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Justice Ginsburg asks how the cases for Trump's tax returns differ from Watergate and Whitewater subpoenas for presidential records.
Trump counsel says it's important to note those cases involved cooperative efforts.
Trump counsel says it's important to note those cases involved cooperative efforts.
First line of questioning from Justice Thomas today -- asking Trump counsel about the power of Congress to subpoena.
"What's the line between the legislative subpoena and an impeachment related subpoena?"
"What's the line between the legislative subpoena and an impeachment related subpoena?"
Justice Breyer follows up on Ginsburg & Thomas Qs, repeatedly asking Trump counsel how any standard applied to subpoenas for personal records (eg, tax returns) is weaker than when applied to materials "involving the very workings of the presidential office," citing Watergate.
Chief Justice Roberts up now:
"Does Congress have any power to regulate the conduct of the president which is an office that is created by the Constitution itself and not by Congress?"
"Does Congress have any power to regulate the conduct of the president which is an office that is created by the Constitution itself and not by Congress?"
Justice Sotomayor asks if counsel is disputing whether the House Intel committee subpoenas for tax returns before Trump became president were irrelevant to the purpose of the investigation into Russian interference in the 2016 election.
"He's not in possession of them. These are subpoenas to private entities," Sotomayor says, referring to the NY firm Mazars.
Counsel disputes and justice follows up that these are personal papers.
Counsel disputes and justice follows up that these are personal papers.
Justice Kagan says SCOTUS has never taken up a dispute like today's because there has always been an accommodation seeking between the WH and Congress.
Adds the Trump counsel is asking the justices to put a "ten ton weight on the scales between the president and Congress."
Adds the Trump counsel is asking the justices to put a "ten ton weight on the scales between the president and Congress."
Justice Kavanagh asking how the Nixon precedent applies to the case at hand.
Trump counsel says he doubts that the House subpoenas can meet the demonstrated need standard.
Trump counsel says he doubts that the House subpoenas can meet the demonstrated need standard.
Live tweeting Trump v Mazars/Trump v Vance #SCOTUS arguments underway now. Thomas once again on a role, with 2nd question just now on the legislative proposals linked to House subpoenas.
"It's paper thin," DOJ counsel responds. @CourthouseNews
"It's paper thin," DOJ counsel responds. @CourthouseNews
Ginsburg rejects the DOJ argument that House subpoenas lacked legislative purpose and were for the purpose of probing wrongdoing.
"One must investigate before legislation...you want to explore what is the problem, what legislative change can reduce or eliminate the problem."
"One must investigate before legislation...you want to explore what is the problem, what legislative change can reduce or eliminate the problem."
"It's very hard to shoot at a target in the dark. I don't know what the House wants to do in any sort of specificity," DOJ attorney Jeffrey Wall says.
Justice Sotomayor presses "please I don't want you to go to executive privilege cases," reminding DOJ that Trump's tax returns are from when he was a private citizen.
Wall argues that makes it "deeply troubling" and raises "equally problematic constitutional concerns."
Wall argues that makes it "deeply troubling" and raises "equally problematic constitutional concerns."
Listen along with me to the consolidated arguments for Trump v Mazars/Trump v Vance over subpoenas for the president's tax returns >>> c-span.org/video/?471675-…
Got Dr. Anthony Fauci's testimony up on the TV with captions as I try to listen live to SCOTUS and follow along with the #COVIDー19 Senate hearing. If you're straddling the same fence @BBuchman_CNS is live tweeting to help you along:
"I'll grant, that subpoena looks very much like this one," DOJ attorney says referring to the House and Watergate subpoenas.
But he argues that a ruling upholding the subpoenas for Trump's tax returns will take the country down a dangerous road.
But he argues that a ruling upholding the subpoenas for Trump's tax returns will take the country down a dangerous road.
House attorney Douglas Letter up now, arguing the plaintiffs meet the legislative standard to access Trump’s tax returns. 
Thomas up again asks House attorney to discuss how they arrived at the legislative subpoena power.
Letter says it stems from the British parliament power and is an "obvious and integral part of legislation."
"We obviously can't have Congress passing legislation in ignorance."
Letter says it stems from the British parliament power and is an "obvious and integral part of legislation."
"We obviously can't have Congress passing legislation in ignorance."
Alito asks if protection against use of the subpoenas for harassment is simply whether they are relevant to some conceivable legislative purpose.
"That's not much protection. In fact that's no protection, isn't it?"
"That's not much protection. In fact that's no protection, isn't it?"
Letter, House General Counsel, says SCOTUS said in Clinton v Jones and Nixon v GSA that Congress' power to legislate is extremely broad.
Reminds the court that four lower courts found clear, valid legislative purposes in the subpoenas.
Reminds the court that four lower courts found clear, valid legislative purposes in the subpoenas.
