The Supreme Court on Tuesday appeared divided over President Trump’s assertion that the broad powers he enjoys as the nation’s chief executive override subpoenas for his financial records and tax returns.
Trump’s standoff with a trio of Democratic-led House committees and Manhattan prosecutors over his financial paper trail saw the justices raise divergent concerns about presidential immunity, congressional oversight and the power of prosecutors to gather evidence linked to a sitting president.
The first argument in Tuesday’s pair of overlapping cases concerned a slate of congressional subpoenas issued to Trump’s accountants and banks.
The court’s more conservative justices tended to focus on the risk of granting Congress overly broad powers, including the potential for presidential harassment, while liberal justices aired concerns about placing unduly restrictive limits on lawmakers.
One area of apparent common ground, though, was the view that the cases, which asked the justices to draw lines between governmental powers, had handed them a difficult constitutional task.
“You say there is some power in the House and you think there’s a high standard,” Chief Justice John Roberts said to Trump’s private attorney Patrick Strawbridge. “I understand the House to concede there is some limit to its authority.”
“So it sounds like at the end of the day this is just another case where the courts are balancing the competing interests on either side,” Roberts said.
The justices’ seeming lack of consensus over some of the dispute’s core constitutional questions suggests they may not achieve the unanimity that marked prior Supreme Court decisions on executive privileges and immunities that handed defeats to Presidents Nixon and Clinton.
The dispute’s political and constitutional implications are enormous and could see the court alter the balance of power between government branches, or determine whether Trump can be implicated in a New York state criminal probe.
With rulings expected to arrive just months before Election Day, a closely divided decision — particularly one that falls along ideological lines, which Roberts is likely striving to avoid — could make control over future court vacancies an even more salient issue at the 2020 ballot box.
In Tuesday’s first case, a lawyer for the House committees behind the subpoenas — Oversight and Reform, Financial Services, and Intelligence — argued that Trump’s personal and corporate records are needed to assess the adequacy of current ethics and disclosure laws and to probe possible financial misconduct.
Trump’s personal attorney countered that the pursuit lacked a legitimate legislative purpose.
“The president’s personal papers are not related to anything having to do with the workings of government,” said Strawbridge. “And to empower the committees to simply declare him a useful case study is to open the door to all sorts of oppressive requests.”
“You could have subpoenas directed seeking all of [former President] Jimmy Carter’s financial history simply because he used to be a peanut farmer and they want a case study on agriculture,” he added.
Justice Samuel Alito, one of the court’s more conservative justices, raised concerns to House lawyer Douglas Letter that enforcing the congressional subpoenas would leave presidents vulnerable to harassment by political rivals.
“The end result is that there is no protection whatsoever [if] the only requirement is that the subpoena be relevant to a conceivable legislative purpose,” Alito said.
Trump has also argued that enforcing the subpoenas would encroach on the executive branch’s exclusive power to enforce the nation’s laws, in violation of the Constitution’s separation of powers.
But Justice Elena Kagan, a member of the court’s liberal bloc, emphasized to Trump’s lawyer that a ruling in the president’s favor could hamper Congress’s ability to perform its duties.
“What it seems to me you’re asking us to do is to put a kind of 10 ton weight on the scales between the president and Congress and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the president is concerned,” Kagan said.
Some of the liberal justices noted that Trump’s refusal to disclose his tax returns had intensified the battle.
“In so many of these prior cases, there was a cooperation, for example tax returns,” said Justice Ruth Bader Ginsburg. “Every president voluntarily turned over his tax returns. So it gets to be a pitched battle here because President Trump is the first one to refuse to do that.”
Trump’s tax returns and financial records have been closely watched since his 2016 presidential campaign. He is the first president in decades to refuse to make any of his tax returns public, noting that he is under audit. The IRS has said audits do not prevent Trump from voluntarily disclosing his returns.
The court’s second argument of the day, a criminal case from New York, could determine whether Trump’s tax returns are ultimately made public.
That case, Trump v. Vance, concerns access to eight years of Trump’s personal and corporate tax returns. Cyrus Vance Jr., the Democratic district attorney for Manhattan, previously obtained a grand jury subpoena against Trump’s accounting firm, Mazars USA.
Vance’s office is looking into payments made to silence two women who allege they had affairs with Trump, including adult-film star Stormy Daniels, before he became president. Trump’s former lawyer and fixer Michael Cohen is serving a prison term in part for his role in the payoff scheme, which violated campaign finance laws and which Cohen said he conducted at the direction of Trump to influence the 2016 presidential election.
Trump has denied any wrongdoing.
Trump’s private attorneys filed multiple lawsuits to prevent Mazars and two additional third-party financial institutions — Deutsche Bank and Capital One — from disclosing Trump’s financial records.
In both of the cases argued Tuesday, Trump lost every round of the battle in the lower courts.
Much of the day’s second case concerned the extent to which Trump’s assertion of blanket immunity from any criminal process was compatible with prior Supreme Court decisions.
Legal experts say prior Supreme Court decisions concerning a president’s privileges and immunities fall well short of the kind of blanket protection Trump is seeking and that the court has traditionally embraced a case-by-case approach in similar cases rather than a categorical exemption.
In a 1974 ruling against Nixon’s right to shield secret Watergate tapes, a unanimous court held that while presidents can conceal some confidential information under executive privilege, they cannot withhold key evidence from a criminal investigation.
In another unanimous ruling in 1997, the court decided in Clinton v. Jones that presidents are not immune from civil lawsuits for conduct that occurred before entering the White House, allowing a sexual harassment case to proceed against Clinton while in office.
But Trump’s personal attorney Jay Sekulow told the justices that providing Trump temporary immunity in this case was constitutionally required. He also warned that a ruling in favor of the Manhattan district attorney would open the floodgates and invite similar litigation targeting the president.
“The decision would allow any DA to harass, distract and interfere with the sitting president,” said Sekulow, who also represented Trump earlier this year at his Senate impeachment trial and who told the justices that the president “is himself a branch of government.”
Several justices, representing both sides of the court’s ideological spectrum, seemed skeptical of Trump’s sweeping assertion of immunity.
Justice Neil Gorsuch, one of Trump’s two appointees, pressed Sekulow to explain why the court should quash subpoenas issued to Trump’s third-party financial firms when it allowed the case against Clinton to proceed.
“How is this more burdensome, though, than what took place in Clinton versus Jones? I guess I’m not sure I understand that,” he said, adding: “There, they sought the deposition of the president while he was serving. Here, they’re seeking records from third parties.”
Some justices appeared more inclined to adhere to a case-by-case approach. The Justice Department argued for that approach, though it advocated for a version that applied a heightened standard that takes into account the unique circumstances of the American presidency.
Kagan pressed Trump’s attorney to explain why an absolute exemption made more sense than for the court to steer a middle course.
“You made the point, which we have made, that presidents can’t be treated just like an ordinary citizen,” Kagan said. “But it’s also true, and indeed a fundamental precept of our constitutional order, that the president isn’t above the law.”
Updated at 4:40 p.m.