The US Supreme Court is seen in Washington, DC, on May 4, 2020, during the first day of oral arguments held by telephone, a first in the Court’s history, as a result of COVID-19, known as coronavirus.
Saul Loeb | AFP | Getty Images
A landmark clash over presidential power and the rule of law is coming to a streaming device near you.
Attorneys for President Donald Trump will finally face off against Democrats in the House of Representatives and Manhattan District Attorney Cy Vance, Jr., before the nation’s highest court on Tuesday in a set of cases that raise questions at the heart of America’s system of justice.
The cases, over whether Trump can keep his tax records secret, mimic battles waged and lost by Presidents Bill Clinton and Richard Nixon.
This time, there’s a twist: The fight comes in the middle of a global pandemic. As a result of the spreading coronavirus, the court has closed its building to the public. Arguments, conducted over the phone, will be streamed live.
Here’s what you need to know before you tune in.
How can you listen?
The arguments will begin promptly at 10 a.m. ET on Tuesday and will be available for streaming on CNBC.com and the CNBC app. They will last at least two hours.
The day will be divided into two argument sessions, each lasting about an hour.
The first argument involves two cases in which Democratic-led congressional committees issued subpoenas seeking the president’s financial records from his banks and accounting firm. The second argument relates to similar subpoenas issued by the Manhattan district attorney, who is a Democrat, to the president’s business and accounting firm.
What are the cases about?
The basic question underlying both arguments is “whether governmental agencies can investigate potential wrongdoing by a sitting president,” according to Sarah Harrington, one of the most experienced Supreme Court lawyers in the country and a partner at the law firm Goldstein & Russell.
David Cole, the national legal director of the American Civil Liberties Union, said that what is at stake in the cases are “two of the most fundamental principles of the American constitutional system. Checks and balances on the one hand, and the rule of law and the notion that no one is above the law on the other.”
First argument: A clash with Congress
The two congressional cases involve investigations being carried out by Democratic-led committees in the House of Representatives into the president’s personal financial dealings.
In one case, the House Oversight Committee is looking into claims made by the president’s former fixer and lawyer Michael Cohen, who testified before the committee last year that Trump inflated and deflated his assets “when it served his purposes.”
The committee is also investigating why Trump didn’t include on his 2017 financial disclosure form a $130,000 hush money payment he owed to the adult film star Stormy Daniels. Cohen facilitated the payment in the run up to the 2016 election, and the Office of Government Ethics has said that Trump should have listed the debt as a liability.
As part of its investigation, the committee issued a subpoena in April 2019 to the president’s longtime accounting firm, Mazars USA, seeking all “statements of financial condition, annual statements, periodic financial reports, and independent auditors’ reports prepared, compiled, reviewed, or audited” by the company related to Trump and his businesses.
The second case from Congress involves subpoenas issued by the the intelligence and financial services committees to the president’s primary lenders, Capital One and Deutsche Bank, for financial records related to Trump and his family members.
The leaders of those committees have said that they are looking into “questionable financing” that Trump and his businesses received before he became president. House Intelligence Committee Chairman Adam Schiff has said the investigation entails uncovering whether “any foreign actor has sought to compromise or holds leverage, financial or otherwise, over Donald Trump, his family, his business, or his associates.”
Second argument: Can Trump be investigated?
The second argument the justices will hear on Tuesday involves subpoenas sent to the Trump Organization and Mazars by Vance, the Manhattan district attorney.
Like the House Oversight Committee, Vance is also pursuing an investigation into the hush money payments Trump made to two women ahead of the 2016 election.
In August 2019, his office asked the Trump Organization for documents related to the hush money payments produced between 2015 and 2018. Later that month, Vance asked Mazars for a wide variety of Trump’s personal and business records, including tax returns, dating back to 2011.
Vance has said he is investigating whether there was a violation of New York state law — though he hasn’t said whether Trump himself is a suspect, or indicated any potential charges.
What will the Supreme Court do?
So far, every court that has heard these cases has sided against the president. But that does not mean the Supreme Court will do so.
One element at play is politics. The nine-member Supreme Court has five justices who were appointed by Republicans and four who were appointed by Democrats. Two of the justices, Neil Gorsuch and Brett Kavanaugh, were appointed by Trump.
While the justices often present their work as above the fray, the Supreme Court is a political institution.
The court has often sided with Republicans in cases that divided along partisan lines, including in cases over Trump’s travel ban and a recent dispute over absentee ballots in Wisconsin. It has also ruled against the administration, including in a blockbuster last term over the addition of a citizenship question on the 2020 census.
“We are in such a politically polarized time, and so the question is: Will the court overcome this?” asked Erwin Chemerinsky, a leading scholar of constitutional law and the dean of Berkeley Law.
‘This is a case of firsts’
Another element is precedent, or the Supreme Court’s prior rulings. Two unanimous decisions stand out.
In 1974, the Supreme Court ruled that President Richard Nixon could not withhold Oval Office tapes related to conversations he had about the Watergate scandal.
Two decades later, the Supreme Court ruled, again unanimously, that President Bill Clinton was not immune from civil litigation after he was sued by a woman who alleged Clinton harassed her while he was governor of Arkansas.
In the face of those losses, Trump’s attorneys have attempted to present these cases as raising entirely new questions.
“This is a case of firsts,” wrote William Consovoy, one of the president’s attorneys, in a brief asking the court to take up one of the congressional cases. He wrote the case was the “first time a court has upheld any congressional subpoena for any sitting President’s records of any kind.”
Jay Sekulow, another Trump attorney, acknowledged in a brief asking the court to take up the Vance dispute that the Supreme Court had opened up the president to judicial proceedings in the Clinton case. But, Sekulow said, it had “never decided whether subjecting the President to judicial process is appropriate in this kind of case.”
What clues should you look out for?
It is never possible to know for certain how justices may vote based on their questions at oral argument, and the new virtual format the court has taken to in response to Covid-19 has made speculating somewhat trickier.
Harrington noted that a general rule of thumb is that justices tend to ask more questions of the side they are less likely to vote for. So far, though, justices have been asking about the same number of questions to each side in arguments conducted by phone, she said.
One clue came last month, when the justices asked attorneys to provide more arguments about something called the “political question doctrine.”
The doctrine refers to the practice in which courts sometimes decline to rule on heated political issues. If the court says it cannot rule in the congressional cases, that could effectively be a loss for Trump, who is asking the justices to prevent the subpoenas for his records from going into effect.
“I could see, for example, somebody like [Chief Justice John] Roberts, maybe not wanting to rule directly against Trump but saying I do not want to get involved,” said Elliot Mincberg, a former chief counsel for oversight and investigations for the House Judiciary Committee.
Experts say there are other lines of inquiry they will be watching closely.
“I think the key questions to Congress will be: What is the valid legislative purpose for seeking these records?” said Hans von Spakovsky, a senior legal fellow at the Heritage Foundation’s Center for Legal and Judicial Studies.
If the justices seem skeptical of the congressional committees’ reasoning for the subpoenas, that could doom their case.
On the other hand, Chemerinsky said that if the justices focus on the fact that the activity being investigated predates Trump’s time in office, “I think that it would be a bad sign for the president.”
Cole, of the ACLU, said that he will be listening for whether the justices seem to be looking for common ground.
“Are the justices simply lining up on partisan sides, or are they searching for principles that would allow them to rise above partisan division?” he said.