Roberts Sends Mixed Signals on Cases Involving Access to Trump’s Financial Records

In nearly four hours of oral arguments today about access to Trump’s financial records, Chief Justice John Roberts sent mixed signals on the matter, especially with the case involving the House of Representatives.

Trump’s position is the House has no “legitimate legislative purpose” to seek these records and argues this is “harassment” of the president and the presidency. But Roberts said the brief by Trump’s counsel’s, the petitioners, contradicts itself. He asked if the House can ever issue subpoenas to the president, and if it has power to do it and Trump essentially said no.

The cases are Trump v. Mazars and Trump v. Deutsche Bank — which deals with separation of powers — and Trump v. Vance, which asks whether a District Attorney may subpoena a third party as it relates to the president for a criminal investigation.

When questioning Jeff Wall, the Deputy Solicitor General, also arguing in favor of Trump, the Chief Justice said, “You said the purpose of these subpoenas was investigatory rather than legislative. If that is a pertinent consideration, I wonder how a court is supposed to look at it. Should a court be probing the mental processes of legislators? Should members of House committees be subject to cross-examination on why they are really seeking these documents?”

Justice Gorsuch echoed that, asking, “Why should we not defer to the House about its own needs? Why does this subpoena not provide a ‘substantial legislative need?’”

Much of the argument from Trump’s personal counsel, regardless of the justice he spoke to, is based on the claim that these subpoenas are “presidential harassment” and that these subpoenas are irrelevant and unprecedented. Justice Kagan was stunned by that assertion. “What it seems to me you’re asking us to do is essentially make it impossible for Congress to perform oversight and carry out its functions where the presidency is concerned.”

The House’s General Counsel, Douglas Letter’s limiting principle was fairly vague, saying it would be pertinent to legislation and not burdensome to the president’s daily job. But his chances may have taken a hit when he presented his side. “Tell me a subpoena that wouldn’t be valid under your standard?” Roberts asked. Letter stumbled for a bit and he couldn’t provide one. Roberts continued, “Your test is not much of a test. It’s not a limitation. It doesn’t seem in any way to take into account that we’re talking about the executive branch.”

Letter continued to have issues with his lack of clarity. Justice Alito — whose vote seems to be firmly with Trump in both cases — was shocked at the lack of a proper standard. “Your position is that the protection against the use of a subpoena for harassment is simply ‘the Court can take care of it.’ That’s not much protection. In fact, that’s no protection. You were not able to give the Chief Justice even one example of a subpoena that would not be pertinent to some conceivable legislative purpose, were you?”

In the arguments during Trump v. Vance, Alito appeared to run interference on behalf of Trump, which should be concerning to any objective observer. He asked Carey Dunne, Manhattan DA’s General Counsel, if he objected to a more demanding standard — a quite reasonable question. But then asked, “Suppose a state imposes no restriction of a revelation by a member of a grand jury or prosecutor? Prosecutors sometimes leak grand jury information, including to the New York Times,” seemingly singling out a newspaper some on the right view as liberal or anti-Trump. Dunne informed him New York’s laws are similar to the federal government as it pertains to grand juries and said rules prevent prosectors from turning over information. It got more contentious from there. “Your office is never requested by media in the NYC area to disclose confidential investigative materials?” inquired Alito.”They ask all the time. The answer is no,” Dunne responded.

The president is a special citizen to be sure, but he is also not a king, except to maybe Justice Thomas, who doesn’t seem to have problems shielding the president from any investigation. “What if the president says it is ‘impossible to do my job.’ Could a court shut down a grand jury investigation?” During Letter’s time to argue, Justice Thomas said we should look at these subpoenas in aggregation and not in isolation. “Why not look at if these debilitate the president? Why limit it to Congress? It could be many grand juries or prosecutors.” However, Dunne told the justices during the grand jury case that most state prosecutors have no justification for investigating the president and since Clinton v. Jones (1997) there haven’t been rampant investigations into the president. Letter then reminded the justices these subpoenas do not require anything from the president because they are targeted at third parties, but Thomas interrupted him: “I think we all know it’s about the president,” before the Chief played traffic cop and asked Justice Ginsburg to proceed.

When questioning Wall in the separation of powers cases, Thomas asked where to draw the line between a legislative subpoena and an impeachment subpoena. “What if it was clear that their intention was actually to remove the president from office rather than for pre-textual legislative reasons?” He said a DC Circuit opinion (a dissent from the majority’s view by a Trump appointee) said his sort of info should be requested under impeachment inquiry. Indeed, Judge Neomi Rao insisted that the House could only get Trump’s financial records through an impeachment-related subpoena.

“What would you say to insure against hypotheticals by the other side and prevent a subpoena that might just be for the sake of exposure,” asked Justice Sotomayor, one of the most liberal justices, trying to get Letter back on the right track. He claimed pertinence is key, saying the House has a need to focus on financial records to see if the president has any foreign interests that conflict with his duty as president. Better laws about conflicts of interest or the president dealing with government contracts would be relevant, said Letter, and he said these claims were made and litigated in lower courts.

Justices Gorsuch and Kavanaugh were also searching for a limiting principle and were understandably concerned with “limitless authority.” Kavanaugh pointed out that Trump’s counsel said asking for private records would be open season. “How can the Court balance the interests of Congress’s needs to legislate and the presidency,” asking about a “demonstrably critical” test the DOJ argued for. Letter thought that standard would tilt the scales too far in favor of the executive branch, saying it could violate separation of powers.

