The Daily - The Constitutional Clash on a Conference Call

Episode Date: May 13, 2020

On Tuesday, the Supreme Court debated the nature of presidential power in two sets of cases regarding demands for President Trump’s personal records: one about his taxes, the other about claims that during his campaign he paid to silence women with whom he previously had affairs. This is what a constitutional clash on a conference call sounded like. Guest: Adam Liptak, who covers the Supreme Court for The New York Times. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: Based on the court’s questions, our reporter thinks the two sets of cases may well be decided in different ways. Here are the full arguments, if you want to listen in.Aimee Stephens, the transgender plaintiff in another Supreme Court case who we spoke with on the show in November, has died of complications related to kidney failure. She was 59.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. In two historic cases on Tuesday, the Supreme Court debated the nature of presidential power and who is entitled to Donald Trump's personal records. My colleague, Adam Liptak, listened in. It's Wednesday, May 13th.

Hello, Michael. Adam in a t-shirt? Good Lord! What next? What has the pandemic wrought? If I went to court, I'd be wearing a suit. Of course, of course. But like the justices themselves, you're wearing God knows what. I have the distinct suspicion that there were no robes on the justices today. Adam, set the scene for us on Tuesday at the Supreme Court. I'm not even sure it was at the Supreme Court, but set the scene.

The court has been hearing arguments by telephone conference call, which is a new experiment. This is only the second week of it. This was the fifth time they did it. So at 10 o'clock in the morning, I dialed in. The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. I listened to the Marshal of the Court announce, oh, yeah, oh, yeah, oh, yeah, oh, yeah. And then she usually has a script admonishing people to draw near. Supreme Court of the United States are admonished to give their attention, for the court is now sitting. God save the United States and this honorable court.

But she omitted that from the script because there's nothing to draw near to. We were just listening in on a telephone conference call. Now, at the same time, this was quite a radical departure for the court because there was live audio. Right. Which everyone in the country could listen to in real time. Right. Usually we have to wait days to get that audio. Yeah. Typically comes out the Friday after the arguments, which happened on Monday, Tuesday, Wednesday. So if we were still living in the pre-pandemic world, they would have not released audio till Friday. And that allowed us to listen into two cases,

both involving subpoenas to President Trump, one from congressional committees, the other from prosecutors in Manhattan, both seeking his tax returns and all kinds of records concerning his business affairs. And that clash gave the public an opportunity in real time to see the justices in action. Okay, tell us about the first of these two cases. What's the background? The first case we will argue today is case 19-715, Donald Trump versus Mazars, USA.

The first case concerns three different sets of subpoenas from House committees, the House of Representatives, of course, controlled by Democrats, seeking a variety of business records about President Trump, his children, his dealings with his bank, his accountants, his tax returns, you know, large troves of information that the president is fighting hard to protect. And what was the original rationale from these congressional committees in seeking these very sensitive documents? They say they have oversight responsibilities and they say that gathering this information will allow them to propose legislation on things like conflicts of interest. Mr. Strawbridge. Mr. Chief Justice, and may it please the court. So how do the oral arguments unfold? Well, the first thing that happens,

and this is also a recent innovation, the lawyers are given a couple of minutes of uninterrupted time to lay out their case. The subpoenas at issue here are unprecedented in every sense. Before these cases, no court had ever upheld the use of Congress's subpoena power to demand the personal records of a sitting president. So President Trump's lawyer in the House subpoenas case, Patrick Strawbridge, starts by saying that these are unprecedented subpoenas and the court should block them. The rule that the court applies here will affect not only this president, but the presidency itself. The court should deny the committees the blank check they seek

and reverse the decisions below. His argument is that there's no link between congressional responsibilities and what is being sought here. The president's personal papers are not related to anything having to do with the workings of government. And to empower the committees to simply declare him a useful case study is to open the door to all sorts of oppressive requests. That, sure, Congress has some power to investigate in order to enact wise legislation. But that this was partisan harassment, that they don't need President Trump's tax records to make tax law. They wouldn't need his medical records to decide how to reform the Affordable Care Act,

and that this is a kind of dragnet fishing expedition. The threat in this case of subpoenaing decades worth of papers, not only of the president, but of the president's family members, of his children, of his grandchildren, as the House has done in this case, poses an obvious problem with respect to harassment and infringement upon the ability of the executive to discharge his duties. from Trump's lawyer is that the idea that these documents are needed for legislative affairs and legislative production is basically a fancy cover for just wanting embarrassing documents by the president. That's the argument, yeah. And what is the response from the justices? Well, the justices respond one by one in this new way of questioning. And the justices ask a couple of questions each in order of seniority. Justice Ginsburg. Counsel, in so many of these prior cases, there was a cooperation. For example, tax returns. Every president voluntarily turned over his tax returns. The liberal justices are mostly skeptical of the president's argument.

