By Ronn Blitzer, Bill Mears | Fox News
The Supreme Court waded uneasily Tuesday into politically-charged fights over executive accountability as justices held oral arguments in cases dealing with subpoenas of President Trump’s personal tax and financial records.
First up was a constitutional showdown testing the separation of powers between the White House and the federal legislature, as President Trump’s legal team challenged subpoenas from Democrat-led House committees seeking financial records from him and his businesses, including his tax returns.
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“How can we both protect the House interests and obtain information it needs to legislate, but also protect the presidency?” asked Justice Brett Kavanaugh, summarizing the conflict. “How can the court balance those interests?”
House Democrats claim in two cases that have been consolidated to be heard together that they require the president’s personal records — which provide information from before his presidency — so that they can address lending practices by financial institutions, as well as possible Russian money laundering. Trump insists that he is being targeted for political reasons as opposed to a legitimate legislative purpose, and that Congress does not have the right to expose individuals without a valid reason.
Justice Sonia Sotomayor questioned the validity of using the president as a “case study” for potential future legislation. She said this could violate restrictions against exposing for the sake of exposure.
The House Democrats’ general counsel, Douglas Letter, claimed that the president may be subject to foreign pressure, prompting Sotomayor to note that there are already disclosure laws in place to address conflicts of interest.
Justice Neil Gorsuch said that normally law enforcement measures are taken to investigate evidence of a particular crime, not to look into an individual to see if a crime had been committed.
“This has become a pitched battle,” Justice Ruth Bader Ginsburg observed, recognizing Trump’s refusal to publicly release his tax records, as recent presidents have done. Ginsburg added that there have been many more burdensome subpoena requests to presidents than the current ones that were complied with.
She and Justice Elena Kagan noted previous accommodation and cooperation between the two political branches avoided similar impasses.
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“You’re asking us 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,” said Kagan to Justice Department lawyer Jeffrey Wall.
Trump attorney Patrick Strawbridge asserted that subpoenaing decades of records of the president and his family leads to concerns of harassment.
Ginsburg also addressed concerns that Congress could use their power to harass a political rival. Letter stated that precedent from the Clinton v. Jones case says the court is there to keep any political harassment of the president in check.
Justice Clarence Thomas questioned the extent Congress could act on requests for private financial information.
“It could be every grand jury, every prosecutor,” said Thomas. “It gets out of control,” adding the result could be that it “debilitates the president.”
Letter acknowledged that a “massive” number of subpoenas to the president could be a problem if it overloads the White House, but he claimed that there is no danger of this here because the subpoenas are for financial institutions, not him. Trump is not being asked to do anything, he said.
Justice Stephen Breyer pushed back on this argument, stating that it would take “time and effort” for the president to deal with subpoenas, even if they are for third parties, if he wants to “monitor” what documents are involved so he could determine if any privileges apply or figure out how to answer any questions.
Indeed Trump is facing a multitude of subpoenas, even if they were not served on him directly. A House Oversight Committee subpoena for Trump’s accounting firm Mazars USA came after the president’s former attorney Michael Cohen testified his client underreported or overstated figures to the government. Cohen is serving a three-year federal sentence for lying to Congress and financial-related offenses.
The House Intelligence and Financial Services Committees subpoenaed Deutsche Bank and Capital One for financial records of Trump, his adult children and his businesses — which may or may not include his tax returns, as Deutsche Bank has claimed they do not have them. Those records come in the context of a probe of lending practices by major financial institutions, and allegations of Russian money laundering.
Following the arguments in this case, the court heard another case involving subpoenas for the president’s tax returns. That case involves a grand jury subpoena from the Manhattan District Attorney’s office seeking eight years of tax records relating to allegations of hush-money payments to two women claiming prior affairs with Trump, allegations he has denied.
Trump’s position in that case is that he should not be subjected to criminal investigation from a state court while he is a sitting president.
“Criminal process targeting the president is against the Constitution,” Trump’s personal attorney Jay Sekulow said, claiming that under the Supremacy Clause, a state court does not have jurisdiction over the president.
Sotomayor stated that the kind of “broadness of immunity” Sekulow claimed is not found in the Constitution.
Repeated comparisons were made to Clinton v. Jones, where the Supreme Court ruled a sexual harassment civil lawsuit in federal court against President Clinton could go forward.
Justice Neil Gorsuch pressed Trump attorney Jay Sekulow whether that case was fundamentally different from the current criminal state subpoena.
“How do we avoid the conclusion there that the president wasn’t subject to some special immunity, but here, he is?” Gorsuch asked.
Sekulow pointed out that — as the Supreme Court mentioned in a footnote in the Clinton v. Jones case — a state case presents different constitutional issues than a federal case.
An expected ruling in these cases by early July would come just four months before the presidential election.
Fox News’ Shannon Bream contributed to this report.
