- michael barbaro
From The New York Times, I’m Michael Barbaro. This is “The Daily.”
- [music]
Today, in two historic cases on Tuesday, the Supreme Court debated the nature of presidential power, and who is entitled to Donald Trump’s personal records. My colleague, Adam Liptak, listened in.
It’s Wednesday, May 13.
- adam liptak
Hello, Michael.
- michael barbaro
Adam in a t-shirt — good lord.
- adam liptak
What has the pandemic wrought? If I went to court, I’d be wearing a suit.
- michael barbaro
Of course, of course. But like, the justices themselves, you’re wearing god knows what —
- adam liptak
I have the distinct suspicion that there were no robes on the justices today.
- [music]
- michael barbaro
Adam, set the scene for us on Tuesday at the Supreme Court. I’m not even sure it was at the Supreme Court, but set the scene.
- adam liptak
The court has been hearing arguments by telephone conference call, which is a new experiment. This is only the second week of it. This was the fifth time they did it. So at 10 ‘o’ clock in the morning, I dialed in.
- archived recording (court marshal)
The honorable, the chief justice, and the associate justices of the Supreme Court of the United States.
- adam liptak
I listened to the marshal of the court announce “Oyez, oyez, oyez” —
- archived recording (court marshal)
Oyez, oyez, oyez.
- adam liptak
And then she usually has a script admonishing people to draw near.
- archived recording (court marshal)
Supreme Court of the United States are admonished to give their attention, for the court is now sitting. God save the United States and this honorable court. [GAVEL]
- adam liptak
But she omitted that from the script because there’s nothing to draw near to. We were just listening in on a telephone conference call. Now, at the same time, this was quite a radical departure for the court, because there was live audio.
- michael barbaro
Right.
- adam liptak
Which everyone in the country could listen to in real time.
- michael barbaro
Right. Usually, we have to wait days to get that audio?
- adam liptak
Yeah, typically it comes out the Friday after the arguments which happen on Monday, Tuesday, Wednesday. So if we were still living in the pre-pandemic world, they would have not released audio till Friday. And that allowed us to listen into two cases, both involving subpoenas to President Trump, one from congressional committees, the other from prosecutors in Manhattan, both seeking his tax returns and all kinds of records concerning his business affairs. And that clash gave the public an opportunity, in real time, to see the justices in action.
- michael barbaro
OK, tell us about the first of these two cases. What’s the background?
- archived recording (john roberts)
The first case we will argue today is case 19-715, Donald Trump v. Mazars U.S.A.
- adam liptak
The first case concerns three different sets of subpoenas from House committees — the House of Representatives of course controlled by Democrats — seeking a variety of business records about President Trump, his children, his dealings with his bank, his accountants, his tax returns. You know, large troves of information that the president is fighting hard to protect.
- michael barbaro
And what was the original rationale from these congressional committees in seeking these very sensitive documents?
- adam liptak
They say they have oversight responsibilities. And they say that gathering this information will allow them to propose legislation on things like conflicts of interest.
- archived recording (john roberts)
Mr. Strawbridge —
- archived recording (patrick strawbridge)
Mr. Chief Justice, and may it please the court —
- michael barbaro
So how do the oral arguments unfold?
- adam liptak
Well, the first thing that happens, and this is also a recent innovation, the lawyers are given a couple of minutes of uninterrupted time to lay out their case.
- archived recording (patrick strawbridge)
The subpoenas at issue here are unprecedented in every sense. Before these cases, no court had ever upheld the use of Congress’s subpoena power to demand the personal records of a sitting president.
- adam liptak
So President Trump’s lawyer in the House subpoenas case, Patrick Strawbridge, starts by saying that these are unprecedented subpoenas, and the court should block them.
- archived recording (patrick strawbridge)
The rule that the court applies here will affect not only this president but the presidency itself. The court should deny the committees the blank check they seek and reverse the decisions below.
- adam liptak
His argument is that there’s no link between congressional responsibilities and what is being sought here.
- archived recording (patrick strawbridge)
The president’s personal papers are not related to anything having to do with the workings of government. And to empower the committees, to simply declare him a useful case study, is to open the door to all sorts of oppressive requests you could have.
- adam liptak
That, sure, Congress has some power to investigate in order to enact wise legislation. But that this was partisan harassment, that they don’t need President Trump’s tax records to make tax law — they wouldn’t need his medical records to decide how to reform the Affordable Care Act — and that this is a kind of dragnet fishing expedition.
- archived recording (patrick strawbridge)
The threat, in this case, of subpoenaing decades worth of papers, not only of the president, but of the president’s family members, of his children, of his grandchildren, as the House has done in this case, poses an obvious problem with respect to harassment and infringement upon the ability of the executive to discharge his duties.
