Live-tweeting Trump v. Mazars oral argument here.
Chief Justice Roberts focuses on the question of whether Trump's position is that Congress has no power to subpoena, or whether this is a balancing of interests.
Roberts seems to favor a balancing approach.
Chief Justice Roberts focuses on the question of whether Trump's position is that Congress has no power to subpoena, or whether this is a balancing of interests.
Roberts seems to favor a balancing approach.
2/ RBG:
Trump's counsel says the subpoenas are unprecedented.
RBG replies:
Isn't that because President Trump's refusal to disclose his tax returns is unprecedented (in the modern era)?
Trump's counsel says the subpoenas are unprecedented.
RBG replies:
Isn't that because President Trump's refusal to disclose his tax returns is unprecedented (in the modern era)?
3/ Justice Thomas:
"Are there limited powers to subpoena private documents?"
Trump's counsel Strawbridge: "Congress has implied powers for legislation. But only aggregated information." [Not just a specific case]
"Are there limited powers to subpoena private documents?"
Trump's counsel Strawbridge: "Congress has implied powers for legislation. But only aggregated information." [Not just a specific case]
4/ Alito continues along this line, about targeting a specific president's finances. Strawbridge says Congress cannot make a single president a "case study."
5/ Alito asks leading unitary executive question: President is "an office created by the Constitution, not Congress."
Strawbridge: "Yes, Special status, protected from Congress. Use avoidance principles not to overstep Constitution."
This is total ahistoric nonsense.
Strawbridge: "Yes, Special status, protected from Congress. Use avoidance principles not to overstep Constitution."
This is total ahistoric nonsense.
6/ Kagan says to Strawbridge:
"In the past, Congress and Presidents have always negotiated compromises. This is because it is, of course, a balancing of interests.
But now you're putting a 10-ton weight on one side of the balance."
"In the past, Congress and Presidents have always negotiated compromises. This is because it is, of course, a balancing of interests.
But now you're putting a 10-ton weight on one side of the balance."
7/ Kagan:
"I think past presidents would question whether these subpoenas are the most intrusive ever. Many past president would say Congress has asked them for more, and they gave more to Congress."
"I think past presidents would question whether these subpoenas are the most intrusive ever. Many past president would say Congress has asked them for more, and they gave more to Congress."
8/ Gorsuch asks what the standard is for a "valid legislative purpose."
Strawbridge says Congress had to show a "demonstrated need" for a valid statute. There is no demonstrated need here.
Strawbridge says Congress had to show a "demonstrated need" for a valid statute. There is no demonstrated need here.
9/ Breyer focused on the distinction between a private party/private documents vs. subpoena of an official and public/official documents.
A key question that contests the Alito unitary executive framing about the President's office vs. private person in the office.
A key question that contests the Alito unitary executive framing about the President's office vs. private person in the office.
10/ Now Jeffrey Wall, DOJ for Trump:
"Congress shows no interest in valid legislation. The real purpose is not in service in legislative powers. Really a criminal investigation."
DOJ raises a valid concern. Congress did bad job on presenting investigation as legitimate interest.
"Congress shows no interest in valid legislation. The real purpose is not in service in legislative powers. Really a criminal investigation."
DOJ raises a valid concern. Congress did bad job on presenting investigation as legitimate interest.
11/ This is the weakest part of Congress's case. Everyone knows that its primary interest is investigating Trump.
As I wrote in my op-ed, the Framers intended for Congress to have this power to investigate emoluments and secret bribes.
Why didn't Congress make this clear?
As I wrote in my op-ed, the Framers intended for Congress to have this power to investigate emoluments and secret bribes.
Why didn't Congress make this clear?
12/ But RBG offers a good question/response:
Investigation and legislation go hand-in-hand.
Good legislation depends on thorough investigation.
And as long as legislative interest is valid, then this investigation is valid...
Investigation and legislation go hand-in-hand.
Good legislation depends on thorough investigation.
And as long as legislative interest is valid, then this investigation is valid...
13/ And I'm connecting RBG's 1st question and 2d question:
All other modern presidents disclosed their taxes.
Trump did not.
If Congress has an interest in tax disclosure for candidates, this isn't "targeting Trump"
This is Congress just closing a gap in the record.
All other modern presidents disclosed their taxes.
Trump did not.
If Congress has an interest in tax disclosure for candidates, this isn't "targeting Trump"
This is Congress just closing a gap in the record.
14/ I've written before about this problem in Congress's case. Good faith reason vs. bad faith pretext.
Valid worry about Congess in bad faith using a pretext to target one party's candidates, not the others. Imagine the GOP House harassing Obama or Hillary. There are limits.
Valid worry about Congess in bad faith using a pretext to target one party's candidates, not the others. Imagine the GOP House harassing Obama or Hillary. There are limits.
