which began immediately after the first, concerned a subpoena to 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 Trump and the Trump Organization played in hush-money payments made in the run-up to the 2016 election.
Both Trump and his company reimbursed the president's former lawyer and fixer, Michael D. Cohen, for payments made to pornographic film actress Stormy Daniels, who claimed that she had an affair with Trump.
Cohen was also involved in payments to Karen McDougal, a Playboy model who had also claimed she had a relationship with Trump. The president has denied the relationships.
Trump sued to stop his accounting firm from turning over the records, but lower courts ruled against him. In a unanimous ruling, the 2nd US Circuit Court of Appeals said state prosecutors may require third parties to turn over a sitting president's financial records for use in a grand jury investigation.
Written by: Adam Liptak
Photographs by: Doug Mills and Anna Moneymaker
© 2020 THE NEW YORK TIMES
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