The NPR Politics Podcast - Absolute Immunity? Presidents Don't Have It.

Episode Date: July 9, 2020

The U.S. Supreme Court has rejected President Trump's claim that he is "categorically immune" from having his pre-presidential financial records investigated by a New York grand jury. But in a second decision on the House's request for similar information, the court questioned the breadth of congressional authority. Americans, almost certainly, will not see the president's taxes before Election Day.This episode: campaign correspondent Scott Detrow, White House reporter Ayesha Rascoe, and national justice correspondent Carrie Johnson.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Melanie and Charlotte. I thought everyone could do with a moment of tranquility. This podcast was recorded on... It's a 210 Eastern on Thursday, July 9th. Remember, things will have changed by the time you hear this. Everyone be safe and be kind. Here's the show. Oh, that's so nice. I appreciate that. I definitely need some tranquility.

Tranquility now. Serenity now. All of it. Hey there, it's the NPR Politics Podcast. I'm Scott Detrow. I cover the presidential campaign. I'm Aisha Roscoe. I cover the White House. And I'm Carrie Johnson, National Justice Correspondent.

Okay, so the U.S. Supreme Court ended its term today with a big decision, ruled 7-2, that a New York prosecutor has the constitutional right to subpoena President Trump's tax returns. A second decision said Congress doesn't have that right, at least in this moment, under these circumstances. So Carrie, let's start with this, though. At a high level, the court found the president of the United States does not have absolute immunity from investigation while in office. to issue a subpoena for President Trump's personal financial records, including almost 10 years of his tax returns, that rejected an argument from Trump's personal lawyers and the Solicitor General of the Justice Department that would have allowed Trump to basically use the White House as a shield for any of those requests for his personal information.

And just to be clear, this is his personal stuff, not any kind of executive privilege-based materials or decision-making that he did in the White House. It's his money stuff. So let's get into these cases individually. They were both decided by 7-2, both opinions written by Chief Justice John Roberts. The first decision, the one that says that presidents aren't blanket immune, it involved the Manhattan District Attorney. Walk us through the other key facts here and key findings. Sure. The Manhattan District Attorney Cyrus Vance had issued a subpoena through a grand jury for almost 10 years of Trump's financial records and tax returns. And they started this investigation

after Michael Cohen, a familiar name, Trump's former personal lawyer, testified to Congress that he had helped pay hush money to women during the 2016 campaign to keep them quiet as Trump was running toward the presidency. That led investigators to wonder what was going on with Trump in the Trump Organization books and records. And so they wanted access to these materials. Today, the Supreme Court said the grand jury is very likely to get them, basically said there's a public interest in fair and effective law enforcement that cuts in favor of access to evidence, even when it's concerning personal records of the President of the United States. But Carrie, they're not likely,

that grand jury is still not likely to get these documents for a while. And when they did, it'll still be private, right? Absolutely. So under grand jury process, all of that material is super secret, and it's against the law to leak any of that stuff. So if you're found leaking, you could be charged with a crime and put in the clink. That said, the majority decision basically said President Trump can still raise some other arguments, basically that these subpoenas are overbroad or there are other problems with them. But the ringing endorsement from this majority ruling is that

the president is not above the law, and it's quite likely this grand jury is going to get those materials, although maybe not before the November election. But the other ruling today with the same majority writer, and I'm right in saying that it was the exact same number of justices voting for it, right? Absolutely. Same lineup. Yeah. What's different here? Because on one hand, I'm seeing this and saying you can and then you can't. And Congress clearly has generally the power to investigate, to oversee. So what was their reasoning in the second case? Scott, I was just amazed as I was reading this second ruling. It's called Mazars after

President Trump's accounting firm. And Chief Justice John Roberts, who wrote the majority again, seemed like he was kind of walking through a minefield. He pointed out that the high court had never been asked to rule on a case like this, which is basically a tug of war or a wrestling match between the Congress and the White House over access to these kinds of materials. And he seemed to really not like it, this clash between rival branches of government, he said. But basically, John Roberts laid out this new test that lawmakers, Congress and congressional committees are going to have to go through to show that they really need some of these kinds of materials. And that might make it harder for Congress in the future to get some of these documents in a timely manner.

I guess that's surprising to me because I feel like so many of the rulings coming out of the Roberts court, especially when they had to do with, you know, the administration issues, boiled down to Congress has power to do things if only it would do them. So here they seem to be saying, rein yourself in a little bit, Congress, or do I have that wrong? Well, you know, Tom Hungar, who had been the general counsel of the House of Representatives and earlier spent a lot of time in the Solicitor General's office, issued a statement today saying he thought this was a major strategy error by the House of Representatives, and it would hurt congressional investigations moving forward. I also heard from Elise Bean, who had been a senior Senate

investigator for many years. She said, now there's a whole bunch of uncertainty about what Congress can get and can't get. And it could help push the president and Congress back to the negotiating table to decide things amongst themselves and leave the Supreme Court out of it, which may be what John Roberts was after to begin with. Ayesha, speaking of the president, how is he reacting to these decisions? He's not happy. You know, he's not happy with the way this, these decisions, you know, came out. He sent like, you know, a flurry of tweets, basically saying that, you know, he was being treated the way no other president's being treated. He said that normally presidents

get deference, but not me in all caps. What you hear from the campaign is what they are saying is President Trump has released a lot of documents about his financial records. And so that this really doesn't matter. And that, you know, his personal lawyer, Jay Sekulow, was saying that they look forward to, you know, raising other constitutional issues at these lower courts to continue to fight this. I think a big question is how President Trump handles this going forward and whether he's going to let it go or whether he's going to continue to talk about it. It seems likely, based on history, that he will continue to kind of gripe about it for a while. Ayesha, the president is frustrated with the court, but it was two of his nominees, Brett Kavanaugh and Neil Gorsuch, who voted against him in that key case. How is that playing with President Trump's supporters, President Trump's allies?

