Trump’s lawyer said the president could not be investigated while in office.
“We ask for temporary presidential immunity,” Trump’s lawyer, Jay Sekulow, told the court, defending a subpoena from New York for the President’s tax records.
Conservative judges focused on the question of whether Democratic efforts to obtain Trump’s record were the same as harassment or overburden the President. Unlimited power can cause a wave of subpoenas, they say.
“One can be managed. But 100 can be impossible,” Judge Clarence Thomas told Douglas’ General Council of Advisory Councils, explaining how both the Congress and the jury can summon all presidential documents at the same time.
Judge Samuel Alito also scorched the Letter with questions about whether a subpoenas abused Trump.
“That’s the problem here: Does something have to be done” to “prevent harassment of the President,” Alito said.
Chief Judge John Roberts also asked about a congressional subpoena that might harass the President. “How do you measure harassment in such a case?”
Meanwhile, liberal judges pounced on a lawyer for Trump, stating that the court had long strengthened Congress’ power to investigate.
Judge Ruth Bader Ginsburg recorded an earlier investigation of Watergate, Whitewater and Paula Jones.
“How do you distinguish between those cases,” he asked, adding that before Congress could make laws, it had to investigate.
Justice Elena Kagan firmly noted that “this is not the first conflict between Congress and the President,” he said. In previous conflicts, the White House and Congress were able to reach an agreement. “That certainly didn’t happen here,” he told Trump’s lawyer, Straw Strawbridge.
“What you are asking us to do is give a weight of 10 tons to the scales between the President and Congress and basically make it impossible to conduct surveillance and to carry out its functions in places related to the President,” Kagan said. .
Roberts has begun by seeing whether the House has the power to call personal records. “Sounds like, in the end, this is just another case where the court is balancing competing interests on both sides, is that the wrong way to look at it?”
These cases come in the middle of the term blockbuster in which judges have decided cases on DACA, LGBT rights and abortion. The court also considered the Department of Justice’s emergency request as to whether the Parliament could have access to the grand jury material from Mueller’s investigation and reduced some of Mueller’s reports.
The argument was scheduled to be heard at the end of March but was delayed due to a pandemic.
While Tuesday’s cases both involved the President’s financial documents, they triggered separate legal questions.
House Democrats call from accountants
The first two cases, debating simultaneously, pitted the President’s personal lawyer against Democrat House who said they needed records from Trump’s old accountant’s office and two banks to investigate issues ranging from alleged silent money payments, illegal foreign involvement in US campaigns and potential violations of money laundering and ethical rules.
Trump’s lawyers demanded to block the subpoena on the grounds that although they were directed to third parties – Mazars USA, Deutsche Bank and Capital One – they engaged the President and his family members and carried out illegal fishing expeditions. Democrats said they needed the documents despite the fact that the president’s impeachment trial earlier this year ended in release.
The letter, a lawyer for the House of Representatives, argued in court papers that “there was nothing unprecedented” about a congressional subpoena for documents and that the Supreme Court precedent had “long recognized” that Congress could investigate potential errors as long as it was related to a valid legislative purpose.
The letter points to the Financial Services Committee’s inquiry into the use of banks in the United States to conduct international money laundering and unsecured lending practices. The Intelligence Committee looks at the targeted risks posed by foreign interference in the US political process and seeks records to investigate whether foreign actors have financial influence over Trump. And he said the Oversight Committee was seeking presidential financial disclosures and conflicts of interest.
“Not only legislation can be obtained on these matters, but the committee has introduced or reported several bills relating to their investigations and has carried out significant oversight of related agencies,” Letter objected.
Strawbridge told the judges in the submission that the subpoena was part of an effort launched by House Speaker Nancy Pelosi after Democrats took over the House of Representatives to “investigate all aspects of the President’s public and private life.”
“Calling this unprecedented subpoena would be an understatement,” Strawbridge said, adding that it represented “the first time Congress summoned a sitting presidential personal order.”
