"This President" v. "The Presidency"

Issues from Trump v. Hawaii return to Trump v. Mazars.

On the eve of oral arguments in Trump v. Hawaii, reporter Robert Barnes aptly summarized the case in a pithy headline for the Washington Post: "In travel ban case, Supreme Court considers 'the president' vs. 'this president.'" The Court chose the former. "[W]e must consider not only the statements of a particular President," Chief Justice Roberts explained, "but also the authority of the Presidency itself." Shortly after the case was decided, I asked how the Court would treat "this President" as opposed to "the President" in future cases.

Today, the Supreme Court heard a marathon of oral arguments in the two tax-return: Trump v. Mazars and Trump v. Vance. The former case considers congressional subpoenas and the latter case considers state grand jury subpoenas.

During Mazars, the advocates expressly contrasted "this president" with "the presidency." First, Patrick Strawbridge, who represented President Trump:

MR. STRAWBRIDGE: Now it is no secret the relationship between the House of Representatives and the President is frayed, but this is neither the first nor the last time that one House of Congress will be at odds with the President. 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.

Second, Deputy Solicitor General Jeff Wall:

MR. WALL: So, yes, we are saying that these subpoenas, and certainly these subpoenas taken in the aggregate, once the House has this weapon, will harm and undermine the presidency of the United States, not just this President, the institution of the presidency going forward.

Justice Ginsburg raised this issue, indirectly:

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. So it gets to be a pitched battle here because President Trump is the first one to refuse to do that. And, initially, he said because an audit was ongoing. Now it seems to be broader than that.

Justice Ginsburg made similar remarks in 2016 before Trump was ever elected:

"He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."

Later, during oral arguments in Vance, Justice Gorusch raised this precise issue:

JUSTICE GORSUCH: Well, I --I know you think you win no matter what. I'm --I'm just --we have to write a rule that's presumptively of --of some value going forward and isn't just about one President but it's about the presidency.

Will the Tax Return cases yield decisions for "this President" or "the Presidency"? I don't have a firm prediction here. I will flesh out my thoughts in a few other posts.

Comments

[Alan Vanneman]

"I will flesh out my thoughts in a few other posts."

I can hardly wait. Not.

[Michael W. Towns]

Blackman is one of the smartest guys in the country right now when it comes to SCOTUS analysis. Don't like it? Then go be a troll somewhere else.

[great Unknown]

The problem with Professor Blackman is that he is honest. Which gives his analyses a distinctly conservative flavor. Hence the critics.

[bernard11]

Blackman is a Trump toady.

[M L]

Reality has a Trumpian bias.

[NOVA Lawyer]

Which why is he lies so much?

[bernard11]

Maybe he'll do that after a few dozen more posts about the line to get into SCOTUS hearings.

[Michael W. Towns]

You sound jealous of Blackman, quite frankly. Well, you should be.

[Orbital Mechanic]

So what stops them from applying the Scalia technique of handing down a decision that applies "to this case only" and leaves to door open for an opposite decision if the same case comes up with different parties? Bush v. Gore.

[David Nieporent]

Contrary to what you may have heard, BvG does not say that it applies to this case only.

[Dilan Esper]

It doesn't, but it came close to saying it, and that footnote is an embarrassment.

[Armchair Lawyer]

Oh, why wait...

Here are my thoughts.

Congress has very broad subpoena powers. It has the right to subpoena virtually anything related to oversight or legislative purposes. It has used that subpoena power in the past to gain access to tax returns, trade secrets (Ashland Oil) and Attorney-client communications (The Inslaw Affair). Are there any limits on it?

My thoughts are this. This power must be bounded, as the ability to obtain and release confidential information of just about any kind, without any limit, without any penalty, is too broad. My limit would be this. It needs to be for a legitimate legislative purpose. It cannot be for a pretextual purpose. Because it is far too easy for a committee to abuse its subpoena power for political gain.

In the case here, it is clear that the Democrats seek to gain access to and publically release Donald Trump's tax returns for political gain. I would have absolutely no issue with them reviewing the tax returns if it could be ensured that they would remain confidential. But we cannot, and given statements by members of the Democratic Caucus, it is extremely unlikely they would remain confidential if released. The use of the Congressional Subpoena power for political gain is an extremely dangerous tactic that must not be allowed. Here, it's simply tax returns. But it has already been established that neither attorney-client privilege, nor trade secret is any bar to Congressional subpoena. If the need for a legitimate (non-pretextual) legislative/oversight purpose is not a bar either, then abuse will occur (as is currently happening). Parties will subpoena the campaign strategies of opposing politicians. Key trade secrets will be subpoenaed, then released publically for gain of one sort or another. All it takes is a bare majority in a single house of Congress...indeed in a single committee in Congress, for anything that should stay confidential to be released to the public.

