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 31⁄2 hours of debate, it 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.”
Carey Dunne, general counsel for the Manhattan DA’s office, rejected Sekulow’s claim that allowing the subpoena would empower an army of local prosecutors. He noted that the subject of the probe – the Trump Organization – is based in New York City.
Associate Justice Samuel Alito warned that local prosecutors routinely leak information to the press, but Dunne said he’s not aware of “any kind of real pattern or practice” of leaking grand jury materials.
Solicitor General Noel Francisco, arguing for the Justice Department, did not push for absolute immunity. Instead, he said state prosecutors, like federal prosecutors, should be required to show why the documents they’re seeking are “critical to the charging decision.”
Lawmakers in the congressional cases claim the records will help determine the need for future legislation in areas such as campaign finance law, bank loan practices, and efforts to prevent foreign influence in elections. That view won support from Associate Justice Ruth Bader Ginsburg.
“One must investigate before legislation,” Ginsburg said. “The purpose of investigation is to frame the legislation.”
Trump’s lawyer in those cases, Patrick Strawbridge, accused lawmakers of setting a “dragnet” to see if the president is guilty of tax fraud or money laundering. Without limits, he said, nothing would prevent lawmakers from seeking even Trump’s medical records or DNA.
“These subpoenas are overreaching. They are an obvious distraction,” Strawbridge said. “They are going to multiply if this court accepts the path that the House is attempting to lay.”
Three liberal justices – Ginsburg and Associate Justices Sonia Sotomayor and Elena Kagan – appeared to take the House’s side, while Thomas and Alito leaned toward the president. That left Roberts, Gorsuch, Breyer and Kavanaugh closer to the middle.
Richard Wolf covers the Supreme Court and legal issues for USA TODAY. You can follow him on Twitter @rich ardjwolf.