The justices are hearing arguments by telephone Tuesday in a pivotal legal fight that could affect the presidential campaign, even with the coronavirus outbreak and the resulting economic fallout. Rulings against the president could result in the quick release of personal financial information that Trump has sought strenuously to keep private.
The justices have been hearing cases by phone this month in an effort to help slow the spread of the novel coronavirus. Six of the nine Supreme Court justices are over the age of 65. Trump has resisted calls to release his tax returns since before his election in 2016. Now, joined by the Justice Department, he is appealing lower court rulings that determined subpoenas issued by the House of Representatives and the Manhattan district attorney to his longtime accounting firm and two banks for years of tax returns, bank records and other financial documents are valid.
The president is advancing broad arguments to try to stymie House Democrats. In the case involving the criminal investigation launched by District Attorney Cyrus R. Vance Jr., Trump is asserting that while he holds office he cannot even be investigated.
His Supreme Court arguments draw on law review articles that will be very familiar to one member of the court. “At the end of the day, ‘a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,'" Trump's lawyers told the court, quoting from a 2009 article by now-Justice Brett Kavanaugh.
The Trump-appointed Kavanaugh previously worked on independent counsel Ken Starr's investigation of President Bill Clinton, which led to Clinton's impeachment in 1998. He was acquitted by the Senate the following year.
Kavanaugh is quoted five times in Trump's main Supreme Court brief in the Vance case. Justice Neil Gorsuch is Trump's other high-court appointee. Trump has so far lost at every step, but the records have not been turned over pending a final court ruling.
The case about congressional subpoenas has significant implications regarding a president’s power to refuse a formal request from Congress. In a separate fight at the federal appeals court in Washington, D.C., over a congressional demand for the testimony of former White House counsel Don McGahn, the administration is making equally broad arguments that the president's close advisers are “absolutely immune" from having to appear.
The House argues that Congress has very board subpoena powers and that courts should be reluctant to interfere with them. “Many momentous separation-of-powers disputes have come before this Court," the House wrote in its primary Supreme Court brief. “This dispute ... is not one of them."
In two earlier cases over presidential power, the justices acted unanimously in requiring President Richard Nixon to turn over White House tapes to the Watergate special prosecutor and in allowing a sexual harassment lawsuit against Clinton to go forward.
In those cases, three Nixon appointees and two Clinton appointees, respectively, voted against the president who chose them for the high court. A fourth Nixon appointee, William Rehnquist, sat out the tapes case because he had worked closely as a Justice Department official with some of the Watergate conspirators whose upcoming trial spurred the subpoena for the Oval Office recordings.
The subpoenas are not directed at Trump himself. Instead, House committees want records from Deutsche Bank and Capital One, as well as the Mazars USA accounting firm. Mazars also is the recipient of Vance’s subpoena.
Appellate courts in Washington, D.C., and New York brushed aside the president's arguments in decisions that focused on the fact that the subpoenas were addressed to third parties asking for records of Trump’s business and financial dealings as a private citizen, not as president.
Two congressional committees subpoenaed the bank documents as part their investigations into Trump and his businesses. Deutsche Bank has been one for the few banks willing to lend to Trump after a series of corporate bankruptcies and defaults starting in the early 1990s.
Vance and the House Oversight and Reform Committee sought records from Mazars concerning Trump and his businesses based on payments that Trump’s former personal lawyer, Michael Cohen, arranged to keep two women from airing their claims of affairs with Trump during the 2016 presidential race.