My favorite thing to
 do when I visit Washington is to watch oral arguments in the Supreme 
Court.  Today I listened to arguments  about tRUMP's tax returns as they
 were broadcast by C Span.  There were two cases.  The first was 
The House Of Representatives subpoena of tRUMP's returns.  The second 
was the New York district attorney (Cyrus Vance) subpoena of tRUMP's 
returns.  Here are my thoughts.
 
     The new format of arguing remotely is not the same format as when 
all of the justices sit together at the court.  The usual format is that
 an attorney starts speaking and is then interrupted by a justice asking
 a question.  Then the attorney starts answering and another justice 
asks a question.  This goes on for the entire argument.  That format 
allows justices to ask multiple followup questions.  In remote  format, 
the justice gets a turn and then it's over. Each justice's turn and the 
answer lasts about three minutes. I don't care for this format.
 
      The first case involved the House Of Representatives suing tRUMP's
 accounting firm to get a whole bunch of records including tRUMP's tax 
returns in the years before he became "president".  The first attorney 
for tRump made the bold statement that never before have the personal 
records of a president been subpoened.  There must be a compelling need,
 which does not exist in this case.   Later he referred to  
"demonstrated need." He argued that Congress had come up with a 
completely phony pretext to subpoena the records.  
   
 
         The House lawyer was the worst of the  lawyers who argued.  He 
fumbled.  He was obsequious.  Ar one point he could not come up with an 
answer to a hypothetical.  But at least he did say why there was a 
compelling need.  There were three committees which requested the 
subpoenas.  The subpoenas were requested after explosive information 
came to light about tRUMP's finances.  The intelligence Committee wanted
 to investigate whether a foreign power would have undue influence over 
the president.  The oversight committee was investigating whether there 
had to be legislation improving the Ethics in Government Act".  I 
believe the third committee  was looking at possible changes in the tax 
law.  To me, each of those committees had a compelling interest.
 
        Justice Ginsberg's first question out of the box was the best.  
She asked tRUMP's attorney how was this case differed from  subpoenaing 
 Bill Clinton's Whitewater records , the subpoena of Hillary Clinton's 
billings, the Nixon tapes,  Watergate records and the Paula Jones case. 
  tRUMP's attorneys did not make any decent  argument distinguishing 
those cases.
 
    Justice Thomas asked a couple  of surprisingly good question.  In 
the first case he asked whether Congress had implied powers to issue 
subpoenas.  The answer was "Yes."  Some have argued that subpoena power 
is not enumerated in the constitution.
 
       Breyer asked a simple question, "were the subpoenas in Watergate 
legal, yes or no?"   The response was that the President is on duty 24/7
 and therefore cannot be burdened with a subpoena.  In other words a non
 response.
On
 the other hand, Breyer made a statement that was chilling.  He said he 
worried that if there is no limit on Congressional subpoena power of the
 president, a future Joe McCarthy could subpoena a future Franklin 
Roosevelt.  I usually like Breyer.  Not this time.  In this case he was 
using a Reductio Ad Absurdum argument .  He was using the most absurd 
hypothetical possible to attack a reasonable proposition.  It seemed 
like Breyer was so fervent in his argument that he might vote with 
tRUMP.  I don't know how he can ignore the legitimate legislative 
concerns of Congress.
Alito asked an interesting question.  He asked if the president can be used as a case study for potential legislation.
 
         Sotomeyor had a great reference to an earlier Supreme Court 
case which said that a subpoena is valid if there is any conceivable 
reason to issue the subpoena. 
 
           Kagan made the point that there have been hardly any prior 
similar cases because Congress and the president have always come to an 
accommodation.  In this case, tRUMP refused any accommodation.
 
            Roberts asked if tRUMP's position is that the court must 
probe the mental processes of Congress to see if this is a pretext.
 
              tRUMP's attorney said that Congress needs to show the 
legislation it is proposing in order to justify the subpoena.  Ginsberg 
pointed out that legislation comes about only after investigation, not 
before.
 
                At one point tRUMP's attorney said that there needs to 
be a higher standard to subpoena the President.  Ginsberg asked how did 
that work out in the Paula Jones case.  She was cut off before the 
attorney could answer.
 
               Kagan brought up that in the Paula Jones case, Clinton 
argued that a deposition placed an undue burden on him.  The Supreme 
Court rejected that argument.
 
