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TUNING IN

A guide to the Supreme Court’s hearing on Trump’s financial records

Congress
Ephrat Livni
Can Congress inquire into the president’s finances?
  • Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

Washington DC

Tomorrow is a huge day at the US Supreme Court. Though the tribunal stands empty due to the pandemic, the justices will hear remote debates in three major cases about US president Donald Trump’s secret taxes and financial records.

You won’t want to miss this show! Although debate at the high court is unfailingly polite, this is a big fight pitting the president against Congress and prosecutors that will shed light on just how protected a chief executive’s records really are.

Normally, there would be a long line in front of the courthouse by now, with members of the public hoping to secure limited seating for the historic hearings and camping days in advance to up their chances. But as luck would have it, these arguments will be aired live. So, all you have to do is tune in and read up.

Here’s everything you need to know to be prepared for the occasion.

The basics

Essentially, the president wants to keep his financial records secret. Unlike any other chief executive in recent history, he has not disclosed his taxes. Congressional oversight committees and prosecutors in New York want to see them. They subpoenaed Trump’s accountants and bankers for the president’s records, and those entities say they will do whatever a court orders.

But the president intervened to block the subpoenas. He has lost in lower courts so far and has taken his objections to the nation’s top justices, who will decide whether the chief executive is right to claim these requests for his documents—served on third parties—are unconstitutional.

When and where?

The debates will begin at 10 am (ET). You can listen in on C-SPAN.

Remote court sessions begin promptly with the marshal’s traditional call: ”Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are now admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”

With admonishments dispensed and attention duly given, the chief justice John Roberts introduces the first case. Tomorrow that will actually be two cases—Trump v. Mazars and Trump v. Deutsche Bank et al.

Counsel for the petitioner, who is Trump here, then has two minutes for an opening statement about the president’s business. To maintain order in the remote court, the justices ask questions beginning with the chief and proceeding according to seniority. After 30 minutes, more or less, it’s opposing counsel’s turn to deliver their opening and the justices’ questioning starts up again.

Congressional committee cases

Tomorrow’s full session involves three cases and two debates. The first two cases are consolidated for one hour of argument. Both involve subpoenas sent by congressional oversight committees to Trump’s accountants, Mazars, and to his bankers, Deutsche Bank and Capital One.

Last year, the Oversight Committee of the House of Representatives issued a subpoena to Mazars to produce eight years of accounting and other financial information “related to work performed for President Trump and several of his business entities both before and after he took office.” These requests were made after former Trump attorney Michael Cohen—now a convicted felon—testified to Congress about Trump’s tendency to conveniently inflate and deflate his assets on taxes.

The House Financial Services Committee and the House Intelligence Committee also issued three subpoenas to Capital One and Deutsche Bank. As Trump’s brief points out, finance committee chair Maxine Waters told CNN last year that overseers needed to scrutinize the president’s records to determine whether he’s breaking the law.

But that is precisely the problem with the requests, according to the president. Trump, represented by Jay Sekulow—his attorney during impeachment—has argued that the subpoenas to these third parties are illegitimate because Congress doesn’t have law enforcement power. Determining whether the president has broken the law isn’t the committees’ job. Regardless, any claims to need the information for future legislative purposes is just a cover for the true rationale, which is actually that Democrats want to harass Trump.  

A divided DC Circuit Court of Appeals panel found the subpoenas to Mazars were constitutional because they involve topics that Congress can legitimately legislate. The court didn’t think it could limit the committees.

Similarly, a divided panel on the Second Circuit Court of Appeals found “that the bank subpoenas had legitimate legislative purposes, were not an exercise of executive power, and were not attempts to expose [the president’s] records for the sake of exposure.” 

Trump and his administration contend that allowing these subpoenas is tantamount to calling “open season” on the president and gives Congress powers not explicitly granted in the Constitution. “The subpoenas under review here are anything but ordinary, and the congressional investigations that produced them are certainly not routine,” the president’s brief states

The committees’ brief counters that “there is nothing unprecedented about Congressional subpoenas for documents that may shed light on Presidential affairs.” They believe that the only overreach in these matters is Trump intervening in these cases and claiming “the supposed power of a President to thwart investigations in furtherance of Congress’s Article I legislative and oversight functions.”

Prosecutor Cyrus Vance

The second hour of argument will be devoted to a third case arising from a grand jury investigation by New York County District Attorney Cyrus Vance. In 2018, Vance’s office began an investigation, based on public reporting about alleged hush-money payments made on Trump’s behalf to women before the 2016 election.

The prosecutor issued subpoenas to the Trump Organization and to Mazars, Trump’s accountants. Trump intervened in this case and challenged the requests, claiming immunity as president to state court prosecutions.

The Second Circuit Court of Appeals disagreed with Trump and rejected the claim that presidential immunity extends to investigative steps like the grand jury subpoena. In other words, just because Trump can’t be charged criminally while he is in office, does not mean that the prosecutor can’t start poking around. “A President has no categorical immunity from a state grand jury subpoena for documents unrelated to official duties,” Vance’s brief argues.

The precedent

The Supreme Court has considered third-party subpoenas impacting the president before. In 1974, in Nixon v. US, then-president Richard Nixon failed to block records a special prosecutor requested of his aides and advisers during the Watergate investigation. Nixon failed, and the records were turned over.

That precedent will be difficult for the president to overcome, but perhaps not impossible if the court really wants to help Trump keep his secrets. Certainly, the president’s attorneys will be distinguishing the case from Nixon, arguing that case involved a legitimate investigation and not a political witch-hunt like the congressional committees’ endeavors and the Vance grand jury investigation. Meanwhile, Congress’s counselors and those of the prosecutor will cite Nixon for its brilliance. It’s a case that makes it clear that no one is above the law, not even the chief executive.

The decision

The justices’ questions will give us some clues as to what they are thinking but Trump’s top secret financials will remain a mystery for at least a few more weeks, if not much longer. A decision in these cases is expected by term’s end in late June.

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