President Trump didn't specifically mention Kavanaugh or Gorsuch, but we know that Trump looks at every, almost everything through a very personal lens. And, you know, he often goes, I did this for you, you owe me some loyalty. So I can't imagine that he is going to be happy that Kavanaugh and Gorsuch went against him on this. There was some talk when Kavanaugh was nominated that part of the reason that he was nominated was because of this idea that he would be more deferential to presidential powers. But that did not help him in this case. All right, we're going to take a quick break. When we come back, we'll talk more about the implications of these rulings, and also what to make about this year's Supreme Court term.

Whenever you face a choice, it helps to think like an economist. And this week on Planet Money Summer School, we'll start off our course in economics with a workout for your brain, how to decide what something truly costs. Listen now to Planet Money from NPR. Okay, we're back. And Kerry, I want to circle back to something you mentioned before a little bit. Ahead of this ruling, there was a lot of talk about how it might fit into these past big Supreme Court moments where the court ruled with unanimous majorities that presidential power is not unlimited. Does this decision keep in line with those cases or break from it? I think it very much keeps in line with those decisions, Scott. The two that I'm most familiar with involve President Nixon and having to turn over some of the tapes that

he made in the Oval Office. That was a unanimous decision from the high court. And then the second was during the Bill Clinton administration, the notion that he would be subject to a civil lawsuit over behavior that occurred before he was president of the United States. In both those cases, unanimous courts ruled that the president is a special person, but he can't get away with having to answer for some conduct. And this opinion in the New York grand jury case, Vance, very much fits in that line. Aisha, a lot of Democrats very much want to see President Trump's tax returns. He was the first presidential nominee in more than a generation to never release

them publicly. How are they reacting to these rulings, especially given the fact that as we've talked about, these tax returns are likely not going to be public anytime soon. They're still taking it as a win. You had a former Vice President Joe Biden. Biden tweeted this video that he had done a while back. And the video basically says, put out your taxes, Trump, or shut up. And, you know, so he's basically challenging Trump. And I think we can expect to see that going forward. More of that from him because Biden, of course, has released his taxes from Speaker of the House Nancy Pelosi. She basically said that, you know, they are going to take the standards that were put forth by the Supreme Court that Congress has to meet to, you know, get information to satisfy their subpoenas, that they feel like they can meet those standards and that they're going to move ahead with trying to get information to satisfy their subpoenas, that they feel like they can meet those standards and that they're going to move ahead with trying to get this information. But like you said,

it's not going to happen before the election. So Carrie, we had talked about this a couple times before with other big rulings, but I feel like today's ruling really underscores this theme of the close of this term of Chief Justice John Roberts really seeming to try to make a political point that the court is not political, and also once again underscoring the importance of the letter of the law. What do you think the takeaway from all of these Roberts rulings is? Yeah, well, you know, he had come out and said in the last couple of years that there are no such thing as Obama judges and Trump judges. And certainly the lineup in today's cases, in particular, with respect to executive power and

congressional oversight, would give some credence to his argument that you can't always predict how a justice is going to vote based on the president who appointed them. But he's got a hard job moving forward, Scott. I mean, he handled some immigrants' rights cases and abortion rights cases this year. He handled a bunch of other cases about civil rights, and he tried to walk a fine and narrow line. At some point, that's going to get harder and harder to do in the future. I certainly know this. He's a guy who's in desperate need of a break right now. So it's a good thing they're on break for the summer. Yeah. Aisha, we've talked so much on the podcast about how the courts are such a big selling point for conservatives for President Trump. You know, he trumpets them all the time. He talks about all

the judges appointed. He talks about Kavanaugh and Gorsuch. Do you think all of these decisions complicate that pitch that he's trying to make to conservatives? I don't think it does. And if it does, not very much. President Trump still has a record that he can point to for appointing so many conservative judges. There were big wins, you know, even just this week on, you know, religious freedom, you know, when it came to contraception and things of that nature. So he does have things that he can point to and that I think conservatives can point to that they have gotten from the judiciary. And I think what they are looking at is a very long term goal of remaking the whole judiciary and that this will come and pay dividends down the line. So I think that's an argument that he still has. And these issues, especially about

the tax returns and stuff like that, was very specific to President Trump and to him as a candidate and not necessarily, I don't think you can really extrapolate that to just a larger conservative ideology. All right, that is a wrap for this Supreme Court term. It is also a wrap for today's podcast. But we will be back tomorrow with our weekly roundup. I'm Scott Detrow. I cover the presidential campaign. I'm Aisha Roscoe. I cover the White House. And I'm Carrie Johnson, National Justice Correspondent. Thank you for listening to the NPR Politics Podcast.