- michael barbaro
So the argument here from Trump’s lawyer is that the idea that these documents are needed for legislative affairs and legislative production is basically a fancy cover for just wanting embarrassing documents about the president.
- adam liptak
That’s the argument, yeah.
- michael barbaro
And what is the response from the justices?
- adam liptak
Well, the justices respond one by one. In this new way of questioning, the justices ask a couple questions each, in order of seniority.
- archived recording (john roberts)
Justice Ginsberg?
- archived recording (ruth bader ginsberg)
Counsel, in so many of these prior cases, there was a cooperation. For example, tax returns. Every president voluntarily turned over his tax returns.
- adam liptak
The liberal justices are mostly skeptical of the president’s argument, and they point out that for most of our history, when there have been these kinds of clashes, the Congress and the president have worked things out, have found a way to accommodate one another. The president would turn over some, but not all, information. And Justice Elena Kagan says that what the president is asking for here —
- archived recording (elena kagan)
What it seems to me you’re asking us to do is to throw a 10 ton weight on the scales between the president and Congress.
- adam liptak
— and avoid that kind of accommodation.
- archived recording (sonia sotomayor)
And some of the subpoenas that Congress — through history, as far back as 1792, have asked for personal papers of the president while being president.
- adam liptak
Justice Sonia Sotomayor points out that there have been congressional subpoenas throughout our history, going back as far as Thomas Jefferson. This, she says, is different. This is easier.
- archived recording (sonia sotomayor)
We’re asking for his personal tax returns before he became president.
- adam liptak
She’s saying that the current case doesn’t even ask for the documents of the official duties of a sitting president. This is old news. This is what the president, as a private citizen, did.
- michael barbaro
So that’s the liberal justices, who seem to be skeptical of the president’s arguments. What are the conservative justices getting at in their questioning?
- archived recording
Thank you, counsellor. Justice Thomas?
- archived recording (clarence thomas)
Following up on the chief justice’s question, what if it was clear from those statements that you reviewed that their intention was actually to remove the president from office?
- adam liptak
The conservatives say that there have to be some limits. We can’t live in a world where every committee of Congress can, on a whim, require the custodians of a president’s records — his business records, his medical records — to turn them over for no good reason. And there have to be limits. There has to be a connection between legislative responsibilities and why the information is sought. So Justice Kavanaugh, for instance, said —
- archived recording (brett kavanaugh)
But I think everyone has explored with you that just about everything can be characterized, in terms of a subpoena, as pertinent to a legislative purpose.
- adam liptak
— that just about all information can somehow be said to be relevant to some piece of legislation.
- archived recording (brett kavanaugh)
And the question then boils down to, how can we both protect the House’s interests in obtaining information it needs to legislate, but also protect the presidency? How can the court balance those interests?
- adam liptak
And so the conservative side of the court was sensitive — and not only the conservative side of the court, because Justice Breyer also had some qualms in this area — about whether these very broad, some say dragnet, subpoenas go too far in what could be said to be harassment of the president.
- michael barbaro
And what about the lawyer for Congress, for the people seeking these records? What is his argument for the legitimacy of these subpoenas?
- archived recording (john roberts)
Mr. Letter?
- archived recording (doug letter)
Yes, Mr. Chief Justice, and may it please the court —
- adam liptak
So Doug Letter, the lawyer for the House, the House’s general counsel, says that they’ve laid out in great detail why they need these records. They say they’re investigating, for instance, President Trump’s foreign entanglements that might shed light on election interference.
- archived recording (doug letter)
There’s an obvious need to focus on the president’s financial records to determine if the president is subject to foreign leverage.
- adam liptak
They say that the president’s business records and tax records could inform what kind of conflicts of interest legislation the House might want to propose.
- archived recording (doug letter)
Do we need better laws about conflicts of interests? Do we need better laws about, for example, a president dealing in contracts with government agencies?
- adam liptak
And they say that they have general oversight responsibilities over the executive, including the president.
- michael barbaro
So at this point, there seem to be two debates going on. One argues that historical patterns show that these requests have happened all the time, and presidents have handed over these documents. The other is that Congress needs to really show that there’s a legislative purpose to have these documents. And I wonder if either of those questions is resolved, and what they tell us about the nature of the president’s power versus Congress’s?