15/ Kagan is taking a fascinating approach here.
"Let's grant that in the past, Congress was trying to harass and undermine past presidents with subpoenas. But courts got out of the way. Refused to judge what was harassing vs. what was valid..."
"Let's grant that in the past, Congress was trying to harass and undermine past presidents with subpoenas. But courts got out of the way. Refused to judge what was harassing vs. what was valid..."
Kagan:
"As long as the subpoenas do not prevent president from fulfilling office, why should courts judge valid vs. political when there are always politics involved."
"As long as the subpoenas do not prevent president from fulfilling office, why should courts judge valid vs. political when there are always politics involved."
17/ Kavanaugh asking about Whitewater subpoena historical precedent.
Reminder: Kavanaugh was key lawyer on Starr's Whitewater team.
DOJ says to Kavanaugh that this tax subpoena is unprecedented "weaponizing" investigation.
Really.
Reminder: Kavanaugh was key lawyer on Starr's Whitewater team.
DOJ says to Kavanaugh that this tax subpoena is unprecedented "weaponizing" investigation.
Really.
18/ Now the House's lawyer Douglas Letter:
Roberts asks about a proposed standard for valid legislation: an area where "legislation could be had."
Not only is the House's standard WAY too broad.
It is an absurd and unncessary use of passive voice.
Big errors by House team.
Roberts asks about a proposed standard for valid legislation: an area where "legislation could be had."
Not only is the House's standard WAY too broad.
It is an absurd and unncessary use of passive voice.
Big errors by House team.
19/ I'm not just being tongue in cheek about passive voice.
This sloppy writing by House Dem legal team reflects vague and sloppy legal thinking.
Very disappointing.
This is a lesson how not to litigate to win.
Why didn't they give a fair standard.
This sloppy writing by House Dem legal team reflects vague and sloppy legal thinking.
Very disappointing.
This is a lesson how not to litigate to win.
Why didn't they give a fair standard.
20/ Thomas asking for precedent of Congress issuing subpoenas to private parties for private documents.
Good clear key questions from Thomas.
Letter cites Watkins, but not a great answer.
I don't think Letter for the House is doing well at all.
Good clear key questions from Thomas.
Letter cites Watkins, but not a great answer.
I don't think Letter for the House is doing well at all.
21/ Letter's answers to RBG were vague and muddled on what counts as improper/impermissible harassment.
This is not good lawyering by Letter.
Why didn't he have clear answers ready for these softballs?
This is not good lawyering by Letter.
Why didn't he have clear answers ready for these softballs?
22/ Breyer asks similar question about limits on subpoenas.
Letter seems to have few good answers about limiting principles to Breyer. Just cites brief saying subpoenas are "very specific."
Why is that a good answer?
Alito follows up. This is just getting worse for the House.
Letter seems to have few good answers about limiting principles to Breyer. Just cites brief saying subpoenas are "very specific."
Why is that a good answer?
Alito follows up. This is just getting worse for the House.
23/
Alito: "You couldn't give the Chief an example of a subpoena that would go too far. You can't think of a single example? Are there no limits on this power?"
Letter: <<<crickets>>>
Alito: "You couldn't give the Chief an example of a subpoena that would go too far. You can't think of a single example? Are there no limits on this power?"
Letter: <<<crickets>>>
24/ Alito gives a clear example of Congress using subpoenas to show that a president isn't as rich as he claims, just trying to embarrass a candidate.
Letter: No good answers.
This is kind of a disastrous oral argument. I am just stunned how badly this is going.
Letter: No good answers.
This is kind of a disastrous oral argument. I am just stunned how badly this is going.
25/ Kagan goes back to the limits question:
"You said to Chief Roberts: 'A subpoena couldn't impair a president from performing his executive functions.' The DOJ said this undermines the president."
Letter better answer now: "A subpoena to a 3d party has no impact on president."
"You said to Chief Roberts: 'A subpoena couldn't impair a president from performing his executive functions.' The DOJ said this undermines the president."
Letter better answer now: "A subpoena to a 3d party has no impact on president."
26/ Kagan asks about historical record on subpoenas.
Letter is better at listing examples, especially Nixon: Broad request for his family's tax returns.
The problem is that this backfires with conservatives who believe this history has badly undermined the president's office.
Letter is better at listing examples, especially Nixon: Broad request for his family's tax returns.
The problem is that this backfires with conservatives who believe this history has badly undermined the president's office.
27/ Gorsuch: "Don't you need clear evidence of a crime in order to investigate a crime with criminal process?"
I can't follow Letter's muddled response here. This was getting better, but then got worse.
I can't follow Letter's muddled response here. This was getting better, but then got worse.
28/
Kavanaugh: "Powers can be abused. Subpoena power can be abused. You say 'it's ok as long as it has a connection to a legislative purpose.' But anything could have a legislative purpose. You offer no limits on this power..."