And they point out that for most of our history, when there have been these kinds of clashes, the Congress and the president have worked things out, have found a way to accommodate one another. The president would turn over some but not all information. And Justice Elena Kagan says that what the president is asking for here. What it seems to me you're asking us to do is to throw a 10 ton weight on the scales between the president and Congress. And avoid that kind of accommodation. And some of the subpoenas that Congress through history as far back as 1792 have asked for personal papers of the president while being president. Justice Sonia Sotomayor points out that there have been congressional subpoenas throughout our history, going back as far as Thomas Jefferson.

This, she says, is different. This is easier. We're asking for his personal returns before he became president. insurance before he became president. She's saying that the current case doesn't even ask for the documents of the official duties of a sitting president. This is old news. This is what the president as a private citizen did. So that's the liberal justices who seem to be skeptical of the president's arguments. What are the conservative justices getting at in their questioning? Thank you, Counselor. Justice Thomas? Following up on the chief justice's question, what if it was clear from those statements that you reviewed that their intention was actually to remove the president from office? The conservatives say that there have to be some limits.

We can't live in a world where every committee of Congress can, on a whim, require the custodians of a president's records, his business records, his medical records, to turn them over for no good reason. And there have to be limits. There has to be a connection between legislative responsibilities and why the information is sought. So Justice Kavanaugh, for instance, said. But I think everyone has explored with you that just about everything can be characterized in terms of a subpoena as pertinent to a legislative purpose. That just about all information can somehow be said to be relevant to some piece of legislation. And the question then boils down to how can we both protect the House's interests in obtaining information it needs to legislate, but also protect the presidency? How can the court was sensitive, and not only the conservative side of the court, because Justice Breyer also had some qualms in this area, about whether these very broad, some say dragnet subpoenas, go too far in what could be said to be harassment of the president.

And what about the lawyer for Congress, for the people seeking these records? What is his argument for the legitimacy of these records? What is his argument for the legitimacy of these subpoenas? Mr. Letter? Yes, Mr. Chief Justice, and may it please the court. So Doug Letter, the lawyer for the House, the House's general counsel, says that they've laid out in great detail why they need these records. They say they're investigating, for instance, President Trump's foreign entanglements that might shed light on election interference. There's an obvious need to focus on the president's financial records to determine if the president is subject to foreign leverage. They say that the president's business records

and tax records could inform what kind of conflicts of interest legislation the House might want to propose. Do we need better laws about conflicts of interest? Do we need better laws about, for example, a president dealing in contracts with government agencies? And they say that they have general oversight responsibilities over the executive, including the president. So at this point, there seem to be two debates going on. One argues that historical patterns show that these requests have happened all the time and presidents have handed over these documents. The other is that Congress needs to really show that there's a legislative purpose to have these documents. there's a legislative purpose to have these documents. And I wonder if either of those questions is resolved and what they tell us about the nature of the president's power versus Congress's. So I don't think we had anything like a resolution of the question. And I think there

are multiple outcomes that are possible in the House subpoenas case. but it does illustrate just how important these questions are, because it's quite rare for the Supreme Court to weigh in on the responsibilities, duties of the other two branches. So this is a big separation of powers case where on the one hand, you have Congress saying we need this information to do our job job to make laws and move society forward. And on the other hand, you have the president who says, I'm the head of a branch of the federal government, and I can't be made to cooperate in handing over all kinds of sensitive material from my private business affairs for what looks to me to be like a partisan witch hunt. And from what you could gather during these oral arguments, how eager or uneager are these justices to resolve that major question between those two branches of our

government? You know, some are more eager than others, but the court as a whole didn't seem to coalesce around any particular theory and may be looking for some kind of exit ramp. A likely scenario could be for the court to send it back down to the lower courts to say, we're not sure who's right, but we think you lower courts were too sympathetic to Congress. Why don't you have another cut at this using a stricter standard about whether Congress really needs these records? Kicking it down to a lower court would be pretty anticlimactic for a major constitutional clash between Congress and the executive. Yes, speaking only as a journalist, that's not my preferred outcome.

