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Thursday, May 14, 2020

Supreme Court reporter

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.


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