- adam liptak
So I don’t think we had anything like a resolution of the question. And I think there are multiple outcomes that are possible in the House subpoenas case. But it does illustrate just how important these questions are, because it’s quite rare for the Supreme Court to weigh in on the responsibilities, duties of the other two branches. So this is a big separation of powers case, where on the one hand, you have Congress saying, we need this information to do our job, to make laws and move society forward. And on the other hand, you have the president, who says, I’m the head of a branch of the federal government, and I can’t be made to cooperate in handing over all kinds of sensitive material from my private business affairs for what looks to me to be like a partisan witch hunt.
- michael barbaro
And from what you could gather during these oral arguments, how eager, or uneager, are these justices to resolve that major question between those two branches of our government?
- adam liptak
You know, some are more eager than others. But the court as a whole didn’t seem to coalesce around any particular theory and may be looking for some kind of exit ramp. A likely scenario could be for the court to send it back down to the lower courts, to say, We’re not sure who’s right, but we think you lower courts were too sympathetic to Congress. Why don’t you have another cut at this using a stricter standard about whether Congress really needs these records?
- michael barbaro
Kicking it down to a lower court would be pretty anticlimactic for a major constitutional clash between Congress and the executive.
- adam liptak
Yes, speaking only as a journalist, that’s not my preferred outcome.
But whatever happens on the House subpoenas, there’s a second case also argued on Tuesday and there, the coalitions look quite different.
- [music]
- michael barbaro
We’ll be right back.
- [music]
- archived recording (john roberts)
We’ll hear argument next in case 19-635, Donald Trump vs. Cyrus Vance.
- michael barbaro
So Adam, tell us about this second case that was heard by the justices via conference call on Tuesday.
- adam liptak
Well, they concern the same kinds of documents, but the subpoena comes from a different source. It comes from the Manhattan D.A., Cyrus Vance Jr., which is conducting a criminal inquiry. And it’s looking into the hush money payments that President Trump, through his lawyer and fixer Michael Cohen, paid to two women who said they had affairs with him, affairs he denies. It’s a more straightforward case.
- michael barbaro
And why is it more straightforward than a congressional subpoena?
- adam liptak
There’s not a lot of precedent on congressional subpoenas, and particularly congressional subpoenas to the president. But there are leading precedents on criminal inquiries and civil lawsuits seeking information from the president.
- michael barbaro
I feel like you have mentioned those precedent cases in the past, and that they include, correct me if I’m wrong, President Clinton and President Nixon.
- adam liptak
That’s right. And so in two cases, the Supreme Court, and both of them unanimously, ruled against presidents seeking to withhold information. And in many ways, those cases were more intrusive than what was at issue here. President Nixon was required to turn over Oval Office tapes about his official conduct. President Clinton was made to sit for a deposition in a sexual harassment lawsuit brought by Paula Jones. Here, the records sought are in the hands of third parties, and don’t seem to impose anything like the same kind of burden as those other two cases.
- michael barbaro
And a third party in the Trump case would be an accounting firm, for example?
- adam liptak
That’s right, yeah.
- michael barbaro
So how did the oral arguments unfold in this case?
- archived recording (john roberts)
Mr. Sekulow?
- archived recording (jay sekulow)
Thank you, Mr. Chief Justice, and may it please the court —
- adam liptak
The president’s lawyer, Jay Sekulow, makes a very broad argument.
- archived recording (jay sekulow)
This court has long recognized that the president is not to be treated as an ordinary citizen. He has responsibilities. He is himself a branch of government. He is the only individual that is a branch of government in our federal system.
- adam liptak
He says that the president enjoys temporary immunity from even being investigated.
- archived recording (jay sekulow)
Our position is that the Constitution itself, both in structure and text, supports the position that the president would be temporarily immune from this activity, from a state proceeding, while he is the president of the United States.
- adam liptak
And Justice Thomas, the court’s most conservative member, seems unconvinced.
- archived recording (clarence thomas)
Yes. I’m interested in whether or not you can point us to some express language you think, at the founding, or during the ratification process, that provides for this immunity.
- adam liptak
— asking Sekulow where that immunity appears in the Constitution.
- michael barbaro
And what is Sekulow’s answer?
- archived recording (jay sekulow)
Well, there’s a couple —
- adam liptak
Sekulow cites some materials from the founding era.
- archived recording (jay sekulow)
There was a colloquy between Vice President Adams and Senator Ellsworth where they talked about process against the president, and they took the position that any process against the president would be constitutionally problematic. But the concern —
- adam liptak
But they don’t seem to get him very far down the road.
- archived recording (john roberts)
Justice Ginsburg?
- adam liptak
So the more liberal justices really have no patience for Sekulow’s arguments.
- archived recording (ruth bader ginsberg)
We have said, in the grand jury context, that the public has a right to every man’s evidence. Is it your position that the grand jury right to every man’s evidence is exclusive of the president?
