USA TODAY International Edition
Supreme Court debates access to Trump’s files
Some justices wonder if subpoenas go too far
The justices on Tuesday leveled tough questions at both sides during oral arguments over the release of the president's financial records to House Democrats. The case could lead to landmark rulings on separation of powers and presidential immunity.
WASHINGTON – The Supreme Court posed tough questions to both sides Tuesday in landmark disputes pitting President Donald Trump against House Democrats and New York prosecutors over access to Trump’s personal and corporate financial records.
On one hand, the court’s liberal and some conservative justices challenged the president’s lawyers and the Justice Department to defend Trump’s refusal to comply with subpoenas seeking information from his accountant and bankers. The House wants the documents in pursuit of legislation, the prosecutors for a grand jury investigation.
On the other hand, all the conservatives and some liberal justices wondered whether the subpoenas go too far in seeking a decade of private data involving not only the president but members of his family. They suggested such extensive probing could harass and distract both Trump and future presidents.
After nearly 31⁄ hours of debate, it 2 seemed likely that the two titanic battles will not yield the unanimous verdicts against presidential immunity that befell two of Trump’s predecessors, Richard Nixon and Bill Clinton, at the hands of the high court.
The dilemma was summed up best by the newest associate justice, Brett Kavanaugh, near the end of the debate over the House subpoenas.
“How can we both protect the House’s interest in obtaining information it needs to legislate but also protect the presidency?” Kavanaugh asked House general counsel Douglas Letter.
The dramatic oral arguments, conducted by telephone amid the coronavirus pandemic and broadcast live, could result in landmark rulings on a president’s immunity from investigation while in office and Congress’ oversight powers, right in the middle of the 2020 presidential campaign.
In previous separation- of- powers battles over documents or testimony, the Supreme Court ruled unanimously against Nixon in 1974 and Clinton in 1997, with their nominees in agreement. The decisions led eventually to Nixon’s resignation and Clinton’s impeachment.
That history raises the pressure on today’s high court, which Chief Justice John Roberts has said should seek unanimity wherever possible. On Tuesday, it seemed like a tall order.
“Why should we not defer to the House’s views about its own legislative purposes?” Associate Justice Neil Gorsuch, a Trump nominee, asked the president’s lawyer.
But even liberal Associate Justice Stephen Breyer noted the subpoenas “go way, way beyond tax returns,” a concern voiced by several conservative colleagues.
“At some point, there’s a straw that breaks the camel’s back,” Associate Justice Clarence Thomas said. “At some point, it debilitates the president.”
The legal battles pit Trump against three House committees, controlled by Democrats, that have issued subpoenas for eight years of financial documents. A separate fight involves Manhattan District Attorney Cyrus Vance’s subpoena for similar documents as well as the tax returns that Trump, unlike recent predecessors, has not released.
In the New York case, Trump attorney Jay Sekulow argued that the president has absolute immunity from a criminal investigation while in office, a position that got pushback from several justices.
Sekulow said allowing the Manhattan district attorney to obtain Trump’s financial records would empower some 2,300 local district attorneys in the country, most of whom were elected, to target sitting presidents for political purposes.
Associate Justice Sonia Sotomayor seemed highly skeptical, contending that the president was “asking for a broader immunity than anyone else gets.”
“I find it odd that you want us to rule that there is essentially an absolute immunity from investigative powers, the height of a state’s subpoena – police powers,” she said.
Roberts questioned Sekulow about why the subpoena can’t move forward, saying the court had previously allowed Clinton to be sued by a former employee.
“You focus on the distraction to the president,” Roberts told Sekulow, but in Clinton’s case, the court “was not persuaded that the distraction in that case meant that discovery could not proceed.”