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US Supreme Court judges on Tuesday appeared divided as they weighed President Donald Trump’s attempt to prevent Democratic-led congressional panels from getting his financial records, with its conservative majority appearing to be concerned about improper harassment of the president by politicians.
In a showdown over presidential powers, judges asked tough questions of an attorney for Mr Trump and a Justice Department lawyer who both sought to justify a refusal to comply with subpoenas by three House of Representatives committees for the financial records. But the judges also pressed a lawyer for the House to explain why the subpoenas were not simply harassment of the Republican president.
The judges asked the House’s lawyer whether Congress should be limited in issuing subpoenas so as to not distract a president or frustrate the carrying out of his official duties.
The nine judges heard an oral argument lasting more than 90 minutes by teleconference over attempts by House of Representatives committees to obtain the records in a pair of cases that test the authority of Congress to conduct oversight of the president.
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Conservative majority
Mr Trump has sought to block enforcement of subpoenas by House of Representatives committees seeking his financial records from Mazars LLP, his long-time accounting firm, and two banks, Deutsche Bank and Capital One.
The judges then opened an oral argument in a third case that involved Mr Trump’s attempt to block enforcement of a New York City prosecutor’s subpoena for Mr Trump financial records. Lower courts in Washington and New York ruled against Mr Trump in all three cases.
The Supreme Court has a five to four conservative majority, including two judges appointed by Mr Trump. Liberal judges seemed more sympathetic towards the House position, although they also raised concern about the potential lack of limits on its ability to subpoena the president’s personal records.
The judges queried Mr Trump’s lawyer, Patrick Strawbridge, about whether politicians can ever subpoena a president’s financial records. Conservative chief justice John Roberts questioned Mr Strawbridge on the broad scope of his arguments.
“Do you concede any power in the House to subpoena personal papers of the president?” asked Judge Roberts.
Mr Strawbridge replied that it was “difficult to imagine” a situation where that would be justified.
Judge Roberts’s questions of lawyers representing both Mr Trump and the House signalled his view of the need to strike a balance between the powers of the president and Congress. On the one hand, he expressed scepticism that Congress had no authority to issue a subpoena or that a court could second guess its motivations to do so, while also doubting that congressional power was limitless.
“Should a court be probing the mental processes of legislators? Should members of House committees be subject to cross-examination on why you were really seeking these documents?” Judge Roberts asked Justice Department lawyer Jeffrey Wall.
A sceptical chief justice
Mr Trump’s lawyers have argued that the congressional panels had no authority to issue the subpoenas and had no valid legislative reason for seeking the records.
Judge Roberts also seemed sceptical of arguments by a House lawyer that politicians have broad authority to investigate a president for the purpose of writing laws.
“Your test is not much of a test. It’s not a limitation,” he told House counsel Doug Letter, adding that the House needed to take into account that it was dealing with another, co-equal branch of government.
Mr Trump, unlike other recent presidents, has declined to release his tax returns and other financial records that could shed light on his net worth and the activities of his family real-estate company, the Trump Organization.
The content of these records remains an enduring mystery of his presidency.
Conservative judge Neil Gorsuch, one of Mr Trump’s appointees on the court, expressed concern about politicians abusing the subpoena process and hunting for unlawful conduct by a political rival.
“Normally we use law enforcement tools like subpoenas to investigate known crimes and not to pursue individuals to find crimes,” said Judge Gorsuch.
Liberal judge Stephen Breyer asked whether under the approach taken by Mr Trump’s lawyers Congress would have been able to properly investigate the Watergate scandal of the 1970s under then president Richard Nixon.
Liberal judge Elena Kagan noted that where personal records are concerned “the president is just a man”.
“What it seems to me you’re asking us to do is 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,” Judge Kagan told Mr Strawbridge.
Anti-corruption laws
Conservative judges appeared to differ on whether the court had a role in investigating motives behind the subpoenas. Mr Trump’s lawyers have said the inquiries are intended to investigate the president for wrongdoing while the House said it was in pursuit of potential anti-corruption legislation.
Judge Roberts and Judge Gorsuch appeared to be hesitant about second-guessing Congress, while Judge Clarence Thomas and Judge Samuel Alito seemed more sceptical about the Democrats’ motives.
“Why should we not defer to the House’s views on its own legislative purposes?” asked Judge Gorsuch, suggesting scepticism about one of the president’s arguments.
Mr Wall said allowing the House subpoenas would lead to presidents being “harassed” about their personal lives.
“The potential to harass and undermine the president as president is plain,” Mr Wall told the judges. “It is not much to ask that before the House delves into the president’s personal life it explains in some meaningful way what laws it is considering and why it needs the president’s documents in particular. The subpoenas here don’t even come close.”
The third case concerns a subpoena issued to Mazars for similar information, including tax returns, as part of a grand jury investigation into Mr Trump being conducted by the office of Manhattan District Attorney Cyrus Vance, a Democrat.
Three months after Mr Trump avoided removal from office in a Senate impeachment trial, his lawyers want the Supreme Court to endorse their expansive view of presidential powers that would limit severely the ability of Congress to carry out oversight of presidents and of prosecutors to investigate them.
Mr Trump has won key victories at the high court including over his hard-line immigration policies. But he lost a big case a year ago regarding the US census when Judge Roberts joined the court’s four liberals.
Rulings are likely within weeks, with Mr Trump seeking re-election on November 3rd amid the coronavirus pandemic. The teleconference format was adopted during the pandemic.
The House committees have said they are seeking the material as part of investigations into potential money laundering by banks and into whether Mr Trump inflated and deflated certain assets on financial statements – as his former personal lawyer has said – in part to reduce his real-estate taxes. – Reuters