WASHINGTON (CN) — Supreme Court arguments stretched for more than three hours Tuesday with few hints from the justices on how they will resolve multiple subpoenas over President Donald Trump’s financial records.
In one showcase of the court’s concern for how their ruling could alter the way the separate branches of government interact, Justice Elena Kagan made a pointed comment early on while questioning Trump’s lawyer.
“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,” Justice Elena Kagan said.
Chief Justice John Roberts meanwhile stressed caution about tipping the balance in the other direction, giving Congress too much power so long as a subpoena could lead to some undefined legislation in the future.
“That’s what I’m suggesting, that your test is really not much of a test, it’s not a limitation,” Chief Justice John Roberts said to an attorney for House Democrats. “And it doesn’t seem in any way to take account of the fact that we’re talking about a coordinate branch of government — the executive branch.”
Seen as a potential swing vote in the cases, Roberts also tested the position of an attorney for the Justice Department.
“Should a court be probing the mental processes of the legislators?” Roberts asked. “Should members of House committees be subject to cross-examination on why you are really seeking these documents?”
Many of the justices sought to unroot the arguments from the current administration, given the precedential effect of the eventual ruling.
“The fact that what I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman exactly the same questions, that bothers me,” Justice Stephen Breyer said, expressing concern about the burden subpoenas might impose on a president. “So what do I do?”
In addition to the House subpoena, the justices are studying a subpoena of Trump’s personal finances by New York’s top prosecutor. Justice Ruth Bader Ginsburg asked whether insulating Trump from a request in a criminal investigation would hold the president above the law.
“We have said in the grand jury context that the public has right to every man’s evidence,” Ginsburg said. “Is it your position that that is, save for the president?”
With mere months to go before the next presidential election, the cases represent perhaps the most politically charged and closely watched of the term, promising resolution of a fight four years in the making.
The New York subpoena was issued by Manhattan District Attorney Cyrus Vance as part of an investigation into the hush money paid to adult film actress Stormy Daniels, who says she and Trump had an affair in 2006, when the future first lady was pregnant with the couple’s first child.
The Second Circuit upheld the subpoena of Trump’s longtime accounting firm Mazars, holding that presidential immunity does not extend to purely investigative measures like a grand jury subpoena.
Mazars was also subpoenaed by the House Oversight Committee for eight years of financial and accounting records related to Trump and his businesses. Yet more subpoenas were brought against Deutsche Bank and Capital One by the House committees on Financial Services and Intelligence, seeking years of financial information related to Trump, his companies and members of his family.
The House Oversight Committee said its subpoenas are necessary as part of a potential updates to government ethics and conflict-of-interest law, while the other committees are probing money-laundering and unsafe-lending laws, as well as foreign interference in the 2016 presidential election.
The D.C. Circuit and Second Circuit each upheld the subpoenas, finding Trump did not have immunity by virtue of being president and that the committees had valid legislative purposes for seeking the documents.
In opposing the congressional subpoenas, Trump attorney Patrick Strawbridge said the requests were not directed to any valid legislation, making them invalid because Congress’ power to subpoena is implied as part of its power to legislate.
The Consovoy McCarthy lawyer said upholding the subpoenas would throw off the balance of powers and subject future presidents to burdensome requests from political opponents seeking political gain.
“Now, it is no secret the relationship between the House of Representatives and the president is frayed, but this is neither the first nor the last time that one house of Congress will be at odds with the president,” Strawbridge said. “The rule that the court applies here will affect not only this president, but the presidency itself.”
Opposing the congressional subpoenas on behalf of the Justice Department, Deputy Solicitor General Jeffrey Wall said Congress has not given a detailed enough explanation for why it needs the documents. He said Congress should need to meet a “somewhat higher standard” when justifying subpoenas to the president because it is limited in how much it can regulate the presidency as a separate branch of government created under the Constitution.
House general counsel Douglas Letter countered that the subpoenas are necessary so Congress can make informed decisions on whether to update a range of laws that would apply to the president. The power for Congress to investigate is key to its power under the Constitution to legislate, and it cannot always predict where an investigation into the need for new laws might go, Letter said.
If Trump can show that the subpoenas are meant only to harass him, Letter said he could turn to the court for protection.
“There is no responsible claim here that all that’s going on is harassment,” Letter said. “And if there is, this court has said, we’re here.”
Letter further said the requests would not tie up Trump and prevent him from performing his official duties because they are issued to a third party.
Turning to the Vance subpoena, Jay Sekulow, who argued for Trump after leading his defense team during the Senate impeachment trial, attacked the subpoena as invalid because it goes against the supremacy clause and principles in Article II of the Constitution.
He said presidents have temporary immunity from criminal process while in office and that courts have consistently treated presidents differently than ordinary citizens. Facing the prospect of politically motivated criminal process from every prosecutor in the country would necessarily distract the president from his official duties, Sekulow said.
“The decision would allow any DA to harass, distract, and interfere with a sitting president,” Sekulow argued.
Also arguing for the Justice Department while supporting Trump, Solicitor General Noel Francisco appeared to catch the justices’ interest with a more limited version of Sekulow’s argument. He said prosecutors should be required to show a special need for the information they request from a sitting president under review from a federal court.
Carey Dunne with the Manhattan District Attorney’s Office was more accepting of the Justice Department’s argument but said a prosecutor should not need to make a heightened showing unless the president makes a valid claim that the request burdens his official duties.
He said courts should assess the validity of subpoenas from state and local prosecutors on a case-by-case basis, rather than with a broad rule.
Dunne said it is key for prosecutors to have access to evidence as their investigations play out, rather than having to wait for a president to leave office, as memories fade and documents become harder to find. He also cautioned that Sekulow’s argument could extend to insulating both the president and a collection of business associates and third parties whose information might involve the president.
The concern that prosecutors would issue wave upon wave of subpoenas in to score political points is a slim one, Dunne assured.
“There’s really no empirical basis in history for this apocalyptic prediction,” he said.