Kavanaugh: "Powers can be abused. Subpoena power can be abused. You say 'it's ok as long as it has a connection to a legislative purpose.' But anything could have a legislative purpose. You offer no limits on this power..."
29/
Kavanaugh: "Why not a 'demonstrably critical' test to show the need for this evidence?"
Letter: "That would overstep separation of powers."
This is just about the worst possible argument to ask in a case when you are arguing against a strict separation of powers argument.
Kavanaugh: "Why not a 'demonstrably critical' test to show the need for this evidence?"
Letter: "That would overstep separation of powers."
This is just about the worst possible argument to ask in a case when you are arguing against a strict separation of powers argument.
30/
Letter: "How can courts decide what is pertinent or valid at the beginning of an investigation?"
Kavanaugh: "Courts do this all the time in criminal procedure."
Kavaugh is totally right.
Letter is hurting the House case again and again. Wow.
Letter: "How can courts decide what is pertinent or valid at the beginning of an investigation?"
Kavanaugh: "Courts do this all the time in criminal procedure."
Kavaugh is totally right.
Letter is hurting the House case again and again. Wow.
31/ Roberts: "You'll be pleased that we can give you more time for questions."
Letter: "I am happy to have more questions."
I'm not.
Roberts signals this is not going well. "You haven't clarified the limits on this power. What are the limits?"
Letter: "I am happy to have more questions."
I'm not.
Roberts signals this is not going well. "You haven't clarified the limits on this power. What are the limits?"
32/ Thomas: "A straw can break the camal's back. WHAT. ARE. THE. LIMITS."
Letter: "Our subpoenas are not to the president. Just to 3d parties."
You just can't go back to that well every time. You can overstep with private harassment!
Letter: "Our subpoenas are not to the president. Just to 3d parties."
You just can't go back to that well every time. You can overstep with private harassment!
33/ ***Breyer*** shows that he is not buying Letter's argument here, and he sounds mad.
Punchy sharp question: "Your subpoenas are very broad and very burdensome on the Trump Organization. Far beyond tax returns. You are being dismissive of the burdens of these subpoenas."
Punchy sharp question: "Your subpoenas are very broad and very burdensome on the Trump Organization. Far beyond tax returns. You are being dismissive of the burdens of these subpoenas."
34/ I don't know what to predict, but it seems clear that the Court will not rule broadly in favor of the House, and rightly so. The House pushed their luck with a super overly broad argument, and it *should* backfire.
The question is how badly it will backfire.
The question is how badly it will backfire.
35/ Now Trump v. Vance:
Sekulow says that the grand jury can investigate a president, just cannot issue criminal process vs. president (or his documents). It does not matter if 3d party is holding his documents. Mentions "privilege." Unclear which.
Sekulow says that the grand jury can investigate a president, just cannot issue criminal process vs. president (or his documents). It does not matter if 3d party is holding his documents. Mentions "privilege." Unclear which.
36: Thomas asks for Founding era sources on presidential immunity.
Sekulow mentions Elsworth exchange.
That's not a lot to rely on. Seems like he stayed away from Hamilton and Federalist Papers, which is interesting, unless I missed it.
Sekulow mentions Elsworth exchange.
That's not a lot to rely on. Seems like he stayed away from Hamilton and Federalist Papers, which is interesting, unless I missed it.
37/ RBG: Historic understanding about the public is entitled to "every man's evidence."
Sekulw to RBG: "The president is not an ordinary man.
He is the only man who is an entire branch of government."
UNITARY EXECUTIVE ON HUMAN GROWTH HORMONES AND ACID.
Sekulw to RBG: "The president is not an ordinary man.
He is the only man who is an entire branch of government."
UNITARY EXECUTIVE ON HUMAN GROWTH HORMONES AND ACID.
38/
I wrote in the @TheAtlantic in 2018 about the risks of an overly broad set of subpoenas with pretextual legislative reasons.
The House still went with this bad strategy, and today Douglas Zletter doubled down on it.
Big mistake.
I wrote in the @TheAtlantic in 2018 about the risks of an overly broad set of subpoenas with pretextual legislative reasons.
The House still went with this bad strategy, and today Douglas Zletter doubled down on it.
Big mistake.
I wrote:
“Americans should be wary of changing our laws too abruptly just to investigate Trump. When the last law is down, as Robert Bolt wrote, the devil may turn round on you, and where would you hide? Some curbs seem necessary, to guard against future abuses.”
/39
“Americans should be wary of changing our laws too abruptly just to investigate Trump. When the last law is down, as Robert Bolt wrote, the devil may turn round on you, and where would you hide? Some curbs seem necessary, to guard against future abuses.”
