The Supreme Court heard arguments in two cases Tuesday about whether President Donald Trump can block subpoenas for his financial and accounting records. The decisions could have enormous consequences for the November election.
The two disputes involve subpoenas from House Democrats and Manhattan district attorney Cy Vance. The Court’s conservative majority was suspicious of the House subpoena. Chief Justice John Roberts appeared to hold the deciding vote in the House case and seemed dubious of arguments from both sides. The justices seemed less troubled by the Vance subpoena but pressed attorneys about what threshold the DA should clear to obtain Trump’s records.
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A split outcome may be in the offing, with the president prevailing over House Democrats but losing in the Vance dispute.
The decisions in Tuesday’s cases will have far-reaching political implications, potentially exposing huge swaths of Trump's financial information that the president has thus far shielded from public view. Their disclosure in the months preceding the November election could produce a steady clip of unwelcome disclosures and news reports.
Both cases ask the Court to settle a power struggle between the president and outside investigators pressing for information, and victories for Trump would effectively insulate the personal lives of future presidents from state and congressional investigations.
In a key exchange, Roberts expressed concern that House Democrats are claiming a "limitless" power to access Trump’s private materials. Douglas Letter, a lawyer who represented House Democrats, said Congress can issue subpoenas for any records "pertinent" to legislation it might pass.
"Your test is really not much of a test. It's not a limitation," Roberts told Letter. "And it doesn't seem in any way to take account of the fact that we're talking about a coordinate branch of government."
Trump's outside lawyers say the historical precedent for congressional subpoenas of the president's personal records are thin to non-existent. Assuming Congress can issue such subpoenas, Trump's lawyers say the House must at least show a "demonstrated need" related to legislation it's considering. Justice Elena Kagan thought that was far too demanding.
"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," Kagan told Trump's outside lawyer, Patrick Strawbridge.
Yet Kagan, perhaps with an eye toward compromise, asked Letter why some of the House subpoenas took "a much broader scope" than others. She suggested there may be a "heightened need" for Democrats to explain why they need Trump's financial records.
The Department of Justice, which is supporting Trump in both of Tuesday's cases, also says Democrats have much to prove before getting at the president’s financial records. In a legal filing supporting Trump, the Department said the House's subpoena must be "demonstrably critical" to laws under consideration.
"It's not much to ask that before the House delves into the president's personal life, it explain in some meaningful way what laws it is considering and why it needs the president's documents in particular," deputy solicitor general Jeff Wall told the justices.
The Vance case prompted much less disagreement on the Court. Several justices focused specifically on what prosecutors would have to show to access a president's personal records, and what possible burdens on President Trump they should account for.
"I assume that the prosecutor would have to reveal what was being investigated and why this particular information was needed for or essential for the investigation," said Justice Samuel Alito.
No member of the Court seemed to accept Trump's argument that a sitting president is "absolutely immune" from state criminal inquiries.
Trump lawyer Jay Sekulow warned a decision upholding the Vance subpoena would subject an incumbent president to the whims of every local prosecutor in the country.
"An overwhelming number of them are elected to office and are thereby accountable to their local constituencies," Sekulow said. "The decision would allow any DA to harass, distract, and interfere with the sitting president."
A victory for Vance is not necessarily a political threat to Trump, at least in the short term. Any private Trump records Vance obtains are covered by grand jury secrecy rules, meaning it's unlikely they would be made public before the November election.
The cases track two historic Supreme Court cases involving presidents plagued by scandal. The Court rejected former president Bill Clinton’s claim of immunity to lawsuits relating to pre-presidential conduct during his time in office in 1997, setting off a chain of events that culminated in Clinton’s impeachment. Two decades earlier, the Court unanimously directed President Richard Nixon to comply with a special prosecutor’s subpoena for his infamous Watergate tapes, rejecting a claim that the president is immune from judicial process. Nixon resigned within three weeks.
Strawbridge acknowledged the historical stakes early in his presentation.
"The rule that the Court applies here will affect not only this president but the presidency itself," he said.
Democrats' suspicions about Trump’s alleged ties to Russian interests and hush-money payments lurk behind both cases. In the first, House investigators are demanding financial information about the president’s business entities and Trump family finances. House Democrats mean to use the Trumps as a "case study" to learn about money laundering and suspect lending practices. Vance, the Manhattan district attorney, is similarly seeking Trump’s financial information in connection with a grand jury investigation into alleged hush-money payments to women who may have had affairs with the president.
If enforced, the subpoenas would allow Trump’s political adversaries and the grand jury to reconstruct his personal and professional financial history going back a decade.
The subpoenas were directed to three financial institutions, not Trump himself. The president sued the financial institutions to stop them from complying with Congress and the Vance probe. The president has refused to cooperate with investigations of his affairs or his administration, directing associates to fight all requests for documents and testimony.
The cases, No. 19-715 Trump v. Mazars and No. 19-635 Trump v. Vance, will likely be decided by summer.
Update 3:34 p.m., 4:09 p.m.: This post was updated with further information.