When the justices began a brief, second round of questions toward Mr. Letter, Justice Kavanaugh again desperately prodded for a limiting principle. “You haven’t established a limiting principle for a valid legislative purpose. That’s the concern I identified from other justices’ questions. I want to give you a chance to explain that.” But Letter failed to adequately ease his concerns, only saying that in Clinton v. Jones, the Supreme Court said “the courts are here and can monitor it.” Perhaps what summed up Mr. Letter’s obvious unpreparedness and ineffectiveness was when the Chief Justice asked him to wrap up, we could hear the rustling of papers in the background and Letter had to apologize for “flipping back through my notes.”

Strangely, while the DOJ also supported Trump on the New York grand jury case, they advocated for a more flexible standard than Mr. Trump. Trump’s counsel — Jay Sekulow, who also defended him during the impeachment trial four months ago — said temporary immunity is valid in this instance. “If [Trump] is not given that, the decision would weaponize thousands of local DAs who could harass or distract president. That has taken place in this case.”

Roberts was puzzled by this claim, as he was by Trump’s argument in the other cases. “You don’t argue that the grand jury can’t investigate the president, do you? It’s OK for a grand jury to investigate but it can’t use a subpoena, its most effective tool?” When Sekulow argued for absolute immunity only for the subpoena and not the entire investigation, Roberts was incredulous and he interrupted. “Your theory of distraction doesn’t match because wouldn’t you then object to the whole investigation? We weren’t persuaded in Clinton v. Jones when there was grand jury discovery in that case.” Justice Gorsuch asked Sekulow how to distinguish Clinton v. Jones from this case? “How do we avoid same conclusion as there? How is this more burdensome than what took place in Clinton v. Jones?” (Similar to this case, president Clinton argued in Clinton v. Jones that he has absolutely immunity as it relates to events which happened before his taking office. A grand jury was also used in the Clinton case.)

Justices Kagan and the Chief were not enamored by parts of the DOJ’s argument in support of Trump. Kagan said the standard developed in US v. Nixon was to protect against national security interests and confidential information but this is quite different. “Why should the federal judiciary treat state courts with so much suspicion? Why should it assume state courts will be more responsive to local interests?” The Solicitor General said, “New York judges are elected in partisan elections and because trial judges are elected in New York state, that might create local prejudices against the president.” This is a shocking thing for the U.S. Solicitor General to allege and it is doubtful Roberts likes his suggestion that New York’s judges are partisan, #resistance hacks.

Justice Breyer — President Clinton’s second Supreme Court appointee — remarked that any ordinary person who gets a subpoena can come in and say it’s unduly burdensome. “Why can’t the president say, ‘I’ll show you precisely how this is burdensome.’ And if he shows undue burden, he wins, and otherwise not?” Sekulow said that reasoning shows why evaluating these on a case-by-case basis is unwise, though that is exactly what Dunne asks for. When asked to respond to the assertion that the burdens of the subpoenas are categorical, Dunne said, “If we investigate those close to the president, do we have to stop because he becomes distressed about what may come out?” He emphasized there was attempt to politically undermine the president, which the District Court also found.

Dunne elaborated on a key concern of his in explaining why he should prevail: the statute of limitations expiring. Asked by Justice Sotomayor — President Obama’s first appointment — why a “heightened needs” standard would interfere with the grand jury process, Dunne informed her waiting to gather information until after he’s out of office is unworkable because of potentially losing evidence and witnesses. “We’ve already lost nine months of time in this investigation due to this lawsuit. Every minute that goes by without a decision on the merits is granting the kind of temporary absolute immunity that the president is seeking here.”

When pressed further by Justice Kavanaugh to explain the statute of limitations concerns he said their investigation is also looking at other individuals and businesses. “The clock is ticking,” he said, and “because there are third parties involved, forcing us to wait until the president leaves office could allow other individuals to be above the law.”

It was striking how much more prepared and precise Dunne was than the House’s General Counsel. He conceded a bit to the justices, particularly the conservative ones, and gave a more detailed answer to the standard they are looking to use. He said the Court must strike a balance between the executive branch’s Supremacy Clause power and the ability for states to investigate criminal violations. When asked to describe what a burden to the president might be, he was ready with examples: “if a president had to testify or show up for multiple days of depositions that would certainly cross a line.” He agreed that subpoenaing a sitting president is different, and requires some heightened need, but not to the expansive level the president’s counsel requests. These responses are more reasonable and pragmatic than the extremes the other side presents or the vagueness shown by Mr. Letter.

Trump may have a better chance of wining Mazars, the case originating from the House of Representatives, because the New York grand jury case totally hinges on Clinton v. Jones. It is also hard to tell if Gorsuch doubted Trump and the DOJ’s claims or if he was just asking tough questions to both sides — though he doesn’t appear to side with Alito and Thomas’s expansive view of the executive branch.

The Chief Justice is an institutionalist, as his biographer Joan Biskupic has written and spoken about at length. He is highly sensitive to the perception that the Court not be viewed as a partisan tool to help Republicans or push a certain agenda. The biggest example of this is the Affordable Care Act case — NFIB v. Sebelius — in which Roberts unexpectedly joined with the four liberals to uphold Obamacare’s constitutionality (in an election year). Another would be last year’s census citizenship question case in which Roberts reportedly changed his position behind the scenes and again sided with the four liberals to block the citizenship question. Besides clearly having issues with Trump and the DOJ’s legal reasoning, he may also not want this case to also be viewed as the five conservatives helping President Trump and kneecapping Congress’s power. Whether that means a 7–2, 6–3, or 5–4 decision against Trump — or even a decision in favor of the president — the cases not only impact the 2020 election but also presidential power for many years to come.

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