Supreme Court hears arguments on Trump finances

Justices heard oral arguments for more than three hours about blockbuster cases concerning President Trump's bid to shield his financial records.

Due to the coronavirus pandemic, justices met via teleconference.

The first case (Donald J. Trump et al v. Mazars, Donald J. Trump v. Deutsche Bank) involved the House’s effort to obtain the financial documents and triggered separation of powers concerns, and the second case (Trump v. Vance) involved a New York prosecutor’s grand jury subpoena for Trump’s tax records.

Here are some of the key moments: 

If the Manhattan grand jury got President Trump’s documents, would they leak? If they did leak, would it hamper the presidency?

These questions became a focus of some of the Supreme Court arguments Tuesday morning, and veered into somewhat surprising territory when Justice Samuel Alito harped on the possibility of grand jury proceedings against Trump leaking to the New York Times. 

Alito even surmised the leaks could come from prosecutors — who could face severe consequences for leaking grand jury information. (Witnesses who appear before a grand jury, however, could speak about what happens inside the secret proceeding, because of their First Amendment rights.)

"I’m not aware of any kind of real pattern or practice of leaking of actual grand jury materials that are covered by Grand Jury secrecy," Dunne responded.

Alito followed up, asking him whether the Manhattan district attorney's office ever receives requests from the media to disclose investigative information. 

"They ask all of the time, your Honor, and the answer is consistently no," Dunne said. He added that comments sources make to reporters off the record are much different than "voluminous tax returns or other sensitive documents" being in the hands of an investigating grand jury. 

The reams of documents, he said, would be covered by secrecy. "I think history supports that view," Dunne added.

Dunne later in the argument compared the stigma of some grand jury investigation details into the President becoming public to the sexual harassment accusation against President Bill Clinton. Would it really be more burdensome, Dunne pointed out. 

True burdens would be forcing the President to show up at particular times and places, say, to testify, Dunne argued.

President Trump’s attorney argued that if the Supreme Court allows the grand jury subpoena for Trump’s financial records it would “weaponize” 2,300 local district attorneys, many of whom are elected officials, to go after a president.

Carey Dunne, the general counsel of the Manhattan District Attorney’s office, sought to shoot that down, stating, “There’s really no empirical basis in history for this, this apocryphal prediction” of a “parade of horribles” laid out by Trump’s lawyer. 

“As a practical matter this notion that there are 2,300 prosecutors out there writing with subpoena pads open, there’s just no basis to think that an army of local prosecutors like that would even have jurisdiction over a president especially for private conduct,” Dunne said.

Dunne went on to add, “Here, New York City, of course, has a particular connection to the Trump Organization and its financial transactions because it’s headquartered here. It’s not likely that more than one or many states much less 2,300 counties, whatever had that connection to a president’s private conduct.”

The New York County District Attorney is investigating possible illegal tax and financial transactions that have been raised in news reports concerning actions of the New York-based Trump Organization and its executives.

How many local district attorneys could whip out their grand jury pads? It’s unclear. Trump owns business in a handful of states and counties, including properties and golf courses in Florida, Illinois, California, Virginia and New Jersey.

A top lawyer from the Manhattan District Attorney’s office implied Tuesday that the Justice Department is trying to impede an ongoing state investigation into the Trump Organization.

Dunne added: “It completely upends the way that a grand jury process is supposed to work.”

Some context: New York prosecutors are currently investigating whether Trump and his company violated any state laws, before Trump became president, by paying hush-money to women who alleged affairs with Trump. Trump denies the affairs, though he acknowledges making the payments.

On the flip side, Trump’s lawyers have argued that the grand jury investigation in New York places a burden on Trump. They say the subpoenas would distract Trump from his official duties, and would force him to spend time with lawyers while he should be running the country.

This high-stakes case forces the Supreme Court to balance the longstanding tradition of shielding the sitting president from federal indictments with the desire of state prosecutors in New York to investigate credible accusations of financial wrongdoing by Trump’s company.

Today’s Supreme Court arguments – more than three hours – are historic both in content but the fact they’re being aired live because of the coronavirus pandemic. 

