U.S. Supreme Court wary of presidential 'harassment' in Trump finances
fight
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[May 13, 2020]
By Lawrence Hurley and Andrew Chung
WASHINGTON (Reuters) - In a major showdown
over presidential powers, U.S. Supreme Court justices on Tuesday
appeared divided over President Donald Trump's bid to prevent
congressional Democrats from obtaining his financial records but seemed
more open toward a New York prosecutor's attempt to secure similar
records.
The court's conservative majority signaled concern about improper
"harassment" of Trump - who is seeking re-election on Nov. 3 - by three
Democratic-led House of Representatives committees seeking his records.
In the New York case, the conservative justices joined the court's
liberals in indicating skepticism toward broad arguments by Trump's
lawyer for complete immunity from criminal investigation for a sitting
president.
All the subpoenas at the heart of the court's back-to-back
teleconference arguments that lasted about three hours and 20 minutes
were issued to third parties - an accounting firm and two banks - and
not to the Republican president himself, though he sued to block them.
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There is a possibility the court will not simply allow or disallow
enforcement of the subpoenas but rather impose tighter standards for
issuing subpoenas for the personal records of a sitting president and
send the matter back to lower courts to reconsider. This course of
action could delay an ultimate decision on releasing the records until
after the election.
The court's 5-4 majority includes two justices appointed by Trump.
Conservative Chief Justice John Roberts could play a potential
tie-breaking role in shaping the rulings. Roberts asked questions
suggesting skepticism about unchecked subpoena power when applied to a
sitting president but also concern about a president evading scrutiny
altogether.
Trump, unlike other recent presidents, has declined to release his tax
returns and other financial records that could shed light on his net
worth and the activities of his family real-estate company, the Trump
Organization. The content of these records remains an enduring mystery
of his presidency.
Two of the three cases before the justices involved House subpoenas
seeking Trump's financial records from his longtime accounting firm
Mazars LLP, Deutsche Bank AG and Capital One Financial Corp. The third
involved a subpoena to Mazars for similar information, including tax
returns, in a grand jury investigation into Trump conducted by the
office of Manhattan District Attorney Cyrus Vance, a Democrat. Trump
lost all three cases in lower courts.
Conservative and liberal justices asked a lawyer for the House, Doug
Letter, to explain why the subpoenas were not simply harassment and
whether Congress should be limited in issuing subpoenas so as to not
distract a president or frustrate his official duties.
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Conservative Justice Samuel Alito said under the House's argument there
would be "nothing preventing the harassment of a president."
Liberal justices seemed more sympathetic toward the House but raised
concerns about an unfettered ability by lawmakers to subpoena a
president's personal records.
Justices disagreed with arguments by Trump's lawyers that the subpoenas
targeting him were unprecedented, instead pointing to the 1970s
investigations involving President Richard Nixon's Watergate scandal and
a 1990s sexual misconduct lawsuit against President Bill Clinton. In two
major cases, the Supreme Court was unanimous in refusing to shield those
two presidents.
Roberts pressed one of Trump's lawyers, Patrick Strawbridge, on whether
lawmakers can ever subpoena a president's financial records.
"Do you concede any power in the House to subpoena personal papers of
the president?" Roberts asked.
Strawbridge said it was "difficult to imagine" when that would be
justified.
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President Donald Trump gestures to reporters as he departs for
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House in Washington, U.S., March 5, 2020. REUTERS/Carlos Barria
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'MENTAL PROCESSES'
Roberts also questioned the value of seeking to assess the motives
of lawmakers.
"Should a court be probing the mental processes of the legislators?
Should members of House committees be subject to cross examination
on why you were really seeking these documents?" Roberts asked
Justice Department lawyer Jeffrey Wall.
Trump's lawyers argued that the House committees had no authority
and no valid legislative reason to issue the subpoenas.
"Why should we not defer to the House's views on its own legislative
purposes?" asked conservative Justice Neil Gorsuch, a Trump
appointee.
Some justices seemed skeptical of Letter's arguments that lawmakers
possess broad authority to investigate a president for the purpose
of writing laws.
"Your test is not much of a test. It's not a limitation," Roberts
told Letter, adding that the House must recognize it was dealing
with a co-equal branch of government.
The House committees have said they are seeking the material for
investigations into potential money laundering by banks and into
whether Trump inflated and deflated certain assets on financial
statements - as his former personal lawyer has said - in part to
reduce his real estate taxes.
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Liberal Justice Stephen Breyer asked whether Congress, under the
hands-offs approach advocated by Trump's lawyers, would have been
able to properly investigate the Watergate scandal that drove Nixon
to resign. Congressional investigators probing Watergate were,
Breyer said, given "a pretty blank check."
Liberal Justice Elena Kagan said where personal records are
concerned "the president is just a man."
"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," Kagan told Strawbridge.
In the New York case, Kagan told Trump lawyer Jay Sekulow it is a
"fundamental precept of our constitutional order that the president
is not above the law."
Justices seemed receptive to the position taken by the Justice
Department, which supports Trump but did not argue for blanket
immunity.
Gorsuch questioned why the Supreme Court would give Trump immunity
in a criminal investigation when it did not give Clinton immunity in
the 1997 ruling concerning the sexual misconduct litigation.
"How is this more burdensome than what took place in Clinton v.
Jones?" Gorsuch asked, using the name of the case. "I guess I'm not
sure I understand that."
Sekulow responded that criminal cases can result in a loss of
liberty while civil lawsuits can lead only to monetary damages.
Rulings are likely within weeks. The teleconference format was
adopted during the coronavirus pandemic.
(Reporting by Lawrence Hurley and Jan Wolfe in Washington and Andrew
Chung in New York; Editing by Will Dunham)
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