"Was the breadth of the subpoenas litigated below?"
Letter tells Sotomayor yes, cites DC Circuit and 2nd Circuit rulings.
Letter tells Sotomayor yes, cites DC Circuit and 2nd Circuit rulings.
Sotomayor starts to follow up but is cut off by Roberts passing it off to Kagan.
The chief justice has been strict on timing but it's seeming to stifle developing lines of questioning that go deep into the separation of powers conflict here.
The chief justice has been strict on timing but it's seeming to stifle developing lines of questioning that go deep into the separation of powers conflict here.
Kagan picks up though by soft balling a question for Letter to lay out the history of presidents voluntarily providing tax returns.
Nixon for example.
Nixon for example.
House GC Douglas Letter: "History really matters here and it shows that the arguments being made here by President Trump ask you to ignore a massive amount of history."
Congress can't prosecute but can look into criminal activity, Letter says.
The House attorneys adds the recent Bridgegate ruling is an example of SCOTUS tossing white collar charges.
The House attorneys adds the recent Bridgegate ruling is an example of SCOTUS tossing white collar charges.
Letter again falters to provide hypothetical examples for the justices but assures them that there is no example he can think of that would validate the House seeking the president's private medical records.
Letter faced similar hypothetical questions at the District Court and D.C. Circuit but the judges there never pressed the issue as the justices have this morning.
Roberts picks back up on the line of questioning about whether House subpoenas can amount to harassing the president.
Thomas asks if a flood of subpoenas have the ability to debilitate the White House.
Thomas asks if a flood of subpoenas have the ability to debilitate the White House.
Letter pushes back, reminds the justices that in this case "not a single thing is required of the president or the White House" to comply with the subpoenas.
Kavanaugh follows up on Alito diving into limits on committees potentially subpoenaing members of Congress, Letter had said there is no example of such a House subpoena.
"But isn't the whole point that once you start down this road and this court articulates too low a standard that something like that will start happening?" Kavanaugh asks.
Letters shuffling through his papers launches into a brief concluding statement.
"We're not dealing with what ifs here," the House attorney argues.
"We're not dealing with what ifs here," the House attorney argues.
Trump attorney Patrick Strawbridge back now on rebuttal.
"I think it's telling that he can't provide any meaningful limit to that," the Trump attorney says about Letter's arguments for congressional subpoenas of president's personal records.
"I think it's telling that he can't provide any meaningful limit to that," the Trump attorney says about Letter's arguments for congressional subpoenas of president's personal records.
Trump attorney urges the justices to reverse lower court rulings validating the subpoenas for the president's tax returns.
"This is not an attempt to preserve the separation of powers. It is an attempt to eviscerate that."
"This is not an attempt to preserve the separation of powers. It is an attempt to eviscerate that."
"Case submitted," Roberts says on Trump v Mazars.
That's a wrap for the case coming up from the D.C. Circuit.
Trump v Vance up now with Jay Sekulow opening for the president on the 2nd Circuit case.
That's a wrap for the case coming up from the D.C. Circuit.
Trump v Vance up now with Jay Sekulow opening for the president on the 2nd Circuit case.
Sekulow argues that subpoenas for Trump's personal records can target the president saying the practice "subjects the president to local prejudice."
Background on Trump v Vance @ByTimRyan. Having trouble keeping the two tax return cases straight? Read more: courthousenews.com/high-court-set…
Thomas asks if it matters that the subpoenas were issued to third parties.
"Certainly not here," Sekulow responds.
"Certainly not here," Sekulow responds.
Ginsburg asks whether the grand jury "right to every man's evidence" excludes the president.
Sekulow argues the president is temporarily immune and is not to be treated as an ordinary citizen.
"He is the only individual who is a branch of government in our federal system."
Sekulow argues the president is temporarily immune and is not to be treated as an ordinary citizen.
"He is the only individual who is a branch of government in our federal system."
"To require the president to have to respond to each and every state and district attorney--"
"And he'll hire a lawyer...that wouldn't take a lot of time," Breyer says cutting off Sekulow's argument.
"And he'll hire a lawyer...that wouldn't take a lot of time," Breyer says cutting off Sekulow's argument.
Sekulow warns that line of thinking is dangerous and gives the example of him as Trump's attorney calling up the president right now in the middle of a pandemic to spend 2-3 hours going over records responsive to a subpoena.
Sotomayor says it seems like Trump is asking for "absolute immunity" from investigative powers by the state.
"Don't we usually presume that state courts and state prosecutors act as they should and in good faith?" the justice asks.
"Don't we usually presume that state courts and state prosecutors act as they should and in good faith?" the justice asks.
"I'm not sure why he is entitled to more immunity for private acts than he should be for public act," Sotomayor says, noting that Trump had the opportunity to challenge the subpoena as issued in bad faith.
