The U.S. Supreme Court held oral arguments Tuesday in a pair of cases focusing on efforts by Democrats and prosecutors in New York to obtain President Donald Trump’s private financial and business records, including his personal tax returns.
The oral arguments were broadcast live on C-SPAN, thanks to the fact that they were conducted remotely, due to coronavirus-related restrictions on the Court. That gave the public an opportunity to listen, in real time, to proceedings.
In the first case, Trump v. Mazars, the Court considered subpoenas by three different congressional committees for Trump’s tax returns, made to a third party, an accounting firm, that handled his finances in his private life before he became president. The president’s attorney, Patrick Strawbridge, noted that no subpoena for the president’s personal information had ever been upheld, and that Congress could not be allowed to abuse its power by claiming a flimsy legislative purpose as a pretext.
Justice Clarence Thomas — after what appeared to be technical difficulties, SCOTUS blog reported — asked a question about the dissenting opinion by D.C. Circuit Judge Neomi Rao, in which she distinguished between the more limited powers a congressional committee has when it is conducting its legislative function, and the more expansive powers it has when it is conducting an investigation for the purpose of impeachment, which Congress was not officially doing at the time. Strawbridge replied that the congressional committees had waived any consideration of an impeachment investigation.
The liberal justices questioned Strawbridge about the past constitutionality of congressional subpoenas to the president in Whitewater and Watergate, which at the time they were made, were not part of an official impeachment investigation.
Justice Sonia Sotomayor asked Strawbridge whether there was no legitimate purpose in investigating the president’s possible foreign ties (though Special Counsel Robert Mueller’s investigation found last year that there was no “Russia collusion”).
In questioning Douglas Letter, general counsel for the Democrat-controlled U.S. House of Representatives, Chief Justice John Roberts suggested that the House’s supposed limitation on its own subpoena power was in fact “limitless.”
“Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write?” he asked.
Letter could not, but in reply to further questions by Roberts, he replied that the limit might be “interfering with the president’s ability to cary out his Article II functions,” which he said no one had claimed Congress was doing.
Many observers, listening to the oral arguments, felt that Letter failed to establish clear limiting principles for the House’s use of the subpoena power. Alan Dershowitz, who represented the president in the Senate impeachment trial, observed wryly that none of the justices asked whether the House’s argument would let Congress subpoena judges’ personal financial records.
Listening to Supreme Court. The question no one asked:
What if congress had issued comparable subpoenas directed at the justices or judges? Would the issue be the same?
— Alan Dershowitz (@AlanDersh) May 12, 2020
In the second case, Trump v. Vance, New York County’s district attorney tried to justify a state grand jury’s subpoena for the president’s private financial records for the purposes of a criminal investigation. Previous precedent has established that the president’s private information can be subpoenaed by a federal grand jury in a criminal case, but the question of a subpoena at the state level remained unanswered.
Justices seemed skeptical on both sides. Justice Ruth Bader Ginsburg, one of the Court’s most liberal members, raised the question about whether granting the subpoena would open the floodgates to thousands of state and local prosecutors to use grand jury subpoenas to harass the president (whether this one or future ones).
Carey Dunne, general counsel for the New York County District Attorney, argued against a higher standard for subpoenas to the president regarding his (or her) conduct as a private citizen, saying it would allow the president to escape accountability.
Dunne claimed that the request to obtain Trump’s financial records was “not born of political animus or intent to harass.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.