Thread by @bgreener1

s/o to Justice Breyer, who is screaming at Trump's lawyers in the #TrumpTaxReturns case currently being heard in #SCOTUS

“it's difficult to imagine a scenario" where the power applies is such a weak argument. Let's not "imagine" anything - in this extraordinary case of obstruction, that reaches the upper limit of imagination, what applies? #TrumpTaxReturns #SCOTUS

Also, Trump's lawyer is currently arguing that Congress has "not very much" and "very limited power" to encroach upon the presidency. If that was true, why is this case even being heard? Wouldn't there be abundant caselaw saying as such?

No. There's not. #TrumpTaxReturns #SCOTUS

Justice Sotomayor is right - this case presents the premier separation-of-powers issue AND there's plenty of precedent saying subpoena's are considered inherently valid pursuant to their legislative power. #SCOTUS #TrumpTaxReturns

Sotomayor calls out the lie here - Trump lawyers continue to muddy the waters that these are “Presidential" tax returns. They're not. They're personal tax documents held by a private entity. #TrumpTaxReturns #SCOTUS

Trump lawyers asking #SCOTUS to ignore its precedent because, in their words, following precedents would “tip the scales to Congress." #TrumpTaxReturns

"The fact that they're seeking personal documents does not mean they're not targeting the President" is PRECISELY the type of oversight contemplated by the legislative oversight power. #SCOTUS #TrumpTaxReturns

Justice Gorsuch asks "why is this subpoena not supported by a legislative need?" #SCOTUS #TrumpTaxReturns

Trump’s lawyer says there are three reasons :
1) Congress hasn't been "specific enough” with exactly how they'd use the info

Does not give other reasons. #SCOTUS #TrumpTaxReturns

Onto Trump's second lawyer.

“If you look at the subpoenas, they make clear that they are not for a legislative purpose." But this ignores that Congress has BOTH oversight and legislative functions.

#SCOTUS #TrumpTaxReturns

Both of Trump's lawyers have now argued that the purpose of the subpoenas are to expose wrongdoing. Let's say that's true - does that exposure support potential legislation to prevent wrongdoing in a future POTUS? That's the question (if hypo is valid)

#SCOTUS #TrumpTaxReturns

Justice Ginsburg essentially just made that argument and compares Congress to a beat officer and these subpoenas as something similar to a Terry stop.

#SCOTUS #TrumpTaxReturns

Trump lawyer now arguing that subpoenas to a third party would overly distract and inhibit POTUS from his executive function.

#SCOTUS #TrumpTaxReturns

"Why not apply the standard that we apply to every other individual in the United States" when they get a subpoena?

#SCOTUS #TrumpTaxReturns

Trump lawyer answers Justice Breyer “these subpoenas MUST be in furtherance of legislative function" while saying that Congress CAN get at Presidential documents, pursuant to a (non-existent) heightened standard.

#SCOTUS #TrumpTaxReturns

Justice Alito asks Trump lawyer to actually apply the standard he has (not) laid out.

#SCOTUS #TrumpTaxReturns

Trump lawyer again disregards any possibility that investigation of wrongdoing can inform legislation.

#SCOTUS #TrumpTaxReturns

The elephant in the room: Congress could mandate that every Presidential nominee disclose x number of years of prior tax returns as soon as they declare for the Presidency.

#SCOTUS #TrumpTaxReturns

Trump lawyer argues that investigation of prior actions by a President pose “harassment" and other "very troubling issues" for a President.

Uh, yeah. But that means that anything POTUS does prior to election is off-limits? What?

#SCOTUS #TrumpTaxReturns

Trump lawyer: "These subpoenas, taken in aggregate, harm the institution of the President"

#SCOTUS #TrumpTaxReturns

I prosecute cases everyday and imposing a burden for exacting specificity on subpoenas is such a wild burden to place upon the party executing that subpoena power that I cannot begin to comprehend where they get that idea from.

#SCOTUS #TrumpTaxReturns

Now Trump's lawyer is arguing that Congress doesn't understand the separation-of-powers problem their subpoenas bring about.

