Adam Klasfeld+ Your Authors @KlasfeldReports Reporter, @CourthouseNews: NYC+Int’l. RTs=What's it to ya? adam[at]adamklasfeld[dot]com PGP Fingerprint: F427 EE3B 6F05 E5D5 785B 775B 2C74 683C 219D 91DC May. 12, 2020 8 min read + Your Authors

"Oyez, oyez, oyez."

Chief Justice Roberts announces Trump v. Mazars, and we're about to begin.

Roberts: Do you concede any powers in the House to subpoena personal records of the president?

Trump's attorney Patrick Strawbridge says it's "difficult to imagine" a situation where that would be justified. 

Justice Thomas has no questions.

Justice Ginsburg notes that every prior president has disclosed his tax returns.

"President Trump is the first one to refuse to do that," she notes.

She asks how Strawbridge distinguishes this case from Watergate, Whitewater, and others.

Justice Thomas *does* have questions about Congress' implied powers to subpoena documents:

"What's the difference between a legislative subpoena and an impeachment subpoena?"

Strawbridge says that the committees behind the subpoenas do not have jurisdiction over impeachment.

Justice Sotomayor notes there is a long history of Congress subpoenaing documents and getting them.

"I see a tremendous separation of powers problem" in Strawbridge's position of placing a heightened standard, Sotomayor says.

Sotomayor also notes the subpoenas target private entities, like the accounting firm Mazars, not Trump.

Justice Kagan adds that Strawbridge is asking SCOTUS to "put a ten-ton weight on the scales between the president and Congress."

Strawbridge: "These subpoenas fail every hallmark of a legitimate legislative investigation."

Kagan counters: "I think some former presidents might contest the idea that these subpoenas go further than has ever gone before."

Gorsuch notes that the House argues that there is a legislative need. Why not defer to them?

(Context from me: One of those needs, the House has argued before, is studying whether financial institutions are complying with anti-money laundering statutes.) 

Want to listen along?

Deputy Solicitor General Jeffrey Wall is up now. 

Chief Justice Roberts to deputy solicitor general: Should a court be probing the mental processes of Congress members to question their intentions?

Wall claims that the subpoenas on their face show they do not support those intentions.

Justice Ginsburg: "One must investigate before legislation."

Analogizing it to a policeman on the beat, the courts don't allow speculating on the motive for stopping a car.

"Here, you're distrusting Congress more than the cop on the beat."

Follow my D.C. colleagues @MMineiro_CNS and @ByTimRyan, who are on the SCOTUS story for @CourthouseNews today.

I am listening in and tweeting periodically from New York as an interested journalist who covered the case in SDNY.

Sotomayor: "I think it's fairly common knowledge that Mr. Trump before he was president was thinking about running for president for a very long time."

She asks why would investigating his financial relationships leading up to the presidency would not be fair game.

Sotomayor: "They're not asking for these records post-being president. They're asking for these records pre-being president."

Kagan presses on the Clinton v. Jones standard, which rejected the notion of presidential immunity.

The Deputy Solicitor General concedes the similarity between the Whitewater subpoenas to the ones in this case, under questioning by Kavanaugh.

"I'll grant, that subpoena looks very much like this one."

The House's counsel Douglas Letter is now up, noting the committees specified the purpose of the subpoenas in detail.

"We want records from third-party business entities, their analyzes of requests for loans."

They include documents Trump has never even seen, he says.

That means, Letter argues, that Trump cannot have a liberty and privacy interest in them.

Roberts asks whether there is any probe that can't conceivably be tied to legislation.

"Your test is not really much of a test," Roberts says. "It's not a limitation."

Under questioning by Justice Thomas, Letter defends the "implied powers" of Congress.

"This court's power of judicial review, that's nowhere mentioned in the Constitution," Letter says, referring to SCOTUS.

Justice Ginsburg asks about the concern that Congress is using this subpoena power to harass a political rival. She asks what limiting principle can be given.

Letter: "Two answers, your honor." He then cites two SCOTUS precedents.

McGrain v. Dougherty and Clinton v. Jones.

The McGrain decision provided for the first time that Congress can compel witnesses to provide testimony.

The Clinton precedent established presidents are not immune for conduct prior to office.

Letter's arguing that courts established the guardrails. It's not limitless.

Alito says he's "baffled" by that answer to Ginsburg on the limiting principle.

If it's the courts, Alito says: "That's why we're here."

Letter notes the four courts below all found there was valid legislative purpose.

Letter: "If they were solely for harassment, they would not meet the standard."

Alito says that Letter was not able to provide Justice Roberts with an example of a subpoena that could not be tied to a legislative purpose.

"In your view, there is really no protection" for this use of subpoenas, Alito says.

Letter says that the Trump administration's arguments in this case "ask you to ignore a massive amount of history."

Addressing the concern that the subpoenas could impair the president's work, Letter notes that cannot happen in this case because the subpoenas do not involve him.

