The Supreme Court can finally tell Trump that it is not above the law

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The court heard oral arguments about a group of highly consequential Presidential immunity cases related to quotes filed by various House committees and the Manhattan district attorney’s office to obtain Donald Trump’s tax returns. These cases are not only critical to the investigation into President Trump, but are carefully followed up on what the decisions will mean for the parameters of executive power for this and future presidents.
The arguments continued in two phases: one concerned the consolidated cases relating to the Chamber’s citations issued in relation to the power of the Chamber to investigate for legislative purposes; the other concerned the Manhattan District Attorney’s warrant, issued by a large jury in connection with a criminal investigation into payments to women who supported business with Trump and possible violations of tax law. In all outstanding matters, the President had appealed against the lower court judgments that held the quotes valid.

It is always a challenge to read tea leaves from the oral discussion. But there were some illuminating exchanges and, in important ways, many of the judges seemed to be on the same page, providing at least some clues as to how they are likely to rule.

Trump v. Vance

The judges appeared to be united in important ways in the event that Trump sued Manhattan DA Cyrus Vance from imposing a subpoena on the President’s accountants and businesses for tax returns and other financial documents for a period of eight years earlier. of the 2016 elections.

Trump’s legal team, represented by Jay Sekulow, moved on the fences. Sekulow argued, as he had done in the losing efforts of the President in the lower courts, that Trump has the right to “temporary absolute presidential immunity” from the quotes in question along with all other forms of criminal trial, even if the case is not directed to the President, but to other parties, and even if they are behaviors that have nothing to do with being the President.
The judges did not appear to buy what Sekulow was selling. Even the strongest defenders of the President were skeptical, with all conservative judges question it closely Sekulow on his extreme position.

The Justice Department, represented by solicitor Noel Francisco, also considered. He did not claim that Trump is absolutely immune to the trial (although Francisco pointed out on the point when asked, saying it is too early to consider such a complaint), but proposed that – before issuing his citation in jurisprudence – the district attorney should be forced to go to the federal court to make an enhanced demonstration of the evidence which demonstrates, among other things, a “critical need” for the information sought in order to make decisions about the allegations and inability to obtain information from other sources.

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Carey Dunne of the Manhattan District Attorney’s Office countered that although a case-specific investigation is appropriate to ensure that the summons do not improperly entail the exercise of her duties under Article II of the Constitution, the standard offered by the Justice Department is too strict, too burdensome for local prosecutors and their investigations, and would harm the jury trial.

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After appearing to dismiss the President’s extreme position, the judges analyzed what a viable standard could be, carefully investigating the arguments of the Manhattan district attorney and the Department of Justice. They wondered if the precedent of the Court in Clinton v. Jones were to be applied in this case. In the Clinton judgment, the Court stated that President Bill Clinton was subject to a subpoena for testimony in a civil lawsuit filed by Paula Jones, who claimed that Clinton had sexually harassed her while he was governor of Arkansas (claims he denied), despite the burden that the preparation and delivery of those testimonies would place on the President. Most judges noted and asked the parties that the criminal sanctions in Trump’s case are likely to be more serious, but the burden imposed by the summons is much less. And they asked if, as Sekulow and Francisco obscurely suggested, there is a danger that with thousands of local DAs in the country the President may be overwhelmed by such quotes issued for political purposes, or if that concern is overstated in light of the number of civil cases that could theoretically go on under the previous Clinton v. Jones.

Ultimately, I expect the judges to reject, perhaps even unanimously, Trump’s claim that he is absolutely immune from the trial and therefore above the law. It remains to be seen what standard will be adopted and whether the ruling will require further litigation from a lower court before the district attorney’s office collects the cited documents. But, especially considering the facts of this case, including that the district attorney’s office acted in good faith and not for any political reason, I expect that at some point the attorney will be allowed to proceed with his case without having to wait for Trump to leave the office.

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Quotes from the House Committee

The arguments on the Chamber’s quotations revealed more significant divisions among the judges.

The summons came from two committees that sought documents on silent payments; the way Trump had assessed his assets on financial statements and other documents in relation to possible violations of money laundering and other laws. Each of these committees said that their investigations were aimed at potential legislation on these issues.

The main issue explored during the arguments was the amount of power that Congress must engage in an investigation for legislative purposes and where there might be limits to that power.

Again, President Trump’s legal team, this time represented by Patrick Strawbridge, took an extreme stance, arguing that Congress has very little power to investigate the president as part of its legislative function because the presidency is an office created separately under of the Constitution. Strawbridge has also repeatedly said that the House committees have acted politically in seeking the President’s documents. And at the very least, he argued, the House should be able to meet the “needs demonstrated” standard from the previous Supreme Court precedent on executive privilege.

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The Justice Department, this time represented by Deputy Attorney General Jeffrey Wall, also claimed that the Chamber did not show the need for the information they sought. House attorney Doug Letter, however, argued that the Chamber summons did what was necessary to issue the subpoenas and that the arguments cited by the consultant for Trump and DOJ missed the mark because they were based on cases involving the executive privilege, which all agreed parties do not apply here.

The questions of the judges explored these problems, with at least some of the President’s reliable supporters, such as judges Clarence Thomas, Samuel Alito and Neil Gorsuch, expressing considerable skepticism about the reasons behind the citations, underlining where the information requested seemed inconsistent with reason for the summons and to question the breadth of the Chamber’s point of view on its authority to ask the President for information for legislative purposes. Even the judges who seemed most acceptable in theory of the Chamber’s right to investigate this way had questions about the limits of the Chamber’s power and expressed some frustration when the Chamber’s consultant Doug Letter could not provide an example of when a summons he could cross the line. For example, many judges wanted to know if the Chamber could ask for the President’s medical records in relation to consideration of general health legislation or income information in relation to consideration of a reduction in fees for the middle class, suggesting that the quotes would be be problematic.

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Some judges, such as John Roberts, Stephen Breyer and Brett Kavanaugh, were difficult to read, at times they seemed to support Congress’ right to obtain information that imposed a certain burden on the President, but also expressed concern about how far Congress could go without any significant type of control. The judges were also clearly thinking about the separation of powers and the difficult position the courts find themselves when dealing with disputes between the other two branches.

In short, the House cases raise many thorny issues that did not seem to be resolved during today’s topic. Also, I couldn’t help thinking that the Chamber could have spared some of the difficult questions (and potentially potentially an unfavorable result) if they had first refined their quotes more accurately and specifically to carefully match the information. sought for the legislative purpose described; the arguments revealed weaknesses in this regard which the House attorney had difficulty coping with.

For these reasons, the citation case is likely to divide the judges more evenly than in the Trump v. Case. Vance, in which the Court should speak clearly to reject the President’s request for absolute immunity. The president is not above the law. These cases are now being filed, so the Supreme Court finally has its opportunity to say so.

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