[Aktenberg78]

Agreed. The Democrats are acting in bad faith, as usual.

[bernard11]

it is clear that the Democrats seek to gain access to and publically release Donald Trump’s tax returns for political gain. I would have absolutely no issue with them reviewing the tax returns if it could be ensured that they would remain confidential.

Ah. Evil Democrats is your excuse?

[Armchair Lawyer]

Evil Democrats? No. I'm simply taking them at their word.

[Momo]

I am very disappointed there isn't a Bill of Attainder argument being entertained.

I know not an actual bill, but in the penumbra of the clause.

You have an act of Congress that

1. Good after a specific individual or a proxy of them (thier business)

2. The goal is to punish them. Either making the process the punishment (tie them up with this to impede the ability to do thief job) or as a pretext to find any crime to go after them and their supporters on. The old "Show me the man, and I'll find you the crime."

3. They want to avoid judicial review

This is made more egregious because that branch of government has a legitimate avenue to remove the hatred indivisible, but they failed to do it.

This is clearly not a legitimate investigation or oversight activities, but a political hit job. The type of hot job the Bills of Attainder clause was supposed to restrict.

[Momo]

Seeing as I don't see an edit button, please mentally correct the autocorrect errors

[Rossami]

Who gets to decide what is a legitimate legislative purpose and what is a pretext? That's certainly not something that regular courts should be adjudicating. How will whatever that body is make decisions when the motives are mixed? What about when motives are not clearly articulated?

I don't see "legitimate legislative purpose" as a workable standard.

The more I think about it, the more I think that Congress ought not to have any subpoena power at all (outside the context of an impeachment, that is). If they need information for legislation, they should figure out how to get it voluntarily. The rest of us have privacy rights and an unconstrained right to snoop is not a power that anyone in government should have.

[Armchair Lawyer]

"I don’t see “legitimate legislative purpose” as a workable standard."

I understand the arguments. I realistically don't see any way around them however. Congress needs subpoena power in terms of its oversight and legislative capacity.

A court needs to judge. It's not ideal, but it's the best of a series of bad alternatives.

[NOVA Lawyer]

I agree that "legitimate legislative purpose" is not much of a standard, particularly if used as Armchair Lawyer would use it (to deem illegitimate anything he doesn't like). But I come to the opposite conclusion (at least tentatively) on the subpoena power. There are political remedies for Congress abusing it vis-a-vis the President, so that sort of misuse doesn't carry a lot of weight with me.

Your exception for impeachment gives away the game, I think. Impeachment is rendered nearly toothless if Congress doesn't have the power to subpoena prior to beginning impeachment proceedings (i.e., in the ordinary course of oversight). I see it best as: oversight - subpoena necessary for oversight - possible grounds for impeachment discovered. You seem to see the arrows going in the reverse direction. I don't think that's workable.

Also, Congress shouldn't only get things voluntarily. There must be limits for obtaining individual's records based on privacy/harassment/etc., but this situation is different. It isn't some random individual against whom they have a political grudge, this is the President which dramatically lowers (in a sense) the political stakes because it is a person/branch with similar powers and political remedies. Also, the office of the President is subject to government ethics, etc., and interference with elections is a thing, so getting tax returns (particularly where every President over the past 40+ years has voluntarily released them) seems well within the scope of the sort of documents Congress has a legitimate reason to inspect. Contrary to Armchair Lawyer, it isn't obviously pretextual.

And, given the present facts (Congressional subpoenas are generally valid), I didn't hear any remotely convincing differentiation of this case from the Paula Jones case. All of the handwringing about multiple prosecutors across the country seemed more than adequately countered by the specter of millions of private litigants. Similarly, the burden of responding to a document request (which may be limited to filing objections to production) seems orders of magnitude less than the burden of showing up for a deposition. Do conservatives thing the Paula Jones case was wrongly decided or is their only guiding principle whether it is good for Trump?

[Rossami]

I'm not convinced that losing the subpoena power would gut Congress' ability to impeach. It just means they need to start the process based on information they get from someone voluntarily. Remember that Congress can impeach for any reason or none. They could impeach Trump because they don't like the way he parts his hair. Once they start the process, subpoena power in the context of impeachment is pretty non-controversial.