If the court weren’t holding arguments via telephone, it is extraordinarily unlikely Chief Justice John Roberts would have allowed a live broadcast. In fact, it’s been very rare for the court to even release audio on the same day a case is heard. Current practice is to put up tape on Friday afternoons, something useful to historians and law professors but not for the general public.

Something that would be very useful for the public: Television. There were several moments today where it’d be great to see how justices and attorneys responded. When Trump attorney Jay Sekulow suggested “temporary presidential immunity,” for instance. Or Justice Clarence Thomas, who has taken advantage of the one-justice-speaking-at-a-time format, saying in no uncertain terms that it’s obvious the whole issue is about Trump, not the presidency as a whole. Or Justice Ruth Bader Ginsburg on pretty much everything. (Roberts, meanwhile, has a good poker face.)

Don’t hold your breath, however. TV cameras have never been allowed in the courtroom. And the court’s just entered the radio age this month.

In the second case concerning a New York Grand jury subpoena, the justices returned again and again to precedents concerning President Nixon and President Clinton that were heavily relied upon by the lower courts who ruled against President Trump.

Chief Justice John Roberts and others asked a lawyer for Trump about the fact that in Clinton v. Jones, the court allowed a private citizen to bring a civil suit against a sitting president.

“You focus on the distraction to the President” in this case, Roberts told a lawyer for Trump, but he said in the Clinton case, “we were not persuaded that the distraction in that case meant that discovery could not proceed.”

Justice Neil Gorsuch also emphasized that in the Clinton case, the court allowed the case to go forward, but in the case at hand, all that was being sought was records from third parties.

Justice Sonia Sotomayor stressed that Cyrus Vance was not targeting official acts by the President.

“You are asking for a broader immunity than anyone else gets,” she said.

And when a lawyer for the President emphasized that the President is different than an ordinary litigant, Justice Elena Kagan shot back “the President isn’t above the law.’

Kagan and Sotomayor also seemed to reject a standard put forward by the Department of Justice where a New York prosecutor would have to reach a higher standard when it comes to a subpoena sent to the President.

Justice Stephen Breyer challenged Trump attorney Jay Sekulow’s argument that complying with a New York state grand jury subpoena would be too burdensome for the President.

Breyer noted that the President would hire an attorney to compile the documents and review the request.

Sekulow disagreed, noting that he would still have to confer with the President, who is pretty busy in ordinary times, but especially at the moment with the coronavirus pandemic.

The President's lawyers on Tuesday underlined the idea that investigations and the prosecution of President Trump while in office could interfere with him leading the country.

Temporary presidential immunity, in the way the President's lawyers describe it, would mean that Trump (or whomever is president at the time) couldn't be investigated or prosecuted while holding the office of President. No subpoenas, no testimony, no indictments, if investigators sought those.

But the idea also means that a former President could face legal consequences for his or her personal behavior after leaving office. 

Under federal law, most crimes have a five-year window in which they can be prosecuted. This means that if a President were to serve for one term, behavior from the campaign onward could still be fair game for a criminal case when the President leaves office. 

Special counsel Robert Mueller described this idea in his report, where he documented several situations when Trump tried to obstruct the Russia investigation.

"We recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct," Mueller wrote in his report. 

If the President wins a second term, under Trump's legal theory, he'd outlast the federal statute limitations with an eight year term. The Manhattan district attorney could also be thwarted by the presidency running out their clock.

They'd said it before, but President Trump's attorney put it more bluntly than ever: 

That is, Trump can't be investigated or prosecuted by anyone, anywhere while he's President. 

"Criminal process targeting the President" violates the Constitution, Sekulow said.

Justice Elena Kagan called out the argument, which Sekulow has been steadfast in since he began arguing today.

"You are asking for broader immunity" than anyone else, Justice Sonia Sotomayor asked him. 

"He's the President," Sekulow responded.

Kagan had a retort: "The President isn't above the law."

Some context: The theory has popped up over and over again in the last three years —while special counsel Robert Mueller considered subpoenaing Trump; when the Justice Department weighed the evidence that Trump obstructed the Russia investigation; when the Senate took up Trump's impeachment proceeding; and now with the New York district attorney's investigation into him.