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
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