/39
40/ I wrote 2018:
"Let’s be honest. Is [Congess] seeking Trump’s taxes b/c of an interest in the IRS’s methods? To see if he owes back taxes? It is far more likely about debts or financial ties that may compromise him, or whether he has links to money laundering."
"Let’s be honest. Is [Congess] seeking Trump’s taxes b/c of an interest in the IRS’s methods? To see if he owes back taxes? It is far more likely about debts or financial ties that may compromise him, or whether he has links to money laundering."
41/ Back to Trump v. Vance:
SG Noel Francisco puts lots of eggs in "specific/particular need" basket of Nixon cases.
A heightened standard.
But Breyer & Kagan hammer that this is a test for executive privilege from official duties, not private conduct.
SG Noel Francisco puts lots of eggs in "specific/particular need" basket of Nixon cases.
A heightened standard.
But Breyer & Kagan hammer that this is a test for executive privilege from official duties, not private conduct.
42/ SG Francisco attempts to merge executive privilege with investigation of private conduct, because investigations are still a burden on fulfilling executive power.
Another staggering inflation of the unitary executive theory to cover all conduct by a president as protected.
Another staggering inflation of the unitary executive theory to cover all conduct by a president as protected.
43/ Breyer and Kagan did a great job pushing back on these arguments, especially with Clinton v. Jones.
If the Court distinguishes Clinton v. Jones as civil, not criminal, to block a subpoena to a 3d party of private documents, it will be remarkable ideological gymnastics.
If the Court distinguishes Clinton v. Jones as civil, not criminal, to block a subpoena to a 3d party of private documents, it will be remarkable ideological gymnastics.
44/ Dunne for NY/Vance is doing so much better than Letter for House.
Clear, detailed answers. Smart to recognize fed court review of state prosecutors.
But he does share Letter's reluctance to clarify limiting principles. Both lawyers should have been better prepared.
Clear, detailed answers. Smart to recognize fed court review of state prosecutors.
But he does share Letter's reluctance to clarify limiting principles. Both lawyers should have been better prepared.
45/ The key for winning Roberts or any 5th vote would be to recognize a limit on Congress or states to prevent harassing, undermining, distracting, disabling a president.
Letter was a mess. Dunne is better, but surely he should acknowledge "special burdens" on a president.
Letter was a mess. Dunne is better, but surely he should acknowledge "special burdens" on a president.
46/ Alito follows up on these questions, with a good point about whether it matters if the state has general secrecy rules for grand juries. (Hinting more latitude for investigation if it will be secret).
Dunne says he thinks all states have grand jury secrecy.
Dunne says he thinks all states have grand jury secrecy.
47/ Now Alito is asking about prosecutors leaking materials to the media (the NY Times in particular).
Dunne tells THIS court he doesn't know of any practice of leaking. C'mon, man. Whitewater??
This is a legitimate concern. Don't be so dismissive.
Dunne tells THIS court he doesn't know of any practice of leaking. C'mon, man. Whitewater??
This is a legitimate concern. Don't be so dismissive.
48/ Sotomayor asks if the statute of limitations might be tolled to allow a later invesigation and prosecution.
Dunne says he is not aware of any way to stop the clock for statutory or equitable tolling of a criminal case.
Dunne is RIGHT:
slate.com/news-and-polit…
Dunne says he is not aware of any way to stop the clock for statutory or equitable tolling of a criminal case.
Dunne is RIGHT:
slate.com/news-and-polit…
49/ Dunne had an excellent with Kavanaugh.
A) Kavanaugh asked Dunne if there are Article II burdens, and what are they?
Dunne says yes, the President should not face _unreasonable_ distractions or bad faith distractions, says that fed court should and did review that here.
A) Kavanaugh asked Dunne if there are Article II burdens, and what are they?
Dunne says yes, the President should not face _unreasonable_ distractions or bad faith distractions, says that fed court should and did review that here.
B) Kavanaugh: One reason to permit civil subpoena but not criminal is that civil has a specific plaintiff asserting own individual rights; criminal case is a more general diffuse interest.
Dunne: Prosecutors are more limited by rules of conduct than private parties.
50/
Dunne: Prosecutors are more limited by rules of conduct than private parties.
50/
C) Kavanaugh: Would your argument give state prosecutors more latitude than federal prosecutors?
Dunne: No. Same standard. But Dunne artfully clarified and avoided saying state prosecutors would be covered by OLC memos, just same judicial limits.
Dunne: No. Same standard. But Dunne artfully clarified and avoided saying state prosecutors would be covered by OLC memos, just same judicial limits.
52/ Both cases legitimately could go either way, but I predict it will not be 5-4 for Trump on all practical questions.
This could be a rare case where bad oral argument has an effect. House botched it.
Roberts could allow narrow subpoenas limited to tax records. But who knows.
This could be a rare case where bad oral argument has an effect. House botched it.
Roberts could allow narrow subpoenas limited to tax records. But who knows.
