High Court Set to Hear Historic Trump Financial Records Cases

"These committees are not legislating," Trump's brief in the case states. "They are avowedly engaging in law enforcement. All of them — to one degree or another — have acknowledged that the purpose of the investigations is to determine whether the president engaged in wrongdoing."

The committees see the case differently. Congress' power to investigate, they argue, is broad and implicit in the structure of the Constitution and there is a rich history of committees conducting investigations to ensure the laws on the books are functioning properly and to see if new laws are necessary.

The court should give Congress a wide berth to exercise its legislative powers, the committees argue, and court precedent requires the subpoenas to be upheld so long as there is valid legislation that could come from them, regardless of if there is a separate, non-legislative purpose behind the requests.

"In 230 years, this court has never invalidated a congressional subpoena that was part of an ongoing congressional inquiry," the committees' brief states. "Petitioners and the solicitor general give this court no valid reason to do so for the first time here."

Supporting Trump, the Justice Department argues the committees must show the information they seek is "demonstrably critical" to their legislative plans, a bar it says the committees have not met with the subpoenas. The agency further argues the fact that the Financial Services Committee and Intelligence Committee issued virtually identical subpoenas but claim a different legislative purpose betrays that the subpoenas are not meant to turn up documents that will inform legislation.

Chemerinsky said the Justice Department's proposed test would up the standards Congress must meet to issue subpoenas.

"I think what it's trying to do is put a higher burden on Congress to justify a subpoena than courts have ever done before," Chemerinsky said.

After initial briefing in the cases, the court asked each side to file additional briefs explaining whether the legal principle that courts should generally stay out of political disputes between the other branches has any impact on the case.

Trump's attorneys argue it does not and that the cases are justiciable. The court has just as much ability to rule on the validity of the subpoenas as it does to say whether an act of Congress is constitutional and the case would not require the justices to make a policy judgment, Trump argues.

On this point, the House and Trump agree. After all, the House argues in its supplemental brief that the court has a history of ruling on the validity of congressional subpoenas.

GianCarlo Canaparo, a legal fellow at the Heritage Foundation, said the supplemental briefing indicates the justices are considering the case not just in terms of a fight between Trump and Democrats in Congress, but in the context of the larger structural changes their decision might bring on.

"When the court is taking this long view of things and they step into this case and see it is political whirlwind, that is kind of a cue to them," Canaparo said in an interview. "Because if a case involves the political branches it clearly has a political element to it — apart from the legal questions — maybe it should take a pause."

New York Subpoena

The second arguments the court will hear Tuesday will be over a grand jury subpoena  New York City District Attorney Cyrus Vance issued to Mazars as part of an investigation into alleged hush-money payments made to adult film actress Stormy Daniels. That subpoena is nearly identical to the House Oversight subpoena, but also requests Trump's tax returns. 

Trump's tax returns have been the target of Democrats since he broke with historical precedent and refused to release them during the 2016 presidential election.

The president sued to block the subpoena in September and a federal judge dismissed the suit, first saying it should have been pursued in state court and then ruling Trump did not have immunity.

The Second Circuit upheld the denial of the injunction, though it did not endorse the lower court's view that the case should have gone through the state courts. The appeals court held presidential immunity does not extend to purely investigative measures like a grand jury subpoena.

In briefs to the Supreme Court, Trump argues the president is "absolutely immune" from state criminal process and that he is the target of the subpoena even though it was served on Mazars. Holding otherwise would violate the supremacy clause of the Constitution and subject the executive to the politically motivated prosecutions of state and local prosecutors across the country, he argues.

Local prosecutors would have major incentives to use criminal proceedings to investigate the president over political disagreements and allowing probes like that to proceed would "inevitably distract, burden and stigmatize the president" and prevent him from carrying out official duties, Trump claims.  

"The president cannot effectively discharge those duties if any and every prosecutor in this country may target him with criminal process," Trump's brief states.

Again supporting Trump, the Justice Department argues if the court endorses Vance's subpoena, local prosecutors would inevitably "use such subpoenas to register their disapproval of the president's policies."

But Vance argues the subpoena is valid because it does not concern Trump's official duties, but rather actions that took place before he became president. The court's decision in Clinton v. Jones held that presidents are not immune from civil suits concerning conduct before they took office, while Nixon v. Fitzgerald granted immunity only to suits related to official actions.

Canaparo said it is interesting that both sides claim Clinton and Nixon support their argument, rather than the usual case where one side holds tight to precedents while the other tries to distinguish them from the case at hand.

The prosecutor argues there is a significant difference between the stigmas and burdens that come with indictment and prosecution and those that come with a subpoena. The Constitution does not prevent investigations that could result in a president being indicted once he leaves office, Vance argues, even if the Justice Department's guidance that a sitting president cannot be indicted is valid.

"To guarantee that a president, along with individuals and entities connected to him are not permanently above the law, the grand jury must be permitted to collect evidence and follow leads when memories are fresh and relevant evidence is available," Vance's brief states. "Nothing in the Constitution requires otherwise."

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