Thread by @stevenmazie

Trump financial records case oral arguments are underway. Trump's lawyers up first. Listen here c-span.org/networks/?chan…

Two quick flubs: "The first case we will argue today" - CJ Roberts says (rather than hear), followed by Strawbridge forgetting to say "Mr Chief Justice and may it please the Court" and circling back.

Nerves.

CJ Roberts: does the House have *any* power to subpoena a president's personal records?

A: not pursuant to its legislative powers.

Roberts: does your position recognize that House may have such authority and that courts can specify those bounds?

Roberts: sounds like at the end of the day, courts are balancing the interests on either side. Right?

Justice Thomas: [silence]

Justice Ginsburg: there was once cooperation, every president turned over tax returns. Now we have "pitched battle" because Trump refuses. How do you distinguish Whitewater, Nixon tapes, Paula Jones...

A: Many distinctions. No challenge to scope of legislative committee's power.

Thomas: are there *any* implied powers of Congress to subpoena private documents?

A: Some implied power for its legislative powers.

Thomas: DC circuit op says should be requested under impeachment power. Where's the line?

Breyer: are you saying Watergate subpoenas were unlawful, as they were under legislative power? Yes or no? And why isn't whatever standard applies to personal papers weaker than presidential papers?

A: demanding docs is "harassment" when subpoena targets family members of president

Breyer doubles down: but this is personal papers, why not a weaker standard?

On Watergate subpoenas: Strawbridge totally avoids Breyer's first question.

Alito: why not allow these subpoenas to investigate Trump as case study for broad regulatory legislation?

A: Carter was a peanut farmer and Congress wants to legislate farm policy so it can subpoena his farm records? No way.

Sotomayor: long, long history of Congress seeking records and getting them from presidents. SCOTUS has said congressional subpoena is valid w "conceivable legislative purpose". There's a "tremendous sep-of-powers" issue here.

Sotomayor suggests there's more justification for the Intelligence comm subpoena than some others.

Kagan: this isn't he first conflict btw Congress & pres -- but SCOTUS hasn't had to resolve because they've reached accommodations w each other.

You're asking for a "ten-ton weight" on scale for president vis-a-vis Congress.

A: the Court has to draw a line. Unfortunate House didn't just ask Trump for the papers (!!!)

Kagan: some former presidents might contest idea that these subpoenas go so very far. These are just for pre-presidential papers. Seems like a lower standard is necessary. No presidential powers are at stake.

A: even in Clinton v. Jones, idea that president can't be harassed.

Gorsuch: House says there *is* demonstrated legislative need. Why shouldn't SCOTUS defer to the House's statement about its own purposes?

A: SCOTUS recognizes president isn't "an ordinary litigant"

Gorsuch: why is this subpoena not supported by a legitimate legislative need?

A: how does "every credit card swipe, every check" have relevance to Congress's business?

Kavanaugh: "demonstrably critical standard" - how does that play out in practice in a case like this?

A: can't imagine any of these subpoenas satisfy that. it's a "dragnet"

Kav: absent a court order, the banks will comply with the subpoenas, right?

A: yes, they feel obligated to comply. don't want to risk contempt of Congress

JEFF WALL NOW UP

House is targeting Trump's personal records. Harass the president and the presidency. Why does it need these docs in particular?

Roberts: if the subpoenas are investigatory, not legislative, how should court examine that? probe mental processes of Congress?

GLIMMERS OF THE CENSUS CASE

Wall: mismatch between subpoenas and what they say they want to legislate on

Thomas (THE SAME THOMAS WHO SAID CAN'T INVESTIGATE PRETEXT IN CENSUS CASE): pretextual reasons for these subpoenas. They really want to remove the president.

Ginsburg (with mini lecture): one must investigate before legislation.

RBG: you're impugning Congress's motive, distrusting Congress more than the cop on the beat.

Roberts cuts off RBG's follow-up question. Right to Breyer.

Breyer: why not apply same subpoena standard for "any human being in the United States". SCOTUS said in Paula Jones case: prez has special needs, not to infringe on his time, etc. But that's it.

Wall: analogy to Jones is helpful. Courts should take same approach. Congress has some power to get at papers, but must satisfy higher standard.

Alito: what about the Intelligence Committee subpoena?

Wall: way too broad if you're concerned about foreign transactions. Makes no sense.

Alito gets two questions for Wall but RBG got only one??

Come on, Chief.

Wall: all they say is they might want to amend the Ethics in Government Act. But no specificity!

Sotomayor: that's the issue, isn't it? Before the investigation, no way to know how the law might need to be changed!

Sotomayor: fairly common knowledge Trump had been contemplating presidential run for a long time. Why aren't longstanding relationships relevant to possible influence?

Sotomayor getting tons more time than any other justice.

Wall: targeting the personal life of the president!

Kagan: Clinton v. Jones - I read that case differently. Treat prez w respect for his time, but fundamental claim of pres immunity or difference was rejected in that case. You make no case for why these subpoenas place a particular burden on the pres to hamper his constl duties.

Wall: "harassing and undermining the president"

Kagan: Court let similar cases proceed!

Wall: Reshape and transform the balance of sep of powers once the House has this weapon. The president and the institution of the presidency.

Gorsuch: what more would you require the House to do to show it has the heightened need for the subpoenas?

Gorsuch: what about possible rule to require candidates to reveal tax returns?