It's two banks and an accounting firm, Letter says, referring to Deutsche, Capitol One and Mazars.

* Capital One.

Pardon the typo.

"What about [the president's] medical records?" Kavanaugh asks.

Letter responds that they would almost always not be pertinent to a congressional investigation, except perhaps under a 25th Amendment context.

Thomas: "At some point, there will be a straw that breaks the camel's back," meaning juggling the burden of multiple subpoenas.

Letters emphasizes again, in response, that nothing is required of the president or the White House in response to the subpoenas to private entities.

Breyer asks Letter whether he would want to inspect subpoenas of third parties request broad categories of his own personal information.

"There may be burdens here, third party or not."

Breyer says he's concerned about such searches in the hands of a future Senator McCarthy.

Letter emphasizes there is no claim of privilege here, and the broad categories of financial information are necessary to investigate the particular topic under congressional scrutiny: money laundering.

Letter notes that public reporting further supports the Financial Services probe:

Deutsche Bank and Capital One have both been sanctioned millions for violating anti-money laundering provisions.

Trump's attorney Patrick Strawbridge has two minutes for rebuttal and he jumps on the what he describes as a failure to provide a hypothetical limits on congressional subpoenas.

Oral arguments in the congressional subpoenas cases have concluded.

Separate arguments over Manhattan DA Cyrus Vance's similar subpoenas are up ahead. Look out for my colleague @ByTimRyan's coverage on @CourthouseNews. 

Up first in oral arguments in the case involving the Manhattan DA's probe is Trump's attorney Jay Sekulow, who notes that Vance's subpoenas are similar to those of the congressional committees.

Roberts presses Sekulow on Clinton v. Jones.


Clinton v. Jones was in federal court; this is in state court.

Clinton v. Jones was a civil case; this is a criminal probe.

Thomas: Does it make a difference when a subpoena goes to a third party?

Sekulow: Certainly not here.

Justice Ginsburg: We have said in the grand jury context that the public has the right to every man's evidence. Is it your position that that's, save for the president?

Ginsburg: "Every man's evidence" excludes the president?

Sekulow replies that the president should not be treated as an ordinary citizen, as he is his own branch of government, and it's a temporary immunity.

Justice Breyer asks why the Clinton v. Jones principle should not apply here.

Sekulow warned that the Vance case could open floodgates to county prosecutors across the country, but Breyer notes the same is true--if not more so--of civil litigation.

Sotomayor to Sekulow: Counsel, it seems to me that you're asking for a broadness of immunity... that's nowhere in the Constitution.

She says she finds it "odd" that he wants SCOTUS to rule there is an immunity against prosecutor probes, but not civil litigation.

Even though the president is not a common citizen, Kagan says, it's also a principle of our constitutional order that a president isn't above the law.

Sekulow: What's to stop them from seeking a deposition of a president or bringing him before a grand jury?

Gorsuch and Kavanaugh press him on why there would be a different rule applied for civil and criminal, given the Clinton v. Jones precedent.

Chief Justice Roberts notes that Sekulow, representing Trump, argued for an "absolute standard": "No way. No how."

The solicitor general Noel Francisco, representing the United States, is arguing for a "special needs" standards.

Roberts asks what's wrong with Trump's position.

(Roberts is referring to Trump's claim of absolute immunity from investigation.)

Francisco demurs, saying he's not criticizing Trump's position but there's no need for his office to get into absolute immunity questions because, he said, special need isn't shown.

Justice Ginsburg: You don't give any credit at all to the 10th Amendment, which is the reserved powers of the states.

RBG: The grand jury is an investigatory body. It does not make at the outset specific charging decisions, while the investigation is on the way.

She says that the government seems to argue that they make the "backwards" decision of making charging decision prior to the probe.

New York District Attorney's counsel Carey Dunne is now up:

He says the investigation was sparked from the suspicion that "certain business transactions within our jurisdiction were illegal."

Manhattan DA counsel Carey Dunne on the argument that upholding the grand jury subpoenas would let local prosecutors around the country run amok:

"The supposed floodgates have been open for generations, and there never was a flood."

RBG asks him to respond to the concern raised by Trump's team: When you're dealing with federal prosecutions, they're all controlled by the AG, but here you have 2,300 district attorneys.

Manhattan DA's counsel mocks the "parade of horribles" fears and "apocalyptic" visions.

Manhattan DA's counsel: "There's just no basis to think that [those] prosecutors would even have jurisdiction over the president."

New York does because Trump Org is headquartered here.

Justice Alito asks whether the adjudication over these disputes would vary by state rules of grand jury secrecy.

Manhattan DA's counsel says that he is not aware of other states have lax grand jury secrecy rules, but he adds that New York's are as stringent as federal rules.

Justice Alito presses Manhattan DA's counsel Dunne on whether his office has been tied to press leaks of grand jury material.

Dunne: They ask all the time, your honor, and the answer is consistently no.

You can follow @KlasfeldReports.


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