“All of these subpoenas are expansive, burdensome and unfocused fishing expeditions,” he said.
The Department of Justice sided with Trump, arguing that the subpoena represented “a serious risk of harassing the President and distracting him from his constitutional duties.”
Deputy Chief Lawyer General Jeffrey Wall told the judges that when the legislative court summons seeks information from the President, he must meet higher standards. Both chambers of the House must approve the subpoena in question and the information sought must be “proven critical” for “legitimate legislative purposes.”
“Because the committee here did not make the show, the subpoena violated the Constitution,” he argued.
The Department of Justice suggested an off-ramp for the judges, saying they could avoid having to rule the Congress’ investigative powers with respect to the President, by simply canceling the subpoenas on the doorstep that they were not permitted by the full Council. “The full DPR vote ensures adequate consideration and is part of the checks and balances system,” Francisco said.
A brief report submitted by a former senior Justice Department official argues that Congress’s power is “not absolute” and that the President can ask for executive rights if he wants to. They also highlight precedents. During President Bill Clinton’s administration, the Senate heard testimony in investigations relating to Whitewater from the Clinton family’s personal accountant. In 1980, a Senate committee was investigating whether President Jimmy Carter played a role in his brother Billy Carter’s contact with business ventures in Libya. The committee investigates the President’s real estate ownership and obtains Bill Carter’s tax and banking records.
New York is looking for Trump’s tax return
New York District attorney, Cyrus Vance, served a subpoena at Trump’s old accountant’s office, Mazars USA, for his tax return as part of an investigation into the payment of secret money to two women who the President allegedly had extramarital relations based on testimony from Michael Cohen. (Trump has denied having an affair.)
Trump’s personal lawyer and the Department of Justice want the judges to reverse the lower court stating that the subpoena can go forward.
“We have no chance to decide today the exact contours and limitations of the president’s immunity from prosecution,” Judge Robert A. Katzmann wrote for the 2nd US Circuit Court of Appeals. “We conclude only that presidential immunity does not preclude the enforcement of a state grand jury subpoena” directed at Trump’s accounting firm.
But Katzmann made sure to note that “the past six Presidents, who came from President Carter, all voluntarily returned their tax returns to the public.” The court relied on previous cases including the 1974 United States case v. Nixon, where the Supreme Court upheld a subpoena directed at President Richard Nixon to produce certain recordings that were at the center of Watergate’s investigation.
“The president has not persuasively explained why, if executive privileges do not hinder the enforcement of subpoenas issued at Nixon, Mazars’ subpoenas must be ordered despite not seeking special information and not related to the President’s performance of his official functions,” Katzmann wrote.
Sekulow argued in a legal explanation that Trump was entitled to “provisional presidential immunity” while serving in part because he had “unparalleled responsibility to defend the country, manage foreign and domestic affairs, and implement federal law.” He claimed prosecutors “each and every” should not be able to target the President, especially in relation to the state criminal process.
Sekulow warned that “the floodgates would open” if countries could commit criminal acts against the President.
The Department of Justice supports Trump here, but does not adopt his broad view of presidential immunity. Instead, Attorney General Noel Francisco focused on the fact that the district attorney could not disturb the President and divert his time and energy. Francisco argued that a prosecutor must show that the evidence was “directly relevant” to matters that were expected to be central to the trial and that the prosecutor should identify “specific filling decisions that cannot be made responsibly without access to material.”
Carey R. Dunne, general counsel for the New York County District Attorney’s Office, argues that Trump’s and the Justice Department’s arguments should fail because the president does not have any type of categorical immunity especially when a subpoena targets third parties for documents that are not subject to executive privileges that are not has something to do with the official duty of the president.
“This Court precedent explains that Article II of the President’s immunity only applies to official action,” Dunne told the judge.
Decisions in the case must come down at the beginning of the summer.
This story broke and will be updated.