Wall: I think that might be OK...that's specific enough for judicial review

Kavanaugh: so full House has to authorize the subpoenas? didn't it?

Kav: history and practice matter a lot. Watergate, Whitewater. Those are legislative subpoenas. Tell me more.

Wall: Watergate were for official records, Whitewater is closest analogy.

HOUSE LAWYER UP.

This is not the most effective opening. Choppy.

Roberts to Doug Letter: give me a plausible example of a subpoena that's beyond any legislative purpose:

Letter: Kilborn case

Roberts: your test is not really much of a test. Any alternative to that limitless test that takes into account idea that you're dealing with a coordinate branch of government?

Thomas: where does the subpoena power come from? We're "wandering around in the wilderness" here.

Letter: obvious and integral part of legislation. Can't have Congress passing laws in ignorance.

[Letter starting to hit his stride now after weak opening.]

Thomas: any other implied legislative powers?

Letter: no sorry

Thomas: earliest example of leg subpoena?

Letter: George Washington gave Congress everything...

Thomas wants more history than Letter has available.

RBG: what's the limiting principle that prevents harassment?

A: McGrain case. Subpoena no good bc inspired by politics? No, SCOTUS rejected that. Also Clinton v. Jones. Courts can take care of harassment if it appears.

Not over yet, but so far it seems *Gorsuch* is more likely to join the liberal justices in rejecting Trump's claim than is Roberts. He's standing up for legislative power and speaking of judicial deference to Congress.

Alito takes up harassment again: that's a function of whether it's a conceivable leg purpose? So that's hardly any protection for a president, right?

Letter: if they were solely for harassment, then no legislative purpose.

Ack. talking in circles!

Alito kind of making mincemeat of Letter right now. But Letter has better answers he's not giving.

Roberts is giving Alito TONS OF EXTRA TIME HERE.

Seems he's relishing this dismantling of Letter.

Not the fairest umpire I could imagine.

ALITO IS STILL SPEAKING AND ROBERTS IS JUST LETTING HIM GO.

Sotomayor: personal records w aim of making pres a case study - risks making subpoenas "exposure for the sake of exposure". Tell me what we say to ensure against those types of hypotheticals?

Soto: was breadth of subpoenas litigated below?

Letter: yes, addressed by 2nd ct and DC circuit

Kagan: subpoena couldn't impair pres in carrying out his constitutional functions?

Letter: need a balance there (duh)

Kagan: other side says these subpoenas will undermine presidential duties. Can you respond?

[softball!!]

Letter: that argument not made in the briefs at all. No undermining anway.

Letter: lengthy history of presidents complying with requests for information from Congress - Washington, Buchanan, Grant...Nixon, Carter, Reagan, Clinton

Letter: history really matters here and show that Trump is asking you ignore a massive amount of history.

Gorsuch: usually investigation is to pursue known crimes. What limiting principle would prevent the danger of limitless fishing expeditions?

Kavanaugh: how to deal with limitless authority? Grave threat to future presidencies? Or not. OK so long as pertinent to a legislative purpose, but anything can be characterized that way. Q: how can we protect House's interest & protect the presidency?

Kav: why not "demonstrably critical" test?

Letter: good question. Not sure how they'd do that w/o violating sep of powers. How to force Congress to show some kind of demonstrably critical purpose...

Letter is not coming close to addressing the justices' concerns re: a limiting principle for what Congress can and can't subpoena regarding a president.

This is embarrassing.

Roberts: "I know you'll be delighted to learn we have time for additional questioning."

Harsh?

Letter: when does it reach a stage of harassment? Nowhere near that here.

Roberts: what about subpoenas from district attorneys (cf. Vance)?

Letter: we have no contact with NYC (not answering the q)

Roberts: how do you measure harassment?

Letter: a "massive number" of subpoenas would be a problem. Not issue here.

Thomas: Why not look at full effect of all these subpoenas? Every grand jury, every prosecutor, House, Senate...one manageable, 100 impossible...

Letter: nothing required of president here!

Thomas: we all know it's about the president!

Breyer: not just Trump, 15 other parties, organisations. Wouldn't you at least want to know what's being turned over? "My problem is there may be burdens here, third parties or not."

Clinton v. Jones bothers me. Future Sen. McCarthy asking future president same qs bothers me.

BREYER SHOWING HE'S NOT AT ALL SOLD ON THE HOUSES'S POSITION.

Did Letter do moots?

Kagan trying to come to Letter's rescue: two subpoenas address pres directly, but finan services committee taking a broader scope. Not looking into president but broader need -- better rationale there?

[Kagan should have argued this case.]

Letter: Courts still here to monitor abuses if subpoenas begin to edge on harassment, ala Clinton v. Jones.

Letter's wrap-up. Come on now.

Focus on the specific subpoenas in this case. Not dealing with what-ifs here.

EXCEPT SCOTUS ALWAYS DEALS WITH WHAT-IFS.

Somehow the wrap-up was the worst moment of Letter's argument.

Strawbridge rebuttal, ruthless: "my opponent struggled with every hypothetical."

The old nugget is that you can't win a case at oral argument, but you *can* lose a case at oral argument.

I'm not sure Letter even has Breyer on his side.

For a case like this, the advocate must have a broad, zoomed-out statement of principle regarding the importance of separation of powers and how Trump's position undermines it. Letter just had "Clinton v. Jones."

So uninspiring, so disappointing.