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When the Supreme Court heard arguments about Donald Trump’s tax returns on Tuesday, Justice Sonia Sotomayor told an attorney for the President that “there is a long, long history of conferences seeking records and obtaining them” from the occupants of the Oval Office.
The other two liberals in court, Ruth Bader Ginsburg and Steven Breyer, filed for documents during the Watergate and Whitewater scandals, which occurred under Richard Nixon and Bill Clinton and were unanimously decided against the president in question.
Elena Kagan, like Sotomayor, a person appointed by Obama, told Trump attorney Jay Sekulow that “the fundamental precept of our constitutional order is that the president is not above the law.”
The court is in its second week of remote work due to the coronavirus pandemic. Trump’s attorneys and attorneys for Democrats in Congress and prosecutors in New York presented their arguments over the phone. The world listened.
Trump did not disclose his tax returns during the 2016 election and has not since, despite a promise to do so.
“President Trump is the first to refuse to do that,” said Ginsburg.
All the presidents since Nixon, who was elected in 1968, had released tax information. But there is no legal obligation to do so.
Democrats in Congress are trying to establish whether Trump is violating ethics laws and constitutional guarantees against presidential earnings.
New York Attorney Cyrus Vance Jr wants to find out if the money payments to women who claimed to have relationships with Trump involved illegal business practices.
Trump is asking judges to end tax subpoenas, banks and other financial records seeking information from Deutsche Bank, Capital One and the accounting firm Mazars USA.
Trump’s lawyers, supported by the Justice Department, argue that he should not be so limited by Congress and that he cannot be prosecuted while in office.
Opponents of the president say he is simply not above the law.
The Washington and New York courts of appeal have ruled that the documents must be served. Those courts put aside the president’s general arguments, focusing on the fact that the subpoenas were directed at third parties requesting records of Trump’s business and financial affairs as a private citizen, not as president.
The rulings against Trump could result in the disclosure of damaging information during his re-election campaign.
According to practice, Chief Justice John Roberts spoke first. The other judges asked questions in order of seniority. Neil Gorsuch and Brett Kavanaugh, the two named by Trump for the conservative majority 5-4, were the last.
Roberts asked Trump’s attorney Patrick Strawbridge, “Do you recognize any power in the House to subpoena personal documents from the President?”
Trump’s attorney said it was “difficult to imagine” a situation where that would be warranted.
However, in 1974 the judges unanimously demanded that Nixon turn over the White House tapes to the Watergate special counsel. And in 1997, another unanimous decision allowed a sexual harassment lawsuit to be filed against Clinton.
In those cases, three named by Nixon and two by Clinton, respectively, voted against the president who elected them. Ginsburg and Breyer were named by Clinton.
For the Justice Department, Jeffrey Wall said allowing House subpoenas to lead to presidents being “harassed.”
“The potential to harass and undermine the president … is obvious,” he said. “It’s not too much to ask that before the House delves into the president’s personal life, he somehow explains what laws he is considering and why he needs the president’s documents in particular. The citations here don’t even come close. “
Gorsuch expressed concern about lawmakers who abuse the subpoena process and seek illegal conduct from political rivals.
Speaking to Congressional attorney Douglas Letter, Samuel Alito said: “In his opinion, there is no protection in order to avoid harassment by a president.”
But conservatives in court did not uniformly sympathize with the arguments put forward by Trump’s lawyers.
Kavanaugh asked: “The question … comes down to how we can protect the interest of the House in obtaining the information it needs to legislate, but also protect the presidency. How can the court balance those interests?
Gorsuch questioned why the court would grant Trump immunity in a criminal investigation when he failed to grant Clinton immunity in a sexual harassment lawsuit. In the 1997 case, the plaintiff’s attorneys wanted Clinton questioned, Gorsuch said, while in the Trump case third-party information is sought.
Sekulow replied that criminal cases result in a loss of liberty and are very different from civil trials that could lead to monetary damages.
Alito questioned Sekulow’s claim that a grand jury subpoena cannot be imposed against a sitting president in a case where expecting a president to leave office would undermine criminal prosecution.
Meanwhile, Kagan noted that, when it comes to personal records, “the president is just a man.”
“What I think you are asking us to do,” he told Strawbridge, “is to put a kind of 10-ton weight on the balance between the president and Congress, and essentially make it impossible for Congress to monitor and to carry out its functions. “
There will likely be a bug in a few weeks.