But whatever happens on the House subpoenas, there's a second case also argued on Tuesday, and there the coalitions look quite different. We'll be right back. We'll hear argument next in case 19-635, Donald Trump versus Cyrus Vance. So Adam, tell us about this second case that was heard by the justices via conference call on Tuesday. Well, they concern the same kinds of documents, but the subpoena comes from a different source. It comes from the Manhattan DA, Cyrus Vance Jr., which is conducting a criminal inquiry. And it's looking into the hush money payments that President Trump, through his lawyer and fixer Michael Cohen,

paid to two women who said they had affairs with him, affairs he denies. It's a more straightforward case. And why is it more straightforward than a congressional subpoena? There's not a lot of precedent on congressional subpoenas, and particularly congressional subpoenas to the president. But there are leading precedents on criminal inquiries and civil lawsuits seeking information from the president. I feel like you have mentioned those precedent cases in the past and that they include, correct me if I'm wrong, President Clinton and President Nixon. That's right. And so in two cases, the Supreme Court, both of them unanimously, ruled against presidents seeking to withhold information. And in many ways, those cases were more intrusive than what was at issue here. President Nixon was required to turn over oval

office tapes about his official conduct. President Clinton was made to sit for a deposition in a sexual harassment lawsuit brought by Paula Jones. Here, the records sought are in the hands of third parties and don't seem to impose anything like the same kind of burden as those other two cases. And the third party in the Trump case would be an accounting firm, for example. That's right. Yeah. So how do the oral arguments unfold in this case? Mr. Sekulow. Thank you, Mr. Chief Justice, and may it please the court. The president's lawyer, Jay Sekulow, makes a very broad argument. This court has long recognized that the president is not to be treated as an ordinary citizen.

He has responsibilities. He is himself a branch of government. He is the only individual that is a branch of government in our federal system. He says that the president enjoys temporary immunity from even being investigated. Our position is that the Constitution itself, both in structure and text, supports the position that the president would be temporarily immune from this activity from a state proceeding while he is the president of the United States. And Justice Thomas, the court's most conservative member, seems unconvinced. Yes, I'm interested in whether or not you can point us to some express language at the founding or during the ratification process that provides for this immunity.

Asking Sekulow where that immunity appears in the Constitution. And what is Sekulow's answer? Well, there's a couple. Sekulow cites some materials from the founding era. There was a colloquy between Vice President, ultimately Vice President Adams and Senator Ellsworth, where they talked about process against the president. And they took the position that any process against the president would be constitutionally problematic. But the concern.

But they don't seem to get him very far down the road. Justice Ginsburg. So the more liberal justices really have no patience for Sekulow's arguments. But they don't seem to get him very far down the road. So the more liberal justices really have no patience for Sekulow's arguments. We have said in the grand jury context that the public has a right to every man's evidence. Is it your position that the grand jury right every man's evidence exclusive of the president? Justice Ginsburg, it's not that it excludes the president. The president is not to be treated as an ordinary citizen. And this is a temporary immunity. This is for while the president's in office.

And we think that. OK, so that argument does not seem to be succeeding. So what other defenses is Sekulow making here? Well, the fallback argument is that you should apply a really strict standard to subpoenas directed at the president's records. And that you should only be able to do this if the information can't be obtained any other way, if it's critical to your decision about whether you're going to charge the president or someone else with a crime. So that backup argument is almost certainly the ground on which the Supreme Court will decide the case, not the absolute immunity argument.

The decision would allow any DA to harass, distract, and interfere with the sitting president. It subjects the president to local prejudice that can influence prosecutorial decisions. I listened to this hearing, and I recall Sekulow basically saying, if we're not careful, every local prosecutor in the country might start coming at the president of an opposite party, and that would be a nightmare. You can't just look at the one subpoena. It is the potential for 2,300 DAs, or just 1% of them, 23 DAs, issuing process against the president. But the concern... Right. But we do have some evidence that it hasn't happened yet. The president has been in office for three years, and this is the one grand jury subpoena of this kind that I know of.

And that local prosecutor in Nebraska would need to have some kind of jurisdiction over the president. But the Trump organization was not headquartered in Nebraska, it was headquartered in Manhattan. So you're saying almost by definition, there would be very few local prosecutors with grounds to bring a case that involves a subpoena of the president. with grounds to bring a case that involves a subpoena of the president. Right. But Sekulow says that the president's time is really valuable and we shouldn't lightly impinge on it. To require the president to have to respond to each and every state district attorney that would like... Well, he would hire you and he'd hire a lawyer to list what the burdens are. No, he would hire you, and he'd hire a lawyer to list what the burdens are.

