By Jess Bravin and Brent Kendall
WASHINGTON -- President Trump's lawyers asked the Supreme Court
on Tuesday to quash congressional and criminal subpoenas seeking
financial records from his bankers and accountants, as
long-simmering controversies over Mr. Trump's private business
affairs came into focus ahead of the full blaze of the presidential
campaign.
Decisions in the cases are expected by summer. Losses for the
president could force release of documents requested by
Democratic-led House committees whose leaders could call further
hearings, or lead to expanded criminal probes of his associates in
New York. Wins would put that material out of investigators' reach
while he remains in office. A third scenario, in which the justices
kick the cases back to the lower courts, would further delay
resolution of the issues.
The justices expressed concerns reaching beyond the Trump era,
asking how their decision might shape presidential, legislative and
law-enforcement powers far into the future.
The separate cases involve much of the same information, with
both House and New York state investigators seeking records related
to payments made to silence two women who claimed extramarital
affairs with Mr. Trump, allegations the president has denied. House
committees also are seeking documents related to alleged
money-laundering schemes and Russian efforts to influence the U.S.
government.
Jay Sekulow, a personal lawyer for Mr. Trump, told the court it
all boiled down to the same thing. "What's really happening here
could not be clearer. The presidency is being harassed and
undermined with improper process," Mr. Sekulow said.
Throughout three hours of argument, conducted via teleconference
because of the coronavirus pandemic, the justices made clear that
they saw distinct legal and policy questions in the cases. Their
questions suggested there could be different results for the case
of the House subpoenas, which lawmakers say they issued to inform
potential legislation over ethics, money-laundering and foreign
interference, and that of the subpoena approved by a state grand
jury in Manhattan, where District Attorney Cyrus Vance Jr. is
investigating potential financial crimes related to the Trump
Organization.
The president's lawyers argued in both cases that the
Constitution shields him from investigation by either the House or
the district attorney's office, both of which are controlled by
Democrats. But justices of different ideological stripes appeared
uncomfortable with granting blanket immunity to the president -- or
simply allowing lawmakers or prosecutors to investigate the
president without adequate cause, suggesting the court might strive
to craft a standard to judge such disputes.
If so, the justices could return one or both cases to the lower
courts for additional review, further delaying resolution of the
disputes as the November election nears.
"The fact that what I hold today will also apply to a future
Sen. McCarthy asking a future Franklin Roosevelt or Harry Truman
exactly the same questions, that bothers me," said Justice Stephen
Breyer, referring to Joseph McCarthy, the Wisconsin Republican who
in the 1950s used congressional investigatory powers to smear
witnesses as Communist infiltrators.
Several justices brought up more recent cases.
In 1974, the Supreme Court upheld the Watergate special
prosecutor's subpoenas for President Nixon's White House tapes, and
in 1997, it rejected President Clinton's claim that in office he
couldn't be sued for alleged sexual harassment predating his
presidency.
"How do you distinguish, say, Whitewater, when President
Clinton's personal records were subpoenaed from his accountant, or
even Hillary Clinton's law-firm billing records were subpoenaed?"
said Justice Ruth Bader Ginsburg. She suggested that Mr. Trump had
provoked the conflict by departing from the financial disclosures
presidents and major-party presidential candidates have made since
the Nixon era.
"The Whitewater subpoena is the closest analogy," said Deputy
Solicitor General Jeffrey Wall, arguing in support of Mr. Trump's
position. "It was never litigated. But I'll grant that subpoena
looks very much like this one."
Still, he said, "If we go down this road and the houses of
Congress can weaponize the subpoena power in this new way, that's
going to sit in the standing arsenal for years against the
president and any other constitutionally created officer."
House General Counsel Douglas Letter, defending subpoenas the
committees issued to Mazars USA LLP, Deutsche Bank AG and Capital
One Financial Corp., said the document demands were related to
important matters of public interest in which Congress should play
a role.
But several justices expressed concern that lawmakers could
subpoena private material from the president related to any subject
on which they might legislate.
"It's not a limitation. And it doesn't seem in any way to take
account of the fact that we're talking about a coordinate branch of
government, the executive branch," said Chief Justice John
Roberts.
Mr. Letter said the records sought must be pertinent -- and said
the House met that test. The Intelligence Committee, he said, has
"an obvious need to focus on the president's financial records to
determine if the president is subject to foreign leverage."
Justice Clarence Thomas questioned whether a president could
face so many investigations as to interfere with his duties. "[I]t
seems as though you're saying that we should look at these in
isolation," he told Mr. Letter. "Why wouldn't we look at all of
them...and whether at some point it debilitates the president?"
"If our subpoenas were on top of numerous others from grand
juries around the United States, you could look at that," Mr.
Letter said. But the three issued by House committees were to
"private business entities, " he said. "Not a single thing is
required of the president or the White House."
"But I think we all know it's about the president," Justice
Thomas returned.
Arguing in the second case, Mr. Sekulow, who also helped defend
the president during his Senate impeachment trial earlier this
year, said allowing the Manhattan district attorney to subpoena
records from Mr. Trump's bankers and accountants "would allow any
D.A. to harass, distract, and interfere with the sitting
president."
Chief Justice Roberts observed that the court's 1997 ruling
allowed discovery to proceed against Mr. Clinton.
"I would have thought the discovery in a case like Clinton v.
Jones, even though civil, would be as distracting as you argue the
grand jury proceedings are here," the chief justice said.
Mr. Sekulow said the concerns were different, because the Jones
suit was a civil action heard in federal court. A state criminal
investigation was more intrusive and damaging to the presidency, he
said.
Carey Dunne, a lawyer representing District Attorney Vance, said
prosecutors weren't targeting Mr. Trump for political reasons but
following up on press reports, legal proceedings and congressional
testimony that financial crimes related to the Trump Organization
might have been committed in their jurisdiction.
Mr. Dunne had a succinct answer when asked what limited a
district attorney from improperly issuing subpoenas.
"We believe a prosecutor should be required to show: one, an
objective basis for the investigation; and two, a reasonable
probability the request would yield relevant information," he
said.
The New York subpoenas, he said, required no action from the
president at all, as they were directed to third parties that
actually held the records.
Mr. Trump's claim of "possible mental distraction" fell short,
he argued. "It's based on the notion that the president might be
worried and distracted about where an investigation might lead some
day," rather than actual interference with his duties.
Justice Samuel Alito noted that in the 1997 case, the court
dismissed concerns that the lawsuit could overburden the White
House.
"Would you say that the court's prediction in Clinton v. Jones,
that the decision wouldn't have much of an impact on the
presidency, has been borne out by history?" he asked.
The case helped fuel a trail of events leading to Mr. Clinton's
impeachment.
Mr. Dunne noted the trial judge ultimately dismissed the suit.
Impeachment followed because "in his brief deposition in the case
that the president committed perjury," Mr. Dunne said. "So I don't
think it was this court's opinion or the litigation itself that led
to those problems. Frankly, it was his decision to lie under
oath."
Write to Jess Bravin at jess.bravin@wsj.com and Brent Kendall at
brent.kendall@wsj.com
(END) Dow Jones Newswires
May 12, 2020 18:24 ET (22:24 GMT)
Copyright (c) 2020 Dow Jones & Company, Inc.
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