In a marathon session held over teleconference, the Supreme Court today heard the three most important cases about the power of Donald Trump, and the office of the presidency in general.
And unlike some recent cases, it’s unclear what the Court will decide in a decision that has enormous political implications for Trump, and the country .
At issue are subpoenas from Congress and prosecutors calling on banks and accountants to turn over Trump’s financial records: his tax returns, which he has still not released four years after promising to do so; bank records detailing his relationships with overseas lenders, and corporate records regarding Trump’s hush-money payments to Stormy Daniels.
Obviously, if these documents were to become public, the political impact would be gigantic. It’s widely suspected that Trump has not paid federal taxes in years, has declared massive financial losses while boasting of his wealth, and has taken out a host of loans with German, Russian, and other financial institutions that raise, at the very least, conflicts of interest concerns.
But in the words of Justice Ruth Bader Ginsberg this morning, “the sauce that’s good for the goose is also good for the gander.”
What’s to stop future congressional investigations (at issue in two of the cases) or state criminal proceedings (at issue in the third) from demanding all sorts of private information in order to politically damage a sitting president?
At oral argument, each side characterized the other as taking extreme positions that would have a host of negative consequences.
Trump’s lawyers–both his own personal attorneys, and the Department of Justice–argued that Congress’ and the Manhattan District Attorney’s requests were both unprecedented and would be a “blank check” to harass presidents and other officials. “This will harm the presidency, moving forward,” said Patrick Strawbridge, one of Trump’s personal attorneys.
Another of Trump’s attorneys, Jay Sekulow (who memorably defended Trump at his Senate impeachment trial), went even further, arguing that a sitting president is immune from all criminal prosecution and investigation, and that Congress’s investigative powers are limited to impeachment proceedings.
That, lawyers for Congress, the District Attorney, and numerous amicus briefs argued, is itself an unprecedented power grab, yet another example of Trump creating an “imperial presidency” that operates above the law.
There were other “ganders” in the virtual courtroom as well: former presidents Nixon and Clinton.
In 1974, the Supreme Court unanimously ordered President Richard Nixon to comply with a congressional subpoena and turn over his personal tape recordings of White House conversations. And in 1997, the Court unanimously held that President Bill Clinton did not have immunity to civil litigation–in particular, a lawsuit from Paula Jones alleging sexual harassment.
Both of those cases had grievous consequences for the president who lost them. Nixon resigned amid the Watergate affair; and Clinton was impeached for lying under oath in the Jones case.
At oral argument today, however, it seemed unlikely that the Supreme Court will issue another unanimous opinion. Quite the contrary.
At one extreme, Justice Clarence Thomas–who spoke more in today’s telephonic oral arguments than in the last several years of in-person ones–expressed doubt that Congress has any authority at all to subpoena private documents. There is no such power, Thomas suggested, “which is why we’re wandering around in the wilderness trying to determine what standards we are to use.”
Indeed, the investigative power is not specified in the Constitution, but two centuries of Court precedent have understood it to be an “implied power” that’s part of Congress’ legislative responsibilities. If Congress can’t investigate, it can’t legislate.
On the other side, Justice Stephen Breyer asked how the two congressional subpoenas are any different from those in the Watergate scandal. Justice Sonia Sotomayor noted that other public officials may be sued for private actions, so why not the president? Sekulow’s answer was simply, “Well, he is the president of the United States.”
That is the sort of “imperial presidency” rhetoric that worries the bipartisan array of experts who filed those amicus briefs.
And while Trump’s lawyers repeatedly said that Congress lacked any legitimate reason to obtain the records, in fact the House’s Oversight and Intelligence Committees provided considerable justification for doing so: passing a law requiring candidates to disclose tax returns, for example, or strengthening the Ethics in Government Act, or combating foreign interference in U.S. elections.
In between these positions, Chief Justice John Roberts, and Justices Neil Gorsuch, Samuel Alito, and Brett Kavanaugh wrestled with the standards for allowing Congress and prosecutors to conduct such investigations.
Roberts, for example, noted that one such standard was that an investigation must “concern a subject on which legislation could be passed.” Was there anything in the world that wouldn’t pass that standard? After the House’s lawyer failed to answer, Roberts concluded, “Your test is not much of a test.”
As in many Supreme Court cases, the difficulty in establishing such a standard may, in fact, sink the entire ship. Indeed, at least half of the three hours that the arguments took up was spent on these kinds of questions. What standard does Congress need to meet before issuing such a subpoena? What about the scope of these requests (which include not just Trump’s but his whole family’s financial records)? Are state and federal investigations different, and why? Are criminal and civil cases different, and why?
But these distinctions will decide this case.
If Trump is treated like Nixon and Clinton, then he will lose. But if it matters that the New York investigation is part of a state criminal case, rather than a federal civil one; and that the congressional subpoenas are overly broad; he just might win. (So far, Trump has lost in every lower court, in all three cases.)
Which will it be? Roberts, who likely will prove the deciding vote in this case, has ruled against Trump’s assertions of power, e.g., striking down the citizenship question on the census, and at times in favor of it, e.g., upholding the "Travel Ban."
Roberts was clearly dissatisfied with the standards that most of the lawyers proposed. If he can articulate a better one, that allows congressional oversight and criminal accountability,without throwing open the floodgates to endless political intrusions on personal privacy, he would strengthen both the rule of law and the legitimacy of the Supreme Court, which seem to be his paramount concerns.
But it’s not clear that such a standard exists. And it’s no exaggeration to say that both Trump’s political future and the Constitution’s balance of powers are at stake.