U.S. Supreme Court justices on Tuesday appeared divided as they weighed President Donald Trump’s bid to prevent Democratic-led congressional panels from getting his financial records, with the court’s conservative majority seeming focused on potential harassment of the president by lawmakers.
In a major showdown over presidential powers, justices asked tough questions of an attorney for Trump and a Justice Department lawyer who both sought to justify a refusal to comply with subpoenas by three House of Representatives committees for the financial records. But the justices also pressed a lawyer for the House to explain why the subpoenas were not simply harassment of the Republican president.
Three months after Trump avoided removal from office in a Senate impeachment trial, Trump’s lawyers want the Supreme Court to endorse their expansive view of presidential powers that would severely limit the ability of Congress to carry out oversight of presidents and of prosecutors to investigate them.
The nine justices heard an oral argument lasting more than 90 minutes by teleconference over attempts by congressional committees to obtain the records in a pair of cases that test the authority of Congress to conduct oversight of the president.
Trump has sought to block enforcement of subpoenas by the committees seeking his financial records from Mazars LLP, his longtime accounting firm, and two banks, Deutsche Bank and Capital One.
The justices asked the House’s lawyer whether Congress should be limited in issuing subpoenas so as to not distract a president or frustrate the carrying out of his official duties.
They justices then opened an oral argument in a third case that involved Trump’s bid to block enforcement of a New York City prosecutor’s subpoena for his financial records. Lower courts in Washington and New York ruled against Trump in all three cases.
The third case concerns a subpoena issued to Mazars for similar information, including tax returns, as part of a grand jury investigation into Trump being conducted by the office of Manhattan District Attorney Cyrus Vance, a Democrat.
House powers under the microscope
The court has a 5-4 conservative majority, including two justices appointed by Trump, Neil Gorsuch and Brett Kavanaugh. Liberal justices seemed more sympathetic toward the House position, although they also raised concerns about the potential lack of limits on its ability to subpoena the president’s personal records.
The justices queried Trump’s lawyer, Patrick Strawbridge, about whether lawmakers can ever subpoena a president’s financial records. Conservative Chief Justice John Roberts questioned Strawbridge on the broad scope of his arguments.
“Do you concede any power in the House to subpoena personal papers of the president?” Roberts asked.
Strawbridge said it was “difficult to imagine” a situation where that would be justified.
Roberts’s questions seemed to express skepticism that Congress had no authority to issue a subpoena or that a court could second guess its motivations to do so, while also doubting that congressional power was limitless.
“Should a court be probing the mental processes of legislators? Should members of House committees be subject to cross examination on why you were really seeking these documents?” Roberts asked Justice Department lawyer Jeffrey Wall.
Trump’s lawyers have argued that the congressional panels had no authority to issue the subpoenas and had no valid legislative reason for seeking the records.
Roberts also seemed skeptical of arguments by a House lawyer that lawmakers have broad authority to investigate a president for the purpose of writing laws.
“Your test is not much of a test. It’s not a limitation,” Roberts told House counsel Doug Letter. The justice said the House needed to take into account that it was dealing with another, co-equal branch of government.
Trump, unlike other recent presidents, has declined to release his tax returns and other financial records that could shed light on his net worth and the activities of his family real estate company, the Trump Organization. The content of these records remains an enduring mystery of his presidency.
Concern about fishing expeditions
Gorsuch expressed concern about lawmakers abusing the subpoena process and fishing for unlawful conduct by a political rival.
“Normally we use law enforcement tools like subpoenas to investigate known crimes and not to pursue individuals to find crimes,” Gorsuch said.
Justice Stephen Breyer, appointed by Democratic President Bill Clinton in 1994, questioned whether under the approach taken by Trump’s lawyers, Congress would have been able to properly investigate the Watergate scandal of the 1970s under President Richard Nixon.
But Breyer also expressed concern Letter couldn’t cite potential limits on congressional inquiries.
Justice Elena Kagan, who was appointed by President Barack Obama in 2010, noted that where personal records are concerned, “the president is just a man.”
“What it seems to me you’re asking us to do is to put a kind of 10-tonne 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,” Kagan told Strawbridge.
Conservative justices appeared to differ on whether the court had a role in probing the motives behind the subpoenas. Trump’s lawyers have said the probes are intended to investigate the president for wrongdoing while the House said it was in pursuit of potential anti-corruption legislation.
Rulings weeks away
Roberts and Gorsuch appeared to be hesitant about second-guessing Congress, while Justice Clarence Thomas and Justice Samuel Alito seemed more skeptical about the Democrats’ motives.
“Why should we not defer to the House’s views on its own legislative purposes?” Gorsuch asked.
Wall said allowing the House subpoenas would lead to presidents being “harassed” about their personal lives.
“The potential to harass and undermine the president as president is plain,” Wall told the justices. “It is not much to ask that before the House delves into the president’s personal life it explains in some meaningful way what laws it is considering and why it needs the president’s documents in particular. The subpoenas here don’t even come close.”
The House committees have said they are seeking the material as part of investigations into potential money laundering by banks and into whether Trump inflated and deflated certain assets on financial statements — as his former personal lawyer has said — in part to reduce his real estate taxes.
It will likely take the court weeks to produce its rulings.