That wouldn't take a lot of time. And then he wouldn't be burdened because you'd go in and say what the burdens are. And if you're right, you win that case. They are saying the other side, there are no burdens here. You say there are. So send it back and let them figure out what they are. I think doing that establishes the problem with an analysis, a case-by-case analysis. For instance, in this very case, in this subpoena found on page 118A and 19 of the petition appendix,

there's a list of documents that are extensive. You would have to meet with the President of the United States. I mean, could you imagine just for a moment, Justice Breyer, that I, and you said, let's assume the President were to hire me, that I'm going to call the president of the United States today and say, I know you're handling a pandemic right now for the United States. But I need to spend a couple of two to three hours with you going over a subpoena of documents that are wanted by here, the New York County district attorney. I know you're busy. the New York County District Attorney. I know you're busy. So he's now making a very practical argument,

not so much a constitutional one, that if the president is required to answer subpoenas from a prosecutor in Manhattan, that that could take up a lot of his time. Yeah, so it's both a practical and a constitutional argument. The president, as the head of the executive branch, should deserve some protection so that his time is not wasted on nonsense. But the Bill Clinton case in which he was made to sit for a deposition certainly suggests that

some impingement on the president's time is allowed where the justice system can't work otherwise. Justice Gorsuch makes pretty much this exact point. How is this more burdensome, though, than what took place in Clinton v. Jones? I guess I'm not sure I understand. Well, I mean, there's a big distinction between a defendant in a civil case and a principal in a criminal case here by the state district. Let me stop you there. Yes, they sought the deposition of the president while he was serving. Here, they're seeking records from third parties.

So I'm hearing a lot of skepticism from all the justices to these arguments. It doesn't seem like the lawyer for Cy Vance in Manhattan had a ton of work to do. But what was his argument? He said, yes, we recognize the president has important duties. The other principle is that under our constitution, when a president acts as a private individual, he or she has responsibilities like every other citizen, including compliance with legal process. But it's also true that no person is above the law, and you balance these things out, and a focused subpoena directed to not the president

himself, but to his accountants in a legitimate criminal inquiry is appropriate. And that message seemed to resonate with many of the justices. Thank you, Mr. Chief Justice. Thank you, counsel. The case is submitted. It sounds like the court is leaning towards a ruling in this case where Cy Vance, the Manhattan District Attorney, will likely get the records he's seeking from the president. I think a split decision, Michael, is fairly likely. So that Trump loses the Manhattan DA case, wins or at least gets a timeout in the House subpoenas case. And that has implications because, interestingly, if the Manhattan DA wins, it's a grand jury subpoena. It goes to a grand jury. Grand juries are secret.

So it could be that although Trump has to turn over the records, they'll be shielded from public view even so. And in that case you just outlined, Adam, the president's tax records would remain secret. Yes, at least in the short term, yeah. Adam, on a slightly more practical note, it occurs to me that the justices are going to be ruling in both of these cases at the end of their term. Typically, it's June, July, which happens to be the height of the presidential campaign. And the presidential campaign involves the person at the center of these two cases, President Trump. If they side against the president, that would mean public release of

pretty embarrassing documents. If they side for him, it means those documents are largely going to be shielded. I have to imagine the justices understand the context in which they're going to be making these rulings. Oh, I think they're well aware of it, and they might have some reason to want to duck the issue in order not to be playing a role in the presidential election. I also think the court will be sensitive to charges that it's acting in a partisan way. So it might like to have a split decision in which Trump wins one and loses one. And there are ways in which you could do that

and send a message about the independence of the court and hand Trump a loss in the grand jury case, but does not deliver to the American public information that some voters would like to have in deciding whether to vote for or against President Trump. Hmm. It's a really, potentially very interesting outcome. Yeah, yeah. It's one of many very interesting outcome. Yeah, yeah. It's one of many.

One of many. We'll see in June or July how right these predictions prove to be. Well, we really do enjoy holding you accountable for these predictions, so we will do that. Well, you know what I hope to be? Right. Well, Adam, thank you very much. Thank you, Michael. We'll be right back.

Here's what else you need to know today. So I just like to hear your honest opinion. Do we have the coronavirus contained? Senator, thank you for the question. Right now, it depends on what you mean by containment. If you think that we have it completely under control, we don't. During a Senate hearing on Tuesday, two of the federal government's top health officials painted a grim picture of the months ahead, warning that the U.S. has not contained the pandemic and that reopening the country too quickly could lead to a new wave of infections. We do not respond in an adequate way when the fall comes, given that it is without a doubt

that the infections will be in the community and we run the risk of having a resurgence. that will be in the community, then we run the risk of having a resurgence. The two men, Dr. Anthony Fauci and Robert Redfield of the CDC, offered a far bleaker diagnosis than President Trump, who has called for a swift reopening and has predicted a quick victory over the virus. So I think we ought to have a little bit of humility in our belief that we know what's best for the virus. So I think we ought to have a little bit of humility in our belief that we know what's

best for the economy. And as much as I respect you, Dr. Fauci, I don't think you're the end all. I don't think you're the one person that gets to make a decision. During the hearing, Republican Senator Rand Paul of Kentucky pressed Fauci on why the country should trust his judgment. I have never made myself out to be the end-all and only voice in this. I'm a scientist, a physician, and a public health official. I give advice according to the best scientific evidence. I don't give advice about economic things.

I don't give advice about anything other than public health. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.