Legislative subpoena power is assumed to be valid but I am less convinced that it is. And your point that the President (as a co-equal branch) is less affected actually makes my point. I think it is despicable that Congress can drag a CEO or anyone else that catches their eye to Washington so they can stage a show-"hearing" where everyone except the supposed witness gets to pontificate, lecture and berate. Hawley is a great example of this kind of abuse, though his behavior is hardly unique.

Thinking more, I'll grant another exception. Congress ought to be able to call other government agencies on the carpet. But they generally do that through their oversight powers, not via subpoenas so maybe that doesn't apply...

[NOVA Lawyer]

Rossami,

I agree the subpoena power can and often is abused for show-hearing purposes, but just eliminating subpoena power seems to me to defang an already weak and ineffectual Congress. What sense would it make for them not to be able to, for example, subpoena records of how the current stimulus money is being distributed? How could Congress decide whether to spend more, or how to spend it, etc.? The Office of the President already has many built in advantages in power (controls the CIA, military, the DOJ, and various other law enforcement agencies, etc., and is vested in a single person, whereas Congress has to corral cats to get so much as a resolution declaring National Corvette Day), the least the Constitution and Courts can do is allow our representatives to know what the executive is doing and gather information to enact sensible laws (hope springs eternal!), regardless of whether the executive agrees they should have the information. Sunlight, disinfectant, and all that.

[Rossami]

Again, they don't need a subpoena power to see how stimulus money is being distributed. They can demand that information from other government agencies through their oversight power.

Qualifier: If you're saying that they need to see how, for example, banks are distributing the stimulus money, yes that would require a subpoena unless Congress thought ahead for two seconds and made such reports a part of the law authorizing banks to get the money to distribute.

The difference is that their oversight power is limited to demanding things from government officials acting in their official capacity. They don't need and should not be able to arbitrarily demand things from private citizens. The rest of us want to stay out of government for our own very good reasons.

[librarian]

For what it's worth, opinion polls consistently show the public is "pro-investigate" when most investigations arise. People want to know answers to questions, and most likely don't buy these "too much nuisance" arguments. It's plainly elitist for public officials to side with public officials, as such.

[Aktenberg78]

Yeah, everyone supports "investigations" in the abstract, but never have any idea how it would actually be done. This was the case when people were polled as to whether the FBI should "investigate" the Ford claim against Kavanagh, even when it was clear that there was nothing to investigate.

[grb]

Aktenberg78 : "Yeah, everyone supports “investigations” in the abstract, but never have any idea how it would actually be done"

Damn fine point. Let's take the biggest partisan farce of them all as example : Brett Kavanagh's "investigation" of Vince Foster's suicide : Three years long and a crude joke every second of the way. Kavanagh cheerfully admitted he knew the conclusion from day-one, and why not? Robert Fiske had concluded so after a professional five month investigation, and Kavanagh would barely add a fact to Fiske's findings. Instead, he spent years recycling trash from the right-wing gutter press and leaking copiously to favorite reporters. Wanna know whether Foster was secretly a Mossad agent? Kavanagh settled that conclusively. (No)

Three years in, the Foster family pleading for some belated dignity, and Brett sic's the FBI on the Foster daughter. Why? For a hair sample. You see, Brett's holy-grail was proving Vince and Hillary - well - did it. (the daughters hair was also blonde) Kind of gives perspective to his latter pious indignation at the hearing, yes? As investigations go, Kavanagh's is still the gold standard for reeking s**t, showing an utter contempt for the law never again equaled.

Good career move for Brett tho.....

[NOVA Lawyer]

grb,

Please repeat this often. The hypocrisy is galling.

[Krayt]

You are not supposed to twist the power of investigation against political enemies. This is the real reason for the 4th and 5th, the king wrecking uppity opponents, not yokels in the streets with police.

I can grant every accusation againsg Trump, and still the overt, savage attacks using this are over the top. The glee with which some shameful Congressmen ran around screetching that protections don't exist because it is an impeachment, so they can subpoena anything they want to get him. Request his taxes. Pass it down to states to request taxes to "get him".

Which is to say leak it for embarrassment purposes. Someone who "has seen" his tax return is doing everything he can to make sure it gets out for embarrassment purposes.

Thoroughly disgusting to the core, no matter how awful Trump is.