Not sure about that.

#SCOTUS #TrumpTaxReturns

Now onto the difference between Whitewater subpoenas and the 200 years of non-analogous subpoenas.

#SCOTUS #TrumpTaxReturns

Gotta say, so far both of Trump's attorneys have been hammered by the panel. Big harm and lots of skepticism from the Justices.

#SCOTUS #TrumpTaxReturns

Onto #Congress lawyers. Citing specific pages of their brief where Trump lawyers argued didn't exist.

#SCOTUS #TrumpTaxReturns

Congress’ lawyer now being tested on their proposed test vis-a-vis Congress' broad legislative power.

"Do you have any alternative to that limitless test of an [adjacent] branch of government?”

#SCOTUS #TrumpTaxReturns

Answer to the Chief Justice that no argument can be made that this subpoena would inhibit the executive function because they are subpoenas for records held by a 3d party. Argues Trump has never seen these records and never does his taxes.

#SCOTUS #TrumpTaxReturns

Justice Thomas is asking for historical context for congressional history of subpoenaing private parties.

Congress' lawyer cites the history outlined in the Watkins case.

#SCOTUS #TrumpTaxReturns

Justice Ginsburg asks for reasons NOT related to arresting a Congressional rival.

Congress responds that there is no reasonable claim that harassment is sole purpose of subpoenas and that courts can address such allegations

#SCOTUS #TrumpTaxReturns

Congress now arguing off its brief again - Congress has changed since founding that delegated subpoena authority was granted to Committee Chairs who exercise Congress' valid subpoena power.

#SCOTUS #TrumpTaxReturns

Justice Alito asks how courts could possibly resolve cases like this.

Congress' lawyer answers that the Jones case explicitly says Courts are here to resolve such questions.

#SCOTUS #TrumpTaxReturns

Alito answers "that's not much protection, is it?”

Answer: subpoenas are to third party

#SCOTUS #TrumpTaxReturns

Justice Alito asking which constitutionally-based privileges apply to subpoenas that go out to a third-party.

A: depending on specific circumstances, national security privileges could apply.

#SCOTUS #TrumpTaxReturns

Justice Alito asks a great question whether subpoenas could go out for financial records for a President's family members.

A: investigation in this case goes along with a wide-ranging investigation into the financial services sector inclusive of POTUS

#SCOTUS #TrumpTaxReturns

Congress lawyer continues: there is an obvious need for foreign intelligence services committee to understand what type of person they are dealing with as possible head-of-state. Tax returns provide such insight.

#SCOTUS #TrumpTaxReturns

Justice Sotomayor: “Was the breadth of the subpoenas addressed below?”

A: Yes, those were fully litigated below.

#SCOTUS #TrumpTaxReturns

Justice Kagan asks whether these subpoenas "could" impair the POTUS in his function? States that's what Trump's lawyers argued here.
#SCOTUS #TrumpTaxReturns

A: “That argument was not made anywhere in the DOJ brief. POTUS could not be impaired by a 3d party subpoena." Goes on to say Trump has never seen these documents.

#SCOTUS #TrumpTaxReturns

(having not read the briefs, bringing this up for the first time without any precedent in the briefs would be an insane subversion of how things are done)

Justice Gorsuch asks for limiting principle re: subpoenas to investigate possible wrongdoing.

A: I share your concerns and none of the subpoena recipients have claimed a burden by these subpoenas

#SCOTUS #TrumpTaxReturns

A: while congress cannot prosecute, they can investigate possible criminality in order to pass criminal statutes.

(This is the exact legislative function that is the turning point of the case)

#SCOTUS #TrumpTaxReturns

Justice Kavanaugh: ”How can we both protect the House's interest while protecting the Presidency? Why not deploy the ‘demonstrably critical' standard?”

(good Q)

A: I don't know how that standard could be used without violating separation of powers

#SCOTUS #TrumpTaxReturns

Justice Kavanaugh: That's the tried and true method for executive privilege cases, though, right?