                 Gorsuch asked an excellent question.  Would it be a 
legitimate subpoena if Congress was investigating whether it should pass
 a law requiring presidents to disclose their tax returns.  tRUMP's 
lawyer answered "Yes."  As far as I'm concerned that question and answer
 should end the discussion.  Gorsuch followed up by saying the 
Whitewater subpoena was very much like this subpoena.  
 
            At some point tRUMP's lawyer said that the House had never 
articulated a legislative purpose for the subpoena.  The House attorney 
 said that the legislative purpose  was laid out in pages 17-36 of its 
brief.
 
             In the House case there is an issue of separation of 
powers.  That issue is not involved in the NY case.  I believe there are
 two big issues in the House case.  First,  did the house have a 
legitimate purpose for issuing the subpoena?  Second, does the Subpoena 
place an undue burden on the president?    I believe both issues should 
be decided in favor of the House.  Regarding the first issue,  the House
 set forth multiple reasons it had for wanting the tax returns.  
Regarding the second issue, none of tRUMP's attorneys detailed how 
subpoenaing  the records would place and undue burden on the president. 
 If I had been representing the House, I would have argued that there is
 not only no undue burden, in fact, there is no burden whatsoever.  The 
accounting firm would turn over the records.  tRUIMP could go on 
being president and playing golf. It was impossible, however to read 
where the Court was going.    I worry that the justices will rule that 
the Congressional subpoenas violate the separation of powers doctrine.  I
 don't buy it because  Congress had legitimate legislative reasons to 
get the records.  But then again, I am not a Supreme Court justice. 
 
         It turns out that the NY case is more compelling than the House
 case.   Even Jay Sekulow admitted that there is nothing improper for 
the district attorney to do a criminal investigation of the President.  
Sekulow drew the line, however, at issuing a subpoena.  He argued that a
 sitting president has absolute temporary immunity.  He had to concede 
to Justice Thomas  that such immunity is not written anywhere.  I was 
waiting for a justice to ask about immunity in the setting of the 
President shooting someone on Fifth Avenue, but no one asked the 
question.  
 
       In the NY case tRUMP was represented by Sekulow and the 
solicitor general of the United States.  They both brought up the 
ridiculous argument that there are 2300 county district attorneys in the
 United States.  If Cyrus Vance is allowed to Subpoena the president's 
records, that would open a Pandora's box allowing 2300 prosecutors 
to file law suits.  The NY attorney shot that argument down.  tRUMP 
lived in NY and his business enterprise was located in NY.  There is no 
jurisdiction in the 2300 other counties.
 
     I know this is an extraordinarily long e mail.  Trust me, I have 
enough notes to make it twice as long.  Let me just summarize.  tRUMP's 
side says that answering the subpoena would place an undue burden on 
him.  Remember the subpoenas were not issued to him but to his 
accountants. Throughout the argument I never heard a description by 
tRUMP's attorneys of the undue burden.  On the other side, I did not 
hear a good argument refuting the undue burden argument.  Second,  
everyone seems to agree that subpoenaing the president requires a higher
 standard than subpoenaing an ordinary person.  Congress and NY both 
argue that the higher standard was well met.  Third, there is the issue 
as to whether Congress issued the subpoena for the purely political 
reason of harassing the president.  This was Sekulow's argument.  No 
matter how the Supreme Court rules, I can't imagine it will buy 
Sekulow's argument.
 
        As I said at the outset, it is impossible to read how  the the 
Court is going based upon today's oral arguments.  I thought Thomas and 
Gorsuch asked good questions which would seem to favor the legitimacy of
 the subpoenas.  But Breyer gives me pause.  It would be fantastic if 
this court followed the Supreme Court precedent in Watergate and 
unanimously rule against the president.  But this is a completely 
different time and court.  I would be happy with a five-four ruling 
against tRUMP.  My prediction is that the Supreme Court will send the NY
 case back to the lower court to investigate whether there was  a 
legitimate reason to investigate a possible crime.  This would 
conveniently prevent the turn over of records until after the election. 
 I worry that the court will rule against The House based upon the 
separation of powers doctrine.  I would hope that at a minimum the 
Supreme Court will send the House case back for a determination as to 
whether there was a legitimate legislative purpose.  We should know the 
decision by the end of June.
                                                            Richard