It just emphasizes the wisdom of the founding fathers in putting this stuff into the Constitution.

Were you joyous and happy while all this trashing of the Constitution was going on, so hateful of Trump are you?

You are worse, and far more dangerous to the Constitution, than Trump ever was.

[Sarcastr0]

This is just partisan screeching. Reads like something from Free Republic.

Next you'll be challenging liberals to duels and typing in all caps.

[Aktenberg78]

He speaks the truth.

[Sarcastr0]

Yes, partisans like partisan screeching. But all it is is Dems bad rawr. It engages with nothing interesting to anyone who is not as fully tribal - and in the same tribe - as Krayt.

[librarian]

Yes, you're right there is too much politically motivated investigation. But who am I to impose that judgement on my fellow Americans? The founding fathers, even in an age when there were populist rebellions, trusted the people to govern themselves.

[Stephen Lathrop]

I have a prediction, however infirm.

These cases, in the aggregate, will come out like Bush v. Gore. Trump will get the benefit of the decision, and be held harmless from discovery. There will be blather about how this situation is sui generis, and the decisions not precedential, or at least so unique as to facts—and perhaps with many facts officially suppressed—as to be widely inapplicable to any other cases.

Possibly, other parties involved, like Deutsche Bank, will find themselves further ensnared, but with investigators limited to investigations and legal proceedings which keep every Trump detail strictly secret—at least until Trump is out of office.

[NOVA Lawyer]

I disagree. I don't see how the Justices don't, at worst, send the case back to the District Court for some finding of fact such as on the burdensomeness versus necessity of obtaining the material. which will easily be met in the New York criminal case. Of course, that would (one hopes) delay the outcome until after January 2021 in which case it is largely moot. But the principle will stand in favor of the subpoena power and a limitation on the kingly powers sought by this President.

[Michael W. Towns]

"But the principle will stand in favor of the subpoena power and a limitation on the kingly powers sought by this President."

"Kingly powers" -- this is pure twaddle. Trump isn't seeking kingly powers.

[Sarcastr0]

Being immune from Congressional oversight if you don't wanna is certainly not a very small-r-republican way of doing things...

[Sarcastr0]

This is just the stupid drive-by 'Trumplaw' 'Orange Man Bad' comments writ longer.

You're implying bad faith for all the liberals in the Supreme Court. Except your only evidence is that they don't like Trump. That does not mean they can't be professional.

I'd say you should be ashamed to delegitimize the Court like this, but I've seen your other posts.

[loki13]

"I’d say you should be ashamed to delegitimize the Court like this, but I’ve seen your other posts."

You can't have shame when you are on your knees, begging for a federal judgeship, lacking only the qualifications and the pride that would normally be required for one.

[NOVA Lawyer]

lol

[Aktenberg78]

If it walks like a duck, quacks like a duck...

[Bob from Ohio]

"You’re implying bad faith for all the liberals in the Supreme Court. "

All? Debatable

One. Certainly

"Justice Ginsburg made similar remarks in 2016 before Trump was ever elected:
"He is a faker," she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. "He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that."

Aren't you bothered at no recusal?

[Sarcastr0]

Not liking Trump does not mean will rule in bad faith.

Not everyone is as morally rudderless as you are.

[Bob from Ohio]

She commented on his tax returns, the very issue in one of the cases.

[Jason Cavanaugh]

Whereas Gorsuch and Kavanaugh literally owe their jobs to Trump.

But yet that doesn't seem to bother you. I wonder why...

[NOVA Lawyer]

But I recall Bob being very indignant when Scalia and Thomas refused to recuse themselves because he is rigorously non-partisan in his analysis. /sarc

[Commenter_XY]

Sarcastr0, it is a fair question about Justice Ginsberg. I admire Justice Ginsberg, yet disagree with her expansive judicial philosophy. She just should not have made that comment. This, she did to herself. And her comment went straight to the heart of the matter: POTUS Trump's tax returns.

Why should I believe she will be impartial in this case?

[Sarcastr0]

Why should you believe she will rule in bad faith? The default judicial assumption is good faith, and that has not been rebutted. Her general feelings about Trump, wisely stated or not, aren't germane to the issue.

Just as Trump's general feelings about Muslims weren't germane to the Muslim Ban question.

[Commenter_XY]

Let us see, Sarcastr0.

I want you to be right about RBG = The default judicial assumption is good faith

[Jmaie]

I want him to be right as well. One need not be a screeching partisan to think that her comments skirted the borders of avoiding even the appearance of impropriety.

