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Trump tax returns remain elusive after mixed high court argument

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Democrats may be as far as ever from seeing President Donald Trump’s tax returns after a U.S. Supreme Court argument suggested a legal fight over House subpoenas could extend for months.

Over three-plus hours Tuesday, the court gave mixed reviews to separate efforts by House committees and a New York prosecutor to subpoena Trump’s banks and accountants for his financial records. Most justices suggested they favored limits on Congress’ power to demand the president’s personal information, an approach that could mean a new round of lower court scrutiny.

The questioning indicated Trump isn’t likely to get the sweeping protection he is seeking from state grand jury subpoenas. But the justices also gave no indication they would give House Democrats the clear-cut victory they probably need to see the tax returns before the November election.

Chief Justice John Roberts, who could cast the pivotal votes, criticized a House lawyer for offering a “limitless test” of Congress’ power.

“Your test is really not much of a test,” Roberts said. “It’s not a limitation. And it doesn’t seem in any way to take account of the fact we’re talking about a coordinate branch of government, the executive branch.”

Democrats are trying to finally see the tax returns Trump refused to release as a candidate and then as president. Before Trump, every president from Jimmy Carter on made his returns public.

The court normally issues all its rulings by late June, but the coronavirus outbreak has upended the usual schedule and could push the subpoena cases into July.

Faithless electors

The subpoena cases were the highlight of the court’s first-ever telephone argument session, which concludes Wednesday with two cases about the Electoral College, the body that formally selects the president. At issue is whether states can stop “faithless electors” who try to cast a vote for someone other than the candidate who won their state’s balloting.

Most of the justices suggested in the subpoena cases they wanted to balance the competing interests of lawmakers, state prosecutors and the president.

“The question then boils down to: How can we both protect the House’s interest in obtaining information it needs to legislate but also protect the presidency?” asked Justice Brett Kavanaugh, a Trump appointee.

Justices Stephen Breyer and Elena Kagan, Democratic appointees who often strive for consensus rulings, asked tough questions of both sides. Breyer said he was worried that the House was seeking “a lot of information, and some of it’s pretty vague.”

“The fact that what I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman exactly the same questions, that bothers me,” Breyer said, referring to Joseph McCarthy, the Wisconsin senator whose anti-Communist crusades in the 1950s were premised largely on unsubstantiated charges against government officials.

‘10-ton weight’

Kagan told Trump’s lawyer, Patrick Strawbridge: “What it seems to me you’re asking us to do is to put a kind of 10-ton weight on the scales between the president and Congress, and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the president is concerned.”

At another point, however, Kagan said some of the House investigations were more focused than others, hinting that she might be willing to back only some of the subpoenas.

“When the Congress doesn’t seem to be looking into the president, but in a much broader topic, might there not be some heightened need for Congress to say why is it that they’re focusing on presidential records for that purpose?” she asked.

Trump’s two Supreme Court appointees also asked questions of both sides. Justice Neil Gorsuch asked Strawbridge, “Why should we not defer to the House’s view about its own legislative purposes?”

Other justices suggested they would divide along ideological lines. Justice Sonia Sotomayor, a Democratic appointee, said she saw a “tremendous separation of powers problem” with Trump’s position.

Justice Samuel Alito, a Republican appointee, said the House position would mean “no protection against the use of congressional subpoenas for the purpose of preventing harassment of a president.”

Thomas responds

The subpoenas seek years of Trump’s personal financial records, as well as those of the Trump Organization and his other businesses. They are directed to Trump’s accounting firm, Mazars USA, and his banks, Deutsche Bank AG and Capital One Financial Corp. The accountants and banks aren’t contesting the subpoenas and have said they will comply with their legal obligations.

House General Counsel Douglas Letter said that “not a single thing is required of the president or the White House.”

That brought a quick response from Justice Clarence Thomas. “I think we all know it’s about the president,” he said.

The Justice Department is largely backing Trump’s personal lawyers. In the House case, Deputy Solicitor General Jeffrey Wall told the justices that lawmakers can’t subpoena the president’s personal records without a clear showing that the information is needed for a legitimate legislative purpose.

In the grand jury case, Manhattan District Attorney Cyrus Vance Jr. is investigating whether the Trump Organization falsified business records to disguise hush payments to two women who claimed they had sex with Trump before he took office.

Absolute immunity

Trump contends the president has complete immunity from criminal subpoenas while in office, even if the document demands are directed to third parties. His personal lawyer in the New York case, Jay Sekulow, told the justices Tuesday that a president would be overwhelmed and distracted if every state prosecutor in the country could collect personal information.

That position drew little enthusiasm, even among the court’s conservatives. Gorsuch said he was having trouble distinguishing the 1997 Supreme Court ruling that allowed a sexual harassment lawsuit to proceed against then-President Bill Clinton.

“How is this more burdensome, though, than what took place in Clinton v. Jones?” Gorsuch asked Sekulow. “I guess I’m not sure I understand that.”

Carey Dunne, the general counsel of Vance’s office, told the justices that Trump’s assertion of total immunity has no basis in the Constitution or the nation’s history. He said a complete shield is especially inappropriate in a probe that doesn’t touch on the president’s official duties.

The Justice Department is making a narrower argument than Trump’s personal lawyers, saying the court doesn’t need to decide whether the president is absolutely immune from state criminal investigations. Solicitor General Noel Francisco told the justices Tuesday that Vance must show a “special need” for the materials, something the Trump administration lawyer said the district attorney hadn’t done.

‘Pandemic thing’

Sotomayor asked Francisco why it wasn’t enough for prosecutors to show that they have a credible suspicion of criminal activity and that the subpoena is reasonably tailored to advance the investigation.

“I don’t understand why that sort of standard is inadequate, especially for a proceeding that involves secrecy, like a grand jury subpoena,” she said.

But several justices struggled to understand exactly what test Dunne was proposing as an alternative to Francisco’s. Dunne argued that the Vance subpoena was proper under either standard.

Roberts wondered how a court should evaluate whether a subpoena imposed too much of a burden on the president.

“Is there supposed to be a hearing where he says, ‘Here’s what I’m doing: I’ve got this pandemic thing, you know. China is causing all sorts of trouble’?” Roberts asked. “You know, most presidents throughout their term have a pretty long to-do list.”

The cases are Trump v. Vance, 19-635; Trump v. Mazars, 19-715; and Trump v. Deutsche Bank, 19-760.

Bloomberg News