A: Here, we're not dealing with that privilege at all. "It's difficult to see how these subpoenas could ever come within that [privilege].”

#SCOTUS #TrumpTaxReturns

Justice Kavaunaugh: What about medical records?

A: Those wouldn't apply to legislative purpose.

JK: Why not? Why not to healthcare legislation, in your view?

A: I don’t see a way personal medical records of the president impact broad hc legislation

#SCOTUS #TrumpTaxReturns

Chief Justice says there's time for additional questioning.

#SCOTUS #TrumpTaxReturns

Chief Justice asks Congress' lawyer to elaborate on why this is not presidential harassment.

A: It would come down to the specific instance.

#SCOTUS #TrumpTaxReturns

A: If there's a massive number of subpoenas from Congress to the White House, to the point that WH only has capacity to answer subpoenas, that would be enough.

#SCOTUS #TrumpTaxReturns

Justice Thomas asks for specificity. What if every law enforcement entity subpoena'd?

A: That would be too much - but all of these subpoenas are to a third party. “None of these subpoenas go to the President.”

Thomas: “I think all of us know this is about the President.”

Justice Breyer expresses grave concern over burden - that 3d party has to ask questions of the concerned party (here: POTUS). Those concerns go far beyond tax returns.

#SCOTUS #TrumpTaxReturns

A: “Nobody in this case has raised a privilege claim. No claim has been made regarding burden. One of the concerns in this case is money laundering. What we're doing here is exactly what Congress does when it looks at the financial services sector.”

#SCOTUS #TrumpTaxReturns

Justice Alito asks whether non-financial subpoenas of a political rival that are pursuant to a legislative purpose would be valid?

A: I don't know an example of that, but seems to be a valid subpoena.

#SCOTUS #TrumpTaxReturns

Justice Sotomayor asks again about subpoenas for personal information.

A: subpoenas for personal papers of the President go back to founding of republic.

#SCOTUS #TrumpTaxReturns

Justice Kavanaugh expresses concern for a low standard opening the subpoena floodgates to future POTUS’.

A: That's exactly what this Court did in Clinton v. Jones, saying "courts are still here" to mediate disputes. More concerned w/ privileges.

#SCOTUS #TrumpTaxReturns

A: if, contrary to what has happened in the past, there are situations where POTUS ability is undermined by expansive subpoenas, “thank god the courts are here" to mediate.

#SCOTUS #TrumpTaxReturns

Congress' attorney asked to finish his argument. Now onto rebuttal by DOJ.

#SCOTUS #TrumpTaxReturns

DOJ: The logical conclusion is that every single person in the POTUS orbit would be subpoena'd under Congress' theory. "Telling that he cannot provide limit here”

#SCOTUS #TrumpTaxReturns

DOJ: Cannot tie any particular legislative proposal to these subpoenas. "This is an attempt to eviscerate separation of powers."

#SCOTUS #TrumpTaxReturns

DOJ: "These subpoenas are overreaching. The decisions below should be reversed."

#SCOTUS #TrumpTaxReturns

Okay. Phew. Very interesting argument!

Seems like Congress was on much firmer ground here. DOJ arguments that these were overreach got absolutely hammered by the panel. That said, "slippery slope" arguments are effective with conservative Justices.

#SCOTUS #TrumpTaxReturns

Seems to me the case turns on the difference between subpoena addressed to 3d party vs. POTUS himself and how big the Court views that gulf (real or not) between the two.

Congress' argument that Trump never sees his taxes is very good.

#SCOTUS #TrumpTaxReturns

Wild that DOJ/Trump lawyers would bring up "burden" for the first time at oral argument in front of #SCOTUS. Wild, if true.

Reason they didn’t? Because they got absolutely dunked on with the fact that subpoenas are to an entirely different person than POTUS.

#TrumpTaxReturns

Now, we anxiously await the decision.

This thread blew up a bit. Hi everyone! I won't reply to your replies, but I love you nonetheless.

#SCOTUS #TrumpTaxReturns