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Donald Trump claims that while he is president, his pre-presidency financial records can't be subpoenaed and he can't even be investigated for criminal conduct. The Supreme Court will decide by the end of June whether Trump is indeed beyond the reach of the law.
On May 12, the Supreme Court heard oral arguments about whether Trump can block subpoenas for his tax and other financial records that predate his presidency. Although prior presidents made their tax returns public, Trump has steadfastly refused to reveal his. In 2016, he promised to release them when the purported "audit" is complete. But they remain under wraps.
In April 2019, three committees of the House of Representatives and the New York district attorney issued subpoenas to banks and financial institutions to obtain Trump's records. Trump sued to prevent the disclosures. Even though all four lower courts that considered the issue ruled that the records must be produced, Trump continues to stonewall, claiming in essence he is above the law.
During the oral arguments, the justices disagreed about what standard should be used to determine when a president can block subpoenas to third parties for records relating to his personal conduct before he took office. A majority of the justices seemed to reject the argument made by the lawyer for the House of Representatives, that congressional committees have broad authority to obtain a president's personal records. But they were also skeptical of Trump's argument that he has immunity from state grand jury investigations while he is president.
"One of the most important takeaways from the oral arguments is that no justice appears to accept the extreme argument made by Jay Sekulow, President Trump's personal lawyer, that the president is entitled to an absolute temporary immunity from a state grand jury investigation into his private conduct before becoming president," Stephen Rohde, a scholar of constitutional law, told Truthout. "That argument only had an audience of one."
The justices first took up the cases of Trump v. Mazars and Trump v. Deutsche Bank. In April, the House Committee on Oversight and Reform subpoenaed documents from Mazars USA LLP, Trump's accounting firm, because the committee was investigating payments of hush money and whether Trump lied about his assets to underpay taxes. Pursuant to an investigation of whether there was foreign interference in the election, the House Permanent Select Committee on Intelligence and the House Committee on Financial Services subpoenaed documents from Deutsche Bank and Capital One, which had loaned Trump large sums of money.
Both the district court and the Court of Appeals rejected Trump's challenges to the subpoenas.
During the Supreme Court argument, Justice Sonia Sotomayor cited the Court's precedent "that a congressional subpoena is valid so long as there is a conceivable legislative purpose and the records are relevant to that purpose."
Justice Brett Kavanaugh said, however, "I think, pertinent to a legislative purpose is almost no limiting principle at all." Most of the justices appeared to agree.
Patrick Strawbridge, Trump's personal lawyer, suggested a more rigid standard. He said that when Congress employs its subpoena power against the president, "it must yield absent any long-standing tradition or particularly compelling showing of need," that is, a "demonstrated need standard."
Strawbridge charged that "the committees have not even tried to show any critical legislative need for the documents these subpoenas seek."
Justice Neil Gorsuch then asked Strawbridge, "Why should we not defer to the House's view about its own legislative purposes?" and Strawbridge replied that Congress's subpoena power was "an implied power" that can't be used "to challenge the structure of government." He added that "a subpoena targeting the President's personal documents is a challenge to the separation of powers."
But Sotomayor warned of a separation of powers problem if the Court were to establish "a heightened standard or clear statement" requirement. She asked Strawbridge whether he was disputing the Intelligence Committee's stated purpose: "investigation efforts by foreign entities to influence the U.S. political process and related to the financial records."
Justice Elena Kagan characterized Strawbridge's position as asking the Court "to put a kind of 10-ton weight on the scales between the President and Congress and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the President is concerned."
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Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of the National Advisory Board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. See (more...)