[loki13]

It is breathtaking and refreshing to see so-called conservatives so quickly accede to the desire of an unbounded and tyrannical Presidency, while clutching their pearls at the thought that Congress might .... issue subpoenas.

Quite the shakeup from the how the Constitution was originally envisioned. Of course, when you have sacrificed what little integrity you have in order to toady up at the feet of a snake-oil salesman, you shouldn't be surprised.

I mean, really, did the Framers really want Congress to do anything? That's such a silly thought! The ultimate protection against ol' King George is the unitary executive.

[bernard11]

It is truly amazing how Adler and Blackman and the conservative Justices buy into the framing that this is about limiting the power of Congress, and express zero concern about limiting the power, or even the potential for corruption, of the President.

They seem to want to turn him into an unaccountable monarch, at least if he's a Republican.

It's disgraceful.

Maybe one of the Conspirators could write a book about unprecedented Presidential overreach. Or even a blog post.

[Bob from Ohio]

Biden is going to win so we are advocating against interest.

[Aktenberg78]

Not really, as any rule the Democrats come up with won't apply when their ox is being gored. "Norms" only matter when they're a weapon to be used against Republicans.

[Sarcastr0]

speculative future evils aren't real; they just show what's in your mind.

[NOVA Lawyer]

I will happily join you in chiding Joe Biden or any future President of any party if that President should ever try to resist a subpoena for his or her tax records. This (resisting a subpoena for records every other President has voluntarily released and which does help Congress and the public ensure there is not corruption of the office) does not seem to be a sufficient price for your ethical soul, Aktenberg.

Maybe try this "norms" thing when it isn't a Republican who very conspicuously violated those norms after promising not to do so. In other words, it's pretty clearly Republicans who only care about norms when their ox is wearing a tan suit.

[Jmaie]

"This (resisting a subpoena for records every other President has voluntarily released "

Every one, except for the first 36...

[M L]

The "Constitution" is barely followed at all, so the whole thing is kind of a farce.

[Sarcastr0]

Your idiosyncratic view of the Constitution is not the same as the Constitution.

[takethefifth]

Trump should have cited Dept of Comerece v N Y. Does anybody really believe there is a legislative purpose- Adam Sciff. If it’s good enough for the executive branch why not the legislative branch. Justice Roberts should find “Unlike a typical case in which an LEGISLATURE may have both stated and unstated reasons for a decision, here CONGRESSES enforcement rationale—the sole stated reason—seems to have been con- trived. The reasoned explanation requirement of A SUBPEONA is meant to ensure that CONGRESS offer genuine justifications for im- portant decisions, reasons that can be scrutinized by courts and the interested public.

[jubulent]

Every President voluntarily turned over his tax returns. So it gets to be a pitched battle here because President Trump is the first one to refuse to do that.

Once Republicans retake Congress in 2021 they should impeach this hack.

The appearance of impropriety is important for our super-legislature. Ginsburg let the mask slip and outright lied during session.

[librarian]

Absolute Immunity is not in the Constitution.

[TwelveInchPianist]

What are you, new? Any competent toady will disagree with their, uh, toader, just enough to make it look they're toadying in good faith.

[NOVA Lawyer]

When Krayt's comment is factually challenged (whatever it is he thinks is in the Constitution that prevents Congressional oversight and subpoena powers is not in the Constitution), it is just a partisan screech. Sarcastro called that out. Krayt makes assumptions that only his tribe will agree to and that is exactly what Sarcastro noted.

Or do you assume that Krayt was upset when President Clinton was forced to testify in a civil case? Or is there something in the Constitution that gives private civil litigants greater subpoena powers than State governments or Congress? Really?

[NOVA Lawyer]

A speech on moderation that takes for granted the truth of a bunch of "normative" claims regarding what is and isn't in the Constitution (when what he states is in the Constitution just isn't) is, nearly by definition, a partisan screed, no matter how much it "mimics" a famous speech on moderation. People pretend to things they aren't all the time. At best, Krayt is pretending to moderation. But, best or worst, he manages merely a political screed based on an idiosyncratic reading of what is in the Constitution ("...because it is an impeachment, so they can subpoena anything they want to get him..." - Krayt arguing Congress can't subpoena things relevant to an impeachment, though everyone agrees impeachment is the one area where they do have extensive, if not unlimited subpoena power). You aren't very good as Krayt's bulldog.