njbill wrote: ↑Tue May 12, 2020 8:32 pm
I did listen. Thought CSPN did a nice job, except for when they cut away briefly.
First, to the bottom line. Who wins? Beats me, but I’ll give you my guesses, below. I suspect the Court will issue a mixed-bag ruling. There are actually four cases. Three involve subpoenas by House committees (Oversight, Financial Services, and Intelligence). One involves the Manhattan D.A.
I think the House’s Oversight Committee’s case might be the weakest. They subpoenaed Trump’s records after Michael Cohen testified Trump inflated the value of his assets to apply for loans and deflated them to try to reduce his real estate taxes. Trump says this committee is
investigating him and isn’t pursuing a legitimate
legislative purpose. I’ll go way out on a limb and predict Trump wins 5-4 or 6-3 (Breyer). It seemed to me that most of the justices were concerned about the potential for Congress to harass the president. At the same time the Court seems to understand the House has a right to legislate. Of the three House cases, this one seems to be the closest to “investigation” as opposed to “legislation.”
The other two House subpoenas seem to have better chances. The House Financial Services Committee subpoenaed records from Trump's banks, Deutsche Bank and Capital One. Also, the House Intelligence Committee subpoenaed records from Deutsche Bank, claiming it was investigating potential leverage that foreign actors may have over Trump, his family, and his businesses. The president's lawyers argue the subpoenas are extraordinarily broad because they seek more than a decade's worth of documents, cover members of his family who have never held public office, and ask for virtually every financial detail the institutions might have about their private affairs.
It seemed to me that there was some sentiment on the Court that these subpoenas could be in furtherance of a legitimate legislative purpose, which is to amend the laws on financial disclosures, conflicts of interest, or bank fraud. The four liberal justices all seem to be disposed to rule against Trump. Alito and Thomas seem to be for Trump. Not sure about Kav (maybe Trump?). Roberts seemed to be clearly looking for a way to balance the competing interests. I assume he’ll favor a balancing test. Not clear how he’ll strike the balance. Surprisingly to me, Gorsuch seemed to be leaning in the House’s favor. Does that signal how he’ll rule? Who knows? My guess is the Court is going to rule that Congress can subpoena the president’s records, but will impose some sort of heightened need standard (one that would address possible harassment), and then remand to the trial court to determine if the standard has been met. And then the trial court’s decision would wend its way back up to the Supreme Court, but not before the election. So let’s say 6-3 (liberals plus the Chief and Gorsuch) for the House.
Giving the House two wins and one loss would send a signal to Congress that you can subpoena the president for legitimate or quasi-legit
legislative reasons, but you can't
investigate him (absent an impeachment) or harass him. In other words, there are limits on Congress' subpoena power.
In the last case, a NY state grand jury subpoenaed Trump’s records as part of a criminal investigation into the Stormy Daniels payoff. This one seems to be Trump’s weakest case. There seemed to be near unanimous sentiment on the Court favoring grand jury subpoenas to one degree or another. A good bit of discussion seemed to revolve around what standard should be applied to reviewing a state grand jury subpoena directed at a sitting president. The liberals advocated that the same standard used for a regular citizen should apply. Most of the conservatives seemed to push for a “heightened need” standard. I am going to go out on a limb and say the decision will be 9-0 (or maybe 8-1 or 7-2 (Thomas and/or Alito), but that the majority will find a heightened need standard applies. And the Court will remand for the trial court to decide if the standard has been met. Again, the Court would be ducking making a decision before the election. There would be a four liberal justice concurrence saying: (a) the regular standard should apply; and (b) under either standard, the state met its burden.
There was little to no discussion of the “political question” issue applicable to the House cases, which got some publicity a week or two ago when the Court ordered counsel to brief the issue. I’ve read that all sides argued to the Court in their supplemental briefs that the cases should not be dismissed on those grounds. There were comments today at the argument to the effect that the accountants/banks would comply with the subpoenas unless the Supreme Court ruled them to be invalid (which a dismissal on political question grounds wouldn’t do). There was mention that the accountants and banks did not want to run the risk of being held in contempt of Congress.
It seemed to me that some of the liberal justices thought that ruling for the House would likely result in compromises on subpoenas between Congress and presidents in the future, which is pretty much what has occurred in the past. Ruling for Trump, however, will result in full-blown stonewalling by future presidents.
Sekulow abandoned the ridiculous argument that police or prosecutors cannot even investigate a crime committed by a president while he is in office, but did argue a sitting president has full immunity from legal process (in the context of this case, immunity from having his tax returns subpoenaed). His position seems to be squarely inconsistent with the
Nixon and
Clinton cases. It did not seem that any justice was receptive to this absolute immunity argument. At least there don’t seem to be five votes.
Surprisingly to me, the NY state attorney said he was conceding a state could not indict a sitting president. Perhaps this was a concession he felt he needed to make to help improve his case’s chances of success. He may have felt some of the justices thought he is intending to indict Trump before the election. This concession was very disappointing to me. I don’t think it was one he absolutely had to make. Plus, I think it’s wrong as a matter of law. At least it is an issue the Supreme Court needs to decide, not some back-room DOJ flunkie. Of course, this concession does not bind future state prosecutors, but it clearly puts the kibosh on my prediction that NY would indict Trump this fall. Ain’t gonna happen.
There was some discussion about how the statute of limitations would apply if the president is immune from prosecution. It seems to me this issue also has relevance to whether a sitting president can be indicted. I’m not a criminal law expert, but I thought the SOL was tolled when the indictment was handed down. So in this case, if NY wins and gets the tax returns, why won’t they still have SOL problems if they can’t indict Trump until he leaves office? There was discussion about whether the SOL would be tolled, but while there are decent arguments it should be, the issue is entirely undecided. It is certainly possible that some future court could hold the SOL was not tolled and that any criminal charges against an ex-president are time-barred.
The NY attorney also conceded that federal courts have the power to review state grand jury subpoenas issued to sitting presidents. Yeah, maybe this Supreme Court would include that in an opinion, but I didn’t see the need to make this concession. Again, maybe he did it to try to help his case with this Court.
Most impressive justices to me: Kagan, Gorsuch. Next: Alito. Next: Roberts. Next: Breyer, Sotomayor, Thomas. Least: Ginsburg (though she should be graded on a curve), Kavanaugh.
In terms of the advocates, I thought the House’s was the weakest. The two government attorneys were competent and polished, but otherwise not remarkable. I'd put the first Trump attorney in the same category as the two government counsel. Competent, not flashy. Sekulow was Sekulow. Not too bad. Somewhat similar to what we saw at the impeachment trial, though he dialed back his NY bombast as he should have given the audience. Surprisingly to me, I though the NY state attorney was by far the best advocate today. Was very impressed with him.
There were no toilet flushes.
The only thing I can say for sure is that all of the above predictions will be wrong. Apologies to seacoaster if he heard an entirely different argument.