Attorneys for President Donald Trump faced questions from the justices of the Supreme Court on Tuesday over whether allowing Trump to keep his tax records shielded from House Democrats would unconstitutionally limit the power of Congress to conduct investigations related to potential legislation.
Chief Justice John Roberts, who was appointed by President George W. Bush, and Justice Neil Gorsuch, Trump’s first appointee to the top court, joined the court’s four Democratically appointed justices in pressing Trump’s personal attorney Patrick Strawbridge and a Justice Department lawyer about their arguments for allowing Trump to keep the documents from investigators.
The cases involve subpoenas for Trump’s financial records issued by Democratic-led congressional committees to the president’s accounting firm, Mazars USA, and banks, Deutsche Bank and Capital One. Arguments are being conducted over the phone and streamed live to the public as a result of health precautions taken to halt the spread of coronavirus.
The committees have said they are pursuing investigations into potential money laundering, foreign interference in U.S. politics and whether Trump has properly disclosed his assets. Lower courts in Washington and New York have upheld the subpoenas. Attorneys for Trump have asked the Supreme Court to reject those rulings on the basis that House Democrats lack a legitimate reason for investigating him.
“The committees have not even tried to show any critical legislative need for the documents these subpoenas seek,” Strawbridge told the justices in his opening statement.
But Gorsuch and Roberts pressed Strawbridge, as well as DOJ attorney Jeffrey Wall, on why the court should not defer to Congress on whether it has a valid reason for its subpoenas.
“Why should we not defer to the House’s views about its own legislative purposes?” Gorsuch pointedly asked Strawbridge at one point. “Why is this subpoena not supported by a substantial legislative need?”
Roberts skeptically asked Wall whether the court should “be probing the mental processes of the legislators.”
“Should members of House committees be subject to cross examination on why you were really seeking the documents?” Roberts asked.
Douglas Letter, an attorney for the House of Representatives, also faced skeptical questions from some of the justices over whether a loss for Trump could enable a flood of partisan investigations that could burden the presidency.
“How can we both protect the House’s interest in obtaining information it needs to legislate, but also protect the presidency?” Justice Brett Kavanaugh, Trump’s second appointee, asked at one point.
Letter emphasized that the subpoenas were not directed at the president, but instead to third parties.
“There’s no way that these can interfere with the president, because he doesn’t have to do anything” to respond to them, Letter said.
The court’s four liberals, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan suggested with their questioning they were skeptical of the president’s position.
Justice Samuel Alito, a George W. Bush appointee, suggested that he was more sympathetic to it. Justice Clarence Thomas, who was appointed by George H.W. Bush, asked technical questions that shed little light on his thinking.
“We’re wandering around in the wilderness trying to determine what standard to use,” Thomas said at one point.
Questions at oral argument are not always predictive of how justices ultimately vote.
In its second argument of the day, the Supreme Court will hear a case involving subpoenas issued by Manhattan District Attorney Cy Vance, Jr., to the Trump Organization and Mazars.
Vance is investigating potential violations of state law related to hush money payments made to two women who have alleged affairs with the president. A federal appeals court in New York upheld the subpoenas, but Trump’s attorneys have argued that he is immune from criminal investigation while in office.
Decisions are expected over the summer, in the midst of the bruising election battle between Trump and apparent Democratic nominee, former Vice President Joe Biden. Trump is the first major party candidate not to release his tax returns in four decades.
The consolidated congressional cases are Trump v. Mazars, No. 19-715 and Trump v. Deutsche Bank, No. 19-760. The New York case is Trump v. Vance, No. 19-635.
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