Trump’s attorneys say that the President cannot be investigated while in office.
“We are asking for temporary presidential immunity,” Trump attorney Jay Sekulow told the court, defending himself from a New York citation for the President’s tax records.
Conservative judges have focused on the question of whether Democrats’ efforts to get Trump’s records equate to harassment or overly burdensome for the president. Unlimited power could lead to a wave of quotes, they suggested.
“One could be manageable. But 100 could be impossible,” Judge Clarence Thomas told Chamber General Councilor Douglas Letter, describing how both houses of Congress and juries could be citing a president’s documents at the same time.
Judge Samuel Alito also burned the Letter with questions about whether the chamber quotes were harassing Trump.
“That’s the problem here: if something should be done” to “prevent harassment of the president,” said Alito.
Supreme Judge John Roberts also asked for congressional quotes that may seem harassing the President. “How is harassment measured in such a case?”
Liberal judges, meanwhile, have launched a lawyer for Trump, suggesting that the court has long supported Congress’ power to investigate.
Judge Ruth Bader Ginsburg took note of previous investigations into Watergate, Whitewater and Paula Jones.
“How all those cases stand out,” he asked, adding that before Congress can legislate, he must investigate.
Justice Elena Kagan made it clear that “this is not the first conflict between Congress and the President,” he said. In previous conflicts, the White House and Congress have been unable to reach an agreement. This obviously didn’t happen here, said Trump attorney Patrick Strawbridge.
“You’re asking us to do is put some 10-ton weight on the balance between the President and Congress and essentially make it impossible to carry out control and perform his duties with regards to the President,” said Kagan.
Roberts started by trying to see if the House had the power to invoke personal documents. “It seems that, in the end, this is just another case where the courts are balancing competing interests on both sides, is it the wrong way to see it?”
The cases come in the midst of a successful term where the judges are already deciding cases involving DACA, LGBT rights and abortion. The court is also considering the Department of Justice’s emergency request for the House’s ability to access jury material from the Mueller spacecraft and parts of the Mueller report.
The discussions were scheduled to be heard in late March, but were delayed due to the pandemic.
While Tuesday’s cases concern both the President’s financial documents, they trigger separate legal issues.
Quotes from the Democrats of the Independent Auditors
The first two cases, argued simultaneously, put the president’s personal attorneys against house democrats who claim they need documents from Trump’s longtime accounting firm and two banks to investigate a variety of issues ranging from the alleged cash payments, illegal foreign involvement in a U.S. campaign and potential money laundering and ethical rules violations.
Trump’s lawyers have sued to block the suing claiming that although they are directed to third parties – Mazars USA, Deutsche Bank and Capital One – they involve the President and members of his family and represent an illegal fishing expedition. Democrats say they need the documents regardless of whether the president’s impeachment process ended earlier this year with acquittal.
Letter, a lawyer from the House of Representatives, said in court documents that there is “nothing unprecedented” about the citations of Congress documents and that the Supreme Court precedent has “long recognized” that Congress can investigate potential offenses as long as it is connected to a valid legislative purpose.
The letter indicated the inquiry by the Financial Services Committee into the use of banks in the United States to implement international money laundering and unsafe loans practices. The intelligence committee is examining the targeted risks posed by foreign interference in the U.S. political process and has attempted to document whether foreign actors had leverage on Trump. And he said the Supervisory Committee was looking at presidential financial information and conflicts of interest.
“Not only has it been possible to legislate on these issues, but the committees have introduced or communicated several bills related to their investigations and conducted significant scrutiny by the relevant agencies,” said Letter.
Strawbridge told the judges in the documents that the summons were part of an effort launched by President of the Chamber Nancy Pelosi after Democrats took over the House to “investigate all aspects of the President’s public and private life.”
“Calling these quotes unprecedented would be an understatement,” Strawbridge said, adding that it represented “the first time Congress has sued the private records of an incumbent president.”
“These quotes are all expansive, expensive and fuzzy fishing expeditions,” he said.
The Justice Department sided with Trump, arguing that court summons represent a “serious risk of harassing the President and distracting him from his constitutional duties”.
Chief deputy attorney general Jeffrey Wall told the judges that when a legislative summons requires information from the President, it must meet a higher standard. Both chambers of the Chamber must authorize the summons in question and the information requested must be “demonstrably critical” for a “legitimate legislative purpose”.
“Since the committees here have not made those demonstrations, the suing violates the Constitution,” he argued.
The Justice Department suggested a way out for the judges, saying that they could avoid having to govern Congress’s investigative powers against the President, simply by invalidating the quotes on the threshold because they were not authorized by the entire Chamber. “A vote in the House ensures adequate deliberation and is part of the system of checks and balances,” said Francisco.
A brief summary of former senior Justice Department officials said that Congress’s power is not “absolute” and that the President can invoke executive privilege if he wishes. They also highlighted the previous one. During the administration of President Bill Clinton, the Senate listened to testimony in a Whitewater investigation by the Clinton family’s personal accountant. In 1980, a Senate commission was investigating whether President Jimmy Carter had played a role in his brother Billy Carter’s contacts with businesses in Libya. The committee reviewed the president’s property holdings and obtained Bill Carter’s tax and bank records.
New York seeks Trump’s tax returns
New York District Attorney Cyrus Vance sued Trump’s longtime accounting firm Mazars USA for his tax returns as part of an investigation into payments of money to two women with whom the president allegedly had extramarital affairs according to Michael Cohen’s testimony. (Trump has denied business.)
Trump’s personal attorneys and the Justice Department want the judges to overturn the lower courts that have stated that the summons could go on.
“Today we have no opportunity to decide the precise contours and limitations of the president’s immunity from prosecution,” wrote Judge Robert A. Katzmann for the United States Circuit 2nd Court of Appeals. “We only conclude that presidential immunity does not rule out the application of a state jury citation” directed to Trump’s accounting firm.
Katzmann made sure, however, that “the last six presidents, dating back to President Carter, voluntarily released all tax returns to the public.” The Court relied on previous cases including a 1974 U.S. case against Nixon, in which the Supreme Court upheld a subpoena directed to President Richard Nixon to produce some tape recordings at the heart of the Watergate investigation.
“The president has not persuasively explained why, if the executive privilege does not preclude the application of the summons issued to Nixon, Mazars’ summons must be ordered despite the fact that he does not seek inside information and has no relation to the performance of his official duties. from the president, “wrote Katzmann.
Sekulow has legally argued that Trump has the right to “temporary presidential immunity” while in office in part because he has “unparalleled responsibility to defend the nation, manage foreign and national affairs and execute federal law.” He said that “any and all” prosecutor should not be able to target the President, especially in connection with a state criminal trial.
Sekulow warned that “doors will open” if states are able to prosecute the president.
The Justice Department supports Trump here, but does not adopt his expansive views on presidential immunity. Instead, Attorney General Noel Francisco focused on the fact that the district attorney cannot harass the president and divert his time and energy. Francisco argued that a public prosecutor must demonstrate that the evidence is “directly relevant” to issues that should be central to the process and that the public prosecutor must identify “specific debit decisions that cannot be made responsibly without access to materials”.
Carey R. Dunne, general counsel to the New York County district attorney, argued that Trump and the Justice Department’s arguments should fail because the president has no type of categorical immunity, especially when the summons are addressed to a third for documents not subject to the executive privilege which has no relation to the official functions of the president.
“The precedents of this court make clear that immunity under a president’s Article II extends only to official records,” Dunne told the judges.
Case decisions should be made in early summer.
This story is breaking and will be updated.