In the Mazars oral arguments, Trump's attorney is arguing that Congress lacks the power "to inquire into the private affairs of any individual."
There is no support for this that I am aware of, either in the Court's prior decisions or actual congressional practice.
There is no support for this that I am aware of, either in the Court's prior decisions or actual congressional practice.
Sigh.
Strawbridge, for Trump, keeps conflating "presidential records" and "Trump's records." Sotomayor finally calls him on it.
Gorsuch: Why should the Court not defer to Congress's representations about its legislative needs?
Strawbridge's response is the same as essentially every response he's given today: because the President is extra special and normal rules don't apply.
Strawbridge's response is the same as essentially every response he's given today: because the President is extra special and normal rules don't apply.
SG is up for its 10 minutes; Wall opens by arguing that the House is seeking records from "years before" Trump ever ran for office.
Whether or not this point is relevant, it's also false. Trump ran for president in 2000. The records requests don't go back nearly that long.
Whether or not this point is relevant, it's also false. Trump ran for president in 2000. The records requests don't go back nearly that long.
Trump's counsel and Office of the Solicitor General are playing a version of good cop/bad cop in these oral arguments, only it's advocate of unreasonable extremist position/advocate of a shaky position that is nonetheless made to seem reasonable in comparison.
SG is doubling down on "the President is extra special, and even things he did before he was President are retroactively imbued with his Presidential specialness" argument.
Kagan points out that the President's and SG's briefs never actually explain why, in specific terms, these subpoenas will cause damage the Office of the President, and asks him to describe the actual harm here. Wall says words, but never really answers.
Gorsuch asks if it would be sufficient for House to make these requests while specifying it is considering making all presidential candidates disclose their tax records.
Wall seems to concede that would be sufficient -- so I guess the House's power is a game of Mother May I?
Wall seems to concede that would be sufficient -- so I guess the House's power is a game of Mother May I?
Roberts asks Letter, for the House, whether there are any subjects beyond the House's potential legislative subpoena authority.
Feel like Letter missed a good opportunity to offer up a hypo about Congress not being able to investigate how to quarter soldiers in private homes...
Feel like Letter missed a good opportunity to offer up a hypo about Congress not being able to investigate how to quarter soldiers in private homes...
As it happens, there's an amicus brief before the Court that Thomas may want to review, if he's curious to learn more about these interesting and important historical questions he's raising: supremecourt.gov/DocketPDF/19/1…
A lot of the argument today, as highlighted by Alito's questions now, has been dancing around the fact that all these claims of "harm" or "harassment" to Trump never actually specify the nature of that harm or harassment, or why it rises to the level of a constitutional concern.
Sotomayor is now trying to drill down on what impermissible harassment/exposure might look like in this context, and offers up the example of a Congress who seeks to craft general healthcare legislation and, pursuant to that, seeks the President's personal medical records.
Kagan following on that thread as well: "You said a subpoena cannot impair the President's ability to carry out his constitutional function... that's what we should be looking to."
This is the true issue. The President has no constitutional protection against feeling harassed.
This is the true issue. The President has no constitutional protection against feeling harassed.
"How can we protect the House's interest in obtaining info it needs to legislate, and also protect the presidency?", Kavanaugh asks, simply assuming that Trump's desire to not feel harassed has the same constitutional weight as Congress's authority to enact legislation.
It is absurd how the conservative Justices have asked question after question today about how Congress's constitutional powers can be balanced against the grave risk that Congress's use of those powers will make the President feel like Congress is being mean to him.
Now Roberts is doing it: "How do you measure harassment in a case like that?", he asks about a hypothetical request.
Letter answers the question that should have been – but was not – asked, by focusing on whether it would interfere with the office of the presidency's operations.
Letter answers the question that should have been – but was not – asked, by focusing on whether it would interfere with the office of the presidency's operations.
Thomas joins in, doubling down on the idea that the real concern here is separate from the President's ability to carry out the constitutional duties of his office, but rather some other kind of amorphous presidential right that no one will actually name.
The conservative Justices seem to think the President has a constitutional right to be free of Congress taking actions that might be damaging to his personal political interests, but they won't make it explicit – they just hide behind repeated invocations of "harassment."
😬
Sekulow up in Vance, with a nice bookend to Trump's position in Mazars: not only is everything the President did before he was President off-limits to Congress, any criminal activity the President has or is now engaged in is similarly off-limits during duration of his presidency.
Re: Mazars...
Sekulow: "The President is not to be treated as a ordinary citizen. He is himself a branch of government. The Constitution itself supports that the President is immune from criminal process while he is the President."
Trump's position would appear to be that the President is free to commit any crime he wants to commit, as long as that crime has a statute of limitations that will expire before he's out of office.
Alito sets up a softball for Sekulow: wouldn't you say if the subpoena seeks records about a third party's criminal conduct that could not be prosecuted by the time the President left office, wouldn't that be permitted?
Sekulow rejects the softball, says nope, wouldn't matter.
Sekulow rejects the softball, says nope, wouldn't matter.
Sotomayor: *long detailed question about the nature and source of the constitutional argument he's making*
Sekulow: "Trump is a branch of government, he is the President."
Sekulow: "Trump is a branch of government, he is the President."
Kagan: *long detailed question about whether there's a way to reconcile this issue with the maxim that no man is above the law, including the president*
Sekulow: No, any criminal enforcement activity by the states that implicates the President's interests "should be prohibited."
Sekulow: No, any criminal enforcement activity by the states that implicates the President's interests "should be prohibited."
These arguments about whether state criminal enforcement activity can touch on the President's interests are bizarrely divorced from the reality that the President is also the current owner of a shady international real estate brand licensing company with money laundering ties.
The Solicitor General is arguing that recognizing the legality of something would result in that something occurring on a vast and overwhelming scale to the point of undermining the Constitution, when in fact that something has happened exactly one time in 232 years.
Sekulow, Solicitor General: The President is a busy busy man, he is far too busy and too important to endure the burden of having criminal law apply to him.
Trump: *spends the morning furiously retweeting Boomer memes*
Trump: *spends the morning furiously retweeting Boomer memes*
Kavanaugh, in a shift from his questions in Mazars, is now pushing the Solicitor General to identify the specific constitutional harm that he believes is implicated here.
And the Solicitor General answers the exact same way Sekulow, Strawbridge, and Wall answered questions of this nature: by citing to a nonspecific risk that it will cause Trump to be annoyed
