Kagan noted that the subpoenas don't request official records, where the president could assert executive privilege, and queried why a lower standard shouldn't apply to personal records.
Deputy Solicitor General Jeffrey Wall appeared as amicus curiae (friend of the court) during the argument. Justice Stephen Breyer asked Wall, "why not apply the standard that is ordinarily applied to every human being in the United States ... go to a judge and say: Judge, this is overly burdensome." Wall argued that a congressional subpoena for a president's records should be measured by "a heightened standard."
When Kavanaugh suggested, "why not employ the demonstrably critical standard or something like that," Douglas Letter, counsel for the House of Representatives, replied that would violate separation of powers. Kavanaugh stated that the demonstrably critical standard is used when the president invokes executive privilege, but Letter reminded him that this case doesn't involve executive privilege because the subpoenas seek financial business records.
Executive privilege protects the need for confidentiality in presidential communications. In 1974, the Court held in United States v. Nixon that there is a qualified executive privilege and Richard Nixon was compelled to produce the Watergate tapes. "The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial," the Court ruled unanimously.
Wall complained that the House of Representatives had not explained why it needs the requested documents in order to exercise its legislative powers, in spite of the findings of the lower courts. Justice Ruth Bader Ginsburg charged that Wall would expect more from Congress than from a patrol officer. "To impugn Congress's motive, even the policeman on the beat, if he stops a car and gives the reason that the car went through a stop sign, we don't allow an investigation into what the subjective motive really was. So, here, you're distrusting Congress more than the cop on the beat," Ginsburg said.
Prosecutor's Subpoena Tests Whether Presidential Power Is UnlimitedThe second case the justices considered during oral argument was Trump v. Vance. Manhattan District Attorney Cyrus Vance, Jr., issued a subpoena to Mazars USA LLP for personal and business tax returns for a state grand jury investigation of hush money payments before the 2016 election. The Second Circuit Court of Appeals upheld the subpoena for most of the requested records.
Trump's lawyer Jay Sekulow argued that the Court of Appeals decision "would allow any DA to harass, distract, and interfere with the sitting President." He argued for "temporary presidential immunity" in a state criminal case, citing Article II of the Constitution (which establishes the executive branch) and the Supremacy Clause (that affirms the supremacy of federal over state laws).
Sekulow said he wasn't arguing that a grand jury can't investigate the president, just that the president should have immunity while in office. Chief Justice John Roberts retorted, "it's okay for the grand jury to investigate, except it can't use the traditional and most effective device that grand juries have typically used, which is the subpoena."
In 1997, the Court decided unanimously in Clinton v. Jones that a sitting president does not have immunity from federal civil litigation arising from conduct that occurred before he took office. Bill Clinton was compelled to give a deposition in Paula Jones's sexual harassment lawsuit against him.
Roberts reminded Sekulow that the Jones Court was "not persuaded that the distraction in that case meant that discovery could not proceed." Jones was a federal civil case and Vance is a state criminal proceeding, Sekulow argued. When he complained that 2,300 district attorneys could harass the president, Breyer responded, "of course, in Clinton v. Jones, there might be a million, I don't know, tens of thousands of people who might bring lawsuits."
Once again, Breyer suggested using the ordinary standard of whether compliance with the subpoena is "unduly burdensome." Kagan echoed Breyer's suggestion.
Gorsuch asked how this is more burdensome than Jones, which "sought the deposition of the President while he was serving," whereas "here, they're seeking records from third-parties."
Kavanaugh raised the issue of statute of limitations which could prevent prosecution after the president leaves office.
Solicitor General Noel Francisco, who appeared as amicus curiae, argued that the Court should apply the "special needs standard" from the Nixon case and not even reach the issue of presidential immunity. Francisco said the district attorney must show that the requested information is critical to a responsible charging decision, that he can't obtain it elsewhere, and that the information he has is insufficient.
Breyer and Sotomayor reminded Francisco that Nixon was an executive privilege case. Sotomayor suggested a standard of "harassment and interference," in which the court would "ask whether the investigation is based on credible suspicion of criminal activity and whether the subpoena is reasonably calculated to advance that investigation."
Carey Dunne, general counsel of the New York County District Attorney's Office, argued for a case-specific analysis. Once the president establishes that his Article II powers are burdened, the prosecutor must show an objective basis for the investigation and a reasonable probability that the request would produce relevant information. Dunne said the lower courts already found that the district attorney had met that standard.
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