Oral Argument Summary: Supreme Court Hears Trump Financial Documents Cases

The current round of the protracted battle over President Trump’s tax returns is nearing its final act, and, thanks to a pandemic-induced twist, everyone could tune in. On May 12, the Supreme Court livestreamed more than three hours of arguments in three cases involving the validity of subpoenas issued to third parties for the president’s financial information. In the first oral argument, the Court heard Trump v. Mazars and Trump v. Deutsche Bank, which both concern the validity of congressional subpoenas issued to Trump’s accounting firm, Mazars, as well as to Deutsche Bank and Capital One. In the second oral argument, the Court heard Trump v. Vance, which concerns the validity of subpoenas issued to Mazars by New York County District Attorney Cyrus Vance Jr., pursuant to a criminal state grand-jury investigation. (A summary of the briefs and procedural history of each case is available here.)

As a practical matter, Mazars and Deutsche Bank will determine whether voters—or at least their elected representatives—can see the president’s tax returns before the November election and thereby evaluate for themselves whether the president has honestly represented his business career. As a legal matter, the court’s decision could clarify the limits on executive power in the face of congressional oversight. Meanwhile, the court’s decision in Vance will determine whether, and to what extent, state prosecutors can investigate a sitting president. Both cases will have significant implications for the ongoing debates over whether this president is beyond investigation.

Trump v. Mazars USA & Trump v. Deutsche Bank

Oral Arguments for Petitioner, Donald J. Trump.

The lawyer for Trump, Patrick Strawbridge, opens with the claim that the subpoenas at issue are “unprecedented in every sense.” No court has ever upheld the use of congressional subpoenas to procure the personal records of a sitting president for the purpose of legislation. Because Congress’s subpoena power is implied and explicit, it’s auxiliary and subordinate. When Congress uses that power against the president, it must yield absent “any longstanding tradition or particularly compelling showing of need.” Finding none here, Strawbridge proclaims that the Supreme Court should not write Congress the blank check it seeks and instead should reverse the lower court decisions.

Chief Justice John Roberts begins his questioning with a clarification: does Congress ever have power to subpoena the personal papers of the president? Strawbridge avoids a direct answer, but suggests that it’s hard to imagine when such a request might be permissible. Roberts interrupts to ask whether it’s conceivable that Congress may ever have such authority and that it is for the Court to decide whether Congress has exceeded any bounds. Strawbridge responds that, at the minimum, the court should review congressional subpoenas under a demonstrated-need standard applied in other cases.

Roberts jumps in again. So, this is just another case where courts are comparing the competing interests on either side? Strawbridge says he’s not asking the Court to do anything different than it would do in a normal case but that the restraints on the powers of Congress are emphasized here because it’s a separation of powers dispute.

Justice Ruth Bader Ginsburg next challenges Strawbridge’s assertions that this case is unprecedented and asks him to distinguish this case from other legislative subpoenas, like those in Watergate, Whitewater, and the Paula Jones suit. Strawbridge responds by saying that Watergate and Whitewater are “too recent” to qualify as history, and that the Court traditionally looks at extended precedents in separation of powers cases. Moreover, those cases didn’t directly address the power of committees to request those records.

Justice Clarence Thomas then asks whether there is any implied congressional power to request private documents. Strawbridge admits that there might be limited powers in some cases. Thomas pushes for clarification. Strawbridge states that, in some circumstances, Congress has implied powers to seek information relevant to its exercise of legislative powers, but that those requests traditionally take the form of forward-looking information, as the U.S. Court of Appeals for the D.C. Circuit recognized in Select Committee on Presidential Campaign Activities v. Nixon. Thomas again interjects, suggesting that the Select Committee highlights a distinction between an impeachment subpoena and a legislative subpoena. Strawbridge concedes that there is a distinction and that impeachment subpoenas when properly issued are co-extensive with the Court’s subpoena powers. But he says that distinction has no bearing here because the parties have waived any reliance on impeachment.

Justice Stephen Breyer, continuing the same line of questioning as Ginsburg and Thomas, asks Strawbridge to distinguish these subpoenas from prior situations––specifically the subpoenas issued by the Ervin committee during Watergate. Why should the court apply a higher standard to personal papers than it applies to the papers actually detailing the workings of the presidential office itself? Strawbridge argues that subpoenas for the president’s personal papers are particularly burdensome because they impinge on the president’s ability to fulfill his duties. Breyer follows up, slightly frustrated by Strawbridge’s argument. They go back and forth on whether the subpoenas issued by the Ervin committee were unlawful.

Justice Samuel Alito asks whether the House could justify a subpoena for the president’s personal records as a “case study” for more general legislation. Strawbridge says it could not, for that would open the door to infinite oppressive requests. He offers a parade of horribles. Apparently satisfied by that answer, Alito asks whether Congress has any powers to regulate the office of the president? Taking the hint, Strawbridge says no, not very much.

Justice Sonia Sotomayor interjects to emphasize that, contrary to Strawbridge’s characterization, there is a long history of Congress seeking records, and getting them, from presidents. And, in some of those cases—such as McGrain v. Daugherty—the Court has said that a congressional subpoena is valid so long as there is a conceivable legislative purpose. She warns that a tremendous separation of powers problem would arise from imposing a higher standard or clear statement rule on a congressional committee investigation. Sotomayor asks Strawbridge whether he is really disputing the stated purpose of the House Intelligence Committee subpoena to investigate efforts by foreign entities to influence the U.S. political process. Are the financial records sought not relevant to that purpose?

