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| © SAUL LOEB, AFP via Getty Images Audio feed of Supreme Court oral arguments in two cases on congressional subpoenas of President Donald Trumps financial records, on May 12, 2020. |
By Barbara McQuade, Opinion columnist, USA TODAY
President Donald Trump likes to characterize himself as a counter-puncher. But on Tuesday before the Supreme Court, his lawyers seemed more interested in stalling.
At issue before the court are three lawsuits filed by Trump to prevent his accounting firm and banks from complying with subpoenas seeking Trump’s financial records. In two of the cases argued Tuesday, the subpoenas came from congressional committees. In the third case, a grand jury subpoena was served by the Manhattan District Attorney in a criminal investigation into potential state campaign finance violations.
These cases cover separation of powers, immunity and other significant constitutional issues. But for Trump, who has famously said he will be “fighting all the subpoenas,” the primary goal appears to be delay. Even if the records must ultimately be produced, if Trump can slow walk these cases until after the November election, he can claim a victory. By that point, if the content of the documents became public and contained derogatory or dangerous information, it would be too late to influence his re-election.
President Donald Trump likes to characterize himself as a counter-puncher. But on Tuesday before the Supreme Court, his lawyers seemed more interested in stalling.
At issue before the court are three lawsuits filed by Trump to prevent his accounting firm and banks from complying with subpoenas seeking Trump’s financial records. In two of the cases argued Tuesday, the subpoenas came from congressional committees. In the third case, a grand jury subpoena was served by the Manhattan District Attorney in a criminal investigation into potential state campaign finance violations.
These cases cover separation of powers, immunity and other significant constitutional issues. But for Trump, who has famously said he will be “fighting all the subpoenas,” the primary goal appears to be delay. Even if the records must ultimately be produced, if Trump can slow walk these cases until after the November election, he can claim a victory. By that point, if the content of the documents became public and contained derogatory or dangerous information, it would be too late to influence his re-election.
Cases lost in all lower lower courts
Trump’s lawyers argued that the nation’s highest court should reverse the opinions in all three cases of the courts below, where the president has lost at every stage. Trump argues that permitting third parties to produce the subpoenaed documents would be too distracting to him while he is serving as president, and would subject him to harassment. His lawyers also argued that a sitting president is temporarily immune not only from prosecution, but also from investigation.
During oral argument in a lower court, Trump lawyer William Consovoy conceded that this position led to the remarkable conclusion that if Trump were to shoot someone on Fifth Avenue, he could not be arrested or even investigated for the duration of his presidency. Another Trump lawyer, Jay Sekulow, stepped back from that Tuesday, but only a bit — arguing that while a grand jury could investigate a crime involving the president generally, it could not use a subpoena to get his records.
Justice John Roberts seemed unconvinced there was a distinction, and he was not the only justice expressing skepticism about some of the Trump team's arguments. Justice Ruth Bader Ginsburg pointed to the precedent in cases against Richard Nixon (holding that the president’s executive privilege must yield to a grand jury subpoena in a criminal case, resulting in the release of Oval Office tapes) and Bill Clinton (holding that a sitting president lacks absolute immunity from civil suits regarding events before he took office, resulting in Clinton sitting for a deposition with lawyers for Paula Jones, who had sued him for sexual harassment).
Why was Trump not subject to settled law that the grand jury is entitled to every man’s evidence? she asked. Trump’s lawyer argued that the president is not to be treated as an ordinary citizen. Ginsburg reminded him that no one is above the law.
While Trump’s arguments are weak on their face, one argument that may deliver the delay he seeks is one that the lawyers referred to as a “special need” or a “compelling showing of need.” Under this heightened standard, sought in both cases, the party seeking the documents would have to show a particularized need before a subpoena involving a president’s records could be enforced.
During oral argument in a lower court, Trump lawyer William Consovoy conceded that this position led to the remarkable conclusion that if Trump were to shoot someone on Fifth Avenue, he could not be arrested or even investigated for the duration of his presidency. Another Trump lawyer, Jay Sekulow, stepped back from that Tuesday, but only a bit — arguing that while a grand jury could investigate a crime involving the president generally, it could not use a subpoena to get his records.
Justice John Roberts seemed unconvinced there was a distinction, and he was not the only justice expressing skepticism about some of the Trump team's arguments. Justice Ruth Bader Ginsburg pointed to the precedent in cases against Richard Nixon (holding that the president’s executive privilege must yield to a grand jury subpoena in a criminal case, resulting in the release of Oval Office tapes) and Bill Clinton (holding that a sitting president lacks absolute immunity from civil suits regarding events before he took office, resulting in Clinton sitting for a deposition with lawyers for Paula Jones, who had sued him for sexual harassment).
Why was Trump not subject to settled law that the grand jury is entitled to every man’s evidence? she asked. Trump’s lawyer argued that the president is not to be treated as an ordinary citizen. Ginsburg reminded him that no one is above the law.
While Trump’s arguments are weak on their face, one argument that may deliver the delay he seeks is one that the lawyers referred to as a “special need” or a “compelling showing of need.” Under this heightened standard, sought in both cases, the party seeking the documents would have to show a particularized need before a subpoena involving a president’s records could be enforced.
Trump wants to turn back the calendar
Justices Roberts, Samuel Alito and Brett Kavanaugh seemed to find some appeal to this argument. In the congressional cases, Trump lawyer Patrick Strawbridge argued that such a showing was needed to deny the committees a “blank check” into Trump’s records. In the criminal case, Trump’s lawyers argued that such a showing was needed to protect the president from being harassed by the thousands of prosecutors throughout the country. This standard would require a showing of an “objective" basis and a reasonable probability that subpoenas will reveal "relevant" records before they must be produced.
To satisfy this standard, the committees and the district attorney would have to go back to the drawing board and start over. Trump could challenge the showing anew in the district courts, appeal to the circuit courts of appeals and then go back to the Supreme Court to define the contours of that standard. The prosecutor argued that this delay would have an adverse impact on the criminal investigation as evidence grows stale, the memories of witnesses fade and statutes of limitations expire, but the justices may find some appeal in this middle ground. It allows the investigators to get the records they need, but only after a showing that would limit the scope and reduce the potential harassment and distraction the Trump lawyers describe.
If Trump can get five justices to agree to this theory, the production of the documents could be delayed for many months, perhaps past the November election. And Trump could be saved by the bell.
See more at USA TODAY
To satisfy this standard, the committees and the district attorney would have to go back to the drawing board and start over. Trump could challenge the showing anew in the district courts, appeal to the circuit courts of appeals and then go back to the Supreme Court to define the contours of that standard. The prosecutor argued that this delay would have an adverse impact on the criminal investigation as evidence grows stale, the memories of witnesses fade and statutes of limitations expire, but the justices may find some appeal in this middle ground. It allows the investigators to get the records they need, but only after a showing that would limit the scope and reduce the potential harassment and distraction the Trump lawyers describe.
If Trump can get five justices to agree to this theory, the production of the documents could be delayed for many months, perhaps past the November election. And Trump could be saved by the bell.
See more at USA TODAY