"Well he is the president of the United States," Sekulow argues.
"Well he is the president of the United States," Sekulow argues.
Gorsuch asks how these subpoenas are more burdensome than subpoenas in Clinton v Jones, adds he doesn't understand that argument because these are records from third parties.
"But they are his records from third parties your honor," Sekulow argues.
"But they are his records from third parties your honor," Sekulow argues.
Roberts asks NY Solicitor General Noel Francisco about Sekulow's argument for an absolute standard to protect the president from subpoenas.
"What was wrong with Mr. Trump's position?"
"What was wrong with Mr. Trump's position?"
Francisco says if the NY state court found during grand jury proceedings that the prosecutor hadn't met the special needs standard it wouldn't have to address the broader immunity questions raised by Sekulow.
Ginsburg says she believes there is no case more dramatic than the Nixon tape subpoenas that went to SCOTUS.
Francisco says NY is arguing that state courts be allowed to apply the same standard as a federal prosecutor.
Sotomayor says they're not talking about executive privileged or immunity for the president:
"We're talking about private activities that predated the president's tenure. So why are we using all of that transplanted language?"
"We're talking about private activities that predated the president's tenure. So why are we using all of that transplanted language?"
Sotomayor says she doesn't understand why it is inadequate to simply ask whether the investigation is based on credible suspicion of criminal activity and whether the subpoena is reasonable in its scope and burden.
Kagan questions why the Nixon standard should be applied here to Trump's private financial records.
"Why would you need this heightened standard that is meant to protect" confidential papers, Kagan presses.
Kavanaugh says he wants to zero in on what the Article II standard is here.
NY Solicitor General says the whole idea is Article II invests all the power in a single person and state prosecutors can't "hobble or debilitate that person" fulfilling duties.
NY District AG's Office General Counsel Carey Dunne up now saying here the court is considering a subpoena to a third party.
"No one has been targeted or charged with anything," Dunne says, adding there is no claim of executive privilege.
"No one has been targeted or charged with anything," Dunne says, adding there is no claim of executive privilege.
NY AG GC Dunne adds in his opening statement that the subpoenas were not born of "particular animus" or an effort to harass Trump.
Dunne notes that the lower courts did not find that Trump's attorneys made a sufficient showing of Article II burden.
NY DA GC concedes that the office can't prosecute Trump while in office but repeats there is not Art II burden or animus in the subpoenas.
They were just a "straightforward pursuit" of reports of criminal activity, Dunne says.
They were just a "straightforward pursuit" of reports of criminal activity, Dunne says.
NY attorney general's office argues there is "no empirical basis in history for this apocalyptic prediction," that turning over Trump's tax returns would debilitate the WH, adds the same claims of floods of subpoenas made during Nixon and Clinton showdowns proved to be false.
Dunne continues with smooth and seemingly effortless responses to the justices volley of questions, tells Alito that there is a reasonable probability that the subpoenas for Trump's tax returns will yield relevant findings.
"The reason why we went to Mazars was not to do an end run" around the president's lawyers, Dunne says, explaining that the accounting firm had the more relevant records.
Dunne -- "their definition of heightened need is well you don't need it while he's in office, that's now workable here," argues there could be loss of evidence, fading of memories by grand jury witnesses.
Dunne reminds the justices "no one should forget that we have got an investigation that is looking at the content of other individuals and businesses."
NY AG general counsel warns "every minute that goes by" grants the "temporary kind of absolute immunity" that the president is seeking.
Dunne addresses accusations that the NY AG's office targeted Trump in a coordinated effort by copying the House subpoena language, says it's normal practice to "model" language when the two parties were looking into the same allegations coming from public disclosures.
Dunne wraps up saying there is no need to upend precedent by ruling to validate the NY AG's office subpoenas for Trumps' financial records.
The presidency is being harassed and undermined," Sekulow warns.
"The copying of the subpoena speaks to that," he argues in his concluding statement.
"The copying of the subpoena speaks to that," he argues in his concluding statement.
Case submitted.
That's it for the Trump tax return double-header arguments on Trump v Mazars/Trump v Vance. Story to come @ByTimRyan
That's it for the Trump tax return double-header arguments on Trump v Mazars/Trump v Vance. Story to come @ByTimRyan
“Should a court be probing the mental processes of the legislators?” Justice Roberts said.
The high court seemed concerned about giving Congress free-reign subpoena power, in double-header arguments over subpoenas for Trump's tax returns. @ByTimRyan
courthousenews.com/fight-to-unear…
The high court seemed concerned about giving Congress free-reign subpoena power, in double-header arguments over subpoenas for Trump's tax returns. @ByTimRyan
courthousenews.com/fight-to-unear…
