WASHINGTON – The Supreme Court posed tough questions to both sides Tuesday in a landmark separation-of-powers dispute between President Trump and House Democrats over access to Trump’s personal and corporate financial records.
On one hand, even some conservative justices challenged the president’s private lawyer and the Justice Department about House committees’ legitimate rights to subpoena Trump’s accountant and bankers for information that could lead to legislation.
“Why should we not defer to the House’s view of its own legislative purposes?” Associate Justice Neil Gorsuch, a Trump nominee, asked.
On the other hand, even liberal Associate Justice Stephen Breyer wondered whether the subpoenas go too far in seeking private data involving not only the president but members of his family.
“At some point, there’s a straw that breaks the camel’s back,” Associate Justice Clarence Thomas said. “At some point, it debilitates the president.”
The dramatic oral arguments, conducted by telephone amid the coronavirus pandemic and broadcast live, could result in landmark rulings on a president’s immunity from investigation while in office and Congress’ oversight powers, right in the middle of the 2020 presidential campaign.
In previous separation-of-powers battles over documents or testimony, the Supreme Court ruled unanimously against Presidents Richard Nixon in 1974 and Bill Clinton in 1997, with their nominees in agreement. The decisions led eventually to Nixon’s resignation and Clinton’s impeachment.
That history raises the pressure on today’s high court, which Chief Justice John Roberts has said should seek unanimity wherever possible.
The legal battles pit Trump against three House committees, controlled by Democrats, that have issued subpoenas for eight years of financial documents. A separate fight involves Manhattan District Attorney Cyrus Vance’s subpoena for similar documents as well as the tax returns that Trump, unlike recent predecessors, has not released.
Lawmakers claim the records will help determine the need for future legislation in areas such as campaign finance law, bank loan practices, and efforts to prevent foreign influence in elections. Trump’s lawyers say it’s a fishing expedition to see if the president is guilty of tax fraud or money laundering.
During oral argument Tuesday, three liberal justices appeared to take the House’s side, while two conservatives leaned toward the president. That left Roberts, Gorsuch, Breyer and Associate Justice Brett Kavanaugh closer to the middle.
Roberts summed up the dispute over the breadth of the House subpoenas by noting Congress has a right to seek personal records. But at some point, he said, it can lead to harassment.
“How can we both protect the House’s interest in obtaining the information it needs to legislate but also protect the presidency?” Kavanaugh asked House general counsel Douglas Letter.
All three branches of government have much at stake:
• The political earthquake that some justices may be seeking to sidestep would be most acutely felt if the president loses and the documents are made public during his reelection campaign. For nearly five years since declaring his candidacy in 2015, Trump has managed to keep his tax returns and much of his financial data from prying eyes.
• Congress has much at stake as well. Its oversight authority could be constrained by a ruling in Trump’s favor, setting a precedent for future investigations – particularly those viewed as partisan.
• There also are high stakes facing the high court. If it sides with Trump along ideological lines – with five justices named by Republican presidents in the majority and four named by Democrats in dissent – it could emerge as damaged goods in the eyes of the public.
The congressional subpoenas emanate from three House committees, rather than one or both houses of Congress – a potential shortcoming Trump’s lawyers have sought to impress upon the Supreme Court.
The House Committee on Oversight and Reform issued a subpoena to Mazars USA, Trump’s accounting firm, more than a year ago seeking financial records from the president, his family business, a trust and the company that runs Trump International Hotel in Washington, D.C. Thus far, two federal courts have upheld the subpoena.
Trump’s former personal lawyer, Michael Cohen, testified before Congress that as a private citizen, Trump routinely overstated or understated his holdings for financial gain. The panel wants to compare eight years of financial documents to Cohen’s testimony and government disclosures.
The House Financial Services Committee and the House Intelligence Committee issued subpoenas to Deutsche Bank and Capital One more than a year ago seeking records from Trump, his three oldest children and the Trump Organization. The panels are probing risky lending practices by major financial institutions and efforts by Russia to influence U.S. elections. They, too, have been upheld twice in lower courts.
The Manhattan district attorney’s subpoenas came later as part of a criminal probe of hush-money payments that Cohen said were made to adult film star Stormy Daniels and former Playboy model Karen McDougal, who claimed they had affairs with Trump that he has denied. Once again, two lower courts upheld the subpoenas.
Trump’s lawyers have argued that the president has absolute immunity while in office from grand jury investigations of criminal conduct. During oral arguments before the U.S. Court of Appeals for the 2nd Circuit, they contended Trump could shoot someone on Fifth Avenue and escape prosecution until he leaves office.
Richard Wolf covers the Supreme Court and legal issues for USA TODAY. You can follow him on Twitter @richardjwolf.
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