Strawbridge starts to answer, but Sotomayor quickly rejects his characterization of the subpoenas at issues as involving presidential financials. She emphasizes that this case is about the personal records of the president before he became president, not presidential financial records. Moreover, she points out, they’re not even Trump’s papers because he’s not in possession of them. Strawbridge says that the court, ever since Eastland, has recognized the ability of a person to challenge the production of papers in the hands of a third party. Strawbridge hastily concludes that whatever presumption this court has previously applied in cases that involved the separation of powers, it should not put any finger on the scale of Congress’s asserted legislative power in this case.

Justice Elena Kagan declares that Strawbridge appears to be asking the court to put a 10 ton weight on the scale between the president and Congress, thereby making it impossible for Congress to perform any oversight where the president is concerned. Strawbridge responds that these subpoenas fail every hallmark of a legitimate investigation, and whatever power Congress has to inform itself of the workings of government, those powers don’t extend here.

Echoing Breyer’s and Sotomayor’s earlier questions, Kagan asks why the Supreme Court should not use a lower standard here, rather than a higher one, since this case is about personal, not official, records? Strawbridge says that just because the documents are personal doesn’t mean that they’re not targeting the president and that harassment of the president isn’t a concern.

Justice Neil Gorsuch asks why the court should not just not defer to the House’s view of its own legislative purpose? Strawbridge, citing Sibelius, says that Congress can’t use implied powers to change the structure of government. Gorsuch clarifies his question: why is this particular subpoena not supported by a substantial legislative need? Strawbridge says that Congress has not identified with sufficient specificity why it needs the minute financial details on Trump and his grandchildren.

Finally, Justice Brett Kavanaugh asks Strawbridge to explain the specific needs standards from Nixon would play out in practice. Strawbridge says that while some subpoena for the president’s financial records might satisfy the specific needs standard, the subpoenas at issue are a “dragnet” that are more about exposing wrongdoing than enacting legislation. Kavanaugh asks Strawbridge to clarify that the third parties here intended to comply with the subpoena. Strawbridge acknowledges that they did intend to comply.

Oral Arguments for Department of Justice, Amicus Curiae in Support of Petitioner

Principal Deputy Solicitor for the Justice Department Jeffrey Wall takes the stage—or, rather, unmutes his phone. He begins his argument by noting the plain potential of the subpoenas to harass the president. Congress needs to explain what laws it’s considering and why the president’s documents are necessary for that purpose. He cites two major problems with Congress’s argument. First, Congress hasn’t developed any standards sensitive to Art. II concerns. And second, the full House of Representatives hasn’t confronted the constitutional question that the subpoenas raise.

Chief Justice Roberts asks Wall whether the Court should probe the mental processes of legislators to determine whether their intention is investigatory or legislative. Perhaps perceiving that Roberts might want to avoid a subjective test, Wall says no: the court should only review subpoenas on the basis of a contemporaneous legislative record. Doing so, he continues, will show an objective mismatch between the breadth of the subpoenas and their asserted purposes.

Thomas asks what if it was clear that from the statements reviewed, that members’ intention was to remove the president from office, rather than to legislate. Wall says that if you look at the statements, it’s clear that the subpoenas are not in aid of valid legislation. However, he insists, he is not asking to go back and probe members’ mental processes.

Defending Congress, Justice Ginsburg observes that one must traditionally investigate before one can legislate. She notes that it would therefore be inappropriate for the court to impugn Congress’s subjective motive. Courts don’t interrogate the subjective motives given by policemen who stop cars merely for passing a stop sign. Should the court distrust Congress more than mere cops? Wall concedes that Congress can investigate. But when an inquiry involves the president, he argues, there must be a higher standard of review given the dangers of harassing him. The president isn’t any ordinary litigant.

As to whether the president should be treated like an ordinary litigant, Breyer questions why the Court should not apply the standard it already applies to other people: namely, let individuals who are subpoenaed come to the judge and protest the subpoena themselves. He says that rules developed in Clinton v. Jones about the special needs of the president could help guide decision-making here. Wall responds that the Supreme Court and the D.C. Circuit have routinely rejected the analogy to grand jury subpoenas issued by the executive branch. Though he says that the Clinton analogy is helpful insofar as it suggests that some heightened standard is appropriate when the president is involved, even if the president doesn’t enjoy absolute immunity.

Justice Alito, narrowing in on the subpoena issued by the House Intelligence Committee, asks what standard Wall thinks is appropriate—potentially suggesting that this subpoena is somehow more defensible than the others. Wall doesn’t draw any lines between the subpoenas. He says that the Intelligence Committee said it was investigating foreign interference in elections, yet this subpoena asks for records dating back to 2010 and only concerns the president. Suggesting an improper purpose, Wall rhetorically asks why a subpoena investigating foreign interference would go back that far and apply to only one person. Wall likewise argues that the House Financial Services Committee subpoena doesn’t make sense.

Alito asks whether Congress has the power to regulate the president through general legislation concerning disclosure requirements and conflict of interest. Wall says that it’s unlikely Congress has that power regarding conflicts of interest, that the question is more difficult with respect to financial disclosures. If the House had explained with any specificity what it wanted to do with the Ethics in Government Act, there would be more room for debate about permissible congressional investigations. But, as of now, there’s no way to say whether any valid legislation is even possible.

Sotomayor objects to the sharp distinction between legislative and investigative subpoenas: Until Congress investigates, it doesn’t have a chance to determine what legislation might be valid. Should the court speculate about legislation not imagined yet when the subpoena issued? Returning to the House Intelligence Committee subpoena, Sotomayor suggests that a ten-year timeframe it’s not so unusual. After all, it’s c

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