- archived recording (jay sekulow)
Justice Ginsburg, it’s not that it excludes the president. The president is not to be treated as an ordinary citizen. And this is a temporary immunity. This is for while the president’s in office. And we think that —
- michael barbaro
OK, so that argument does not seem to be succeeding. So what other defenses is Sekulow are making here?
- adam liptak
Well, the fallback argument is that you should apply a really strict standard to subpoenas directed at the president’s records. And that you should only be able to do this if the information can’t be obtained any other way, if it’s critical to your decision about whether you’re going to charge the president or someone else with a crime. So that backup argument is almost certainly the ground on which the Supreme Court will decide the case, not the absolute immunity argument.
- archived recording (jay sekulow)
The decision would allow any D.A. to harass, distract, and interfere with a sitting president. It subjects the president to local prejudice that can influence prosecutorial decisions. At the —
- michael barbaro
I listened to this hearing, and I recall Sekulow basically saying, if we’re not careful, every local prosecutor in the country might start coming at the president of an opposite party. And that would be a nightmare.
- archived recording (jay sekulow)
You can’t just look at the one subpoena. It is the potential for 2,300 D.A.s, or just 1 percent of them, 23 D.A.s, issuing process against the president. But the concern —
- adam liptak
Right, but we do have some evidence that it hasn’t happened yet. The president has been in office for three years, and this is the one grand jury subpoena of this kind that I know of. And that local prosecutor in Nebraska would need to have some kind of jurisdiction over the president. But the Trump organization was not headquartered in Nebraska, it was headquartered in Manhattan.
- michael barbaro
So you’re saying, almost by definition, there will be very few local prosecutors with grounds to bring a case that involves a subpoena of the president.
- adam liptak
Right. But Sekulow says that the president’s time is really valuable, and we shouldn’t lightly impinge on it.
- archived recording (jay sekulow)
To require the president to have to respond to each and every state district attorney — that —
- archived recording (stephen breyer)
No he would hire you. And he’d hire a lawyer to list what the burdens are. That wouldn’t take a lot of time. And then he wouldn’t be burdened, because you’d go in and say what the burdens are. And if you’re right, you win that case. They are saying, the other side, there are no burdens here. Well send it back and let them figure out what they are.
- archived recording (jay sekulow)
I think that doing that establishes the problem with an analysis of a case by case analysis. For instance, in this very case, in this subpoena — found on page 118a and 19 of the petition appendix is a list of documents that are extensive. You would have to meet with the president of the United States. I mean, could you imagine, just for a moment, Justice Breyer, that I — and you said, let’s assume the president wanted to hire me. Then, I’m going to call the president of the United States today, and say, I know you’re handling a pandemic right now for the United States, but I need to spend a couple of — two to three hours with you going over a subpoena of documents that are wanted by, here, the New York County district attorney. I know you’re busy —
- michael barbaro
So he’s now making a very practical argument, not so much a constitutional one, that if the president is required to answer subpoenas from a prosecutor in Manhattan, that that could take up a lot of his time.
- adam liptak
Yeah, so it’s both a practical and constitutional argument. The president, as the head of the executive branch, should deserve some protection so that his time is not wasted on nonsense. But the Bill Clinton case, in which he was made to sit for a deposition, certainly suggests that some impingement on the president’s time is allowed, where the justice system can’t work otherwise. Justice Gorsuch makes pretty much this exact point.
- archived recording (neil gorsuch)
How is this more burdensome, though, than what took place in Clinton vs. Jones? I guess — I’m not sure I understand.
- archived recording (jay sekulow)
Well, I mean, there’s a big distinction between a defendant in a civil case, and a principal in a criminal case, here by the state district —
- archived recording (neil gorsuch)
Let me stop you there. Yes, there, they sought the deposition of the president while he was serving. Here, they’re seeking records from third parties.
- michael barbaro
So I’m hearing a lot of skepticism, from all the justices, to these arguments. It doesn’t seem like the lawyer for Cy Vance in Manhattan had a ton of work to do, but what was his argument?
- adam liptak
He said, yes, we recognize the president has important duties —
- archived recording (carey dunne)
— important duties. The other principle is that under our constitution, when a president acts as a private individual, he or she has responsibilities like every other citizen, including compliance with legal process.
- adam liptak
But it’s also true that no person is above the law. And you balance these things out. And a focused subpoena directed to, not the president himself, but to his accountants, in a legitimate criminal inquiry, is appropriate. And that message seemed to resonate with many of the justices.
- archived recording (carey dunne)
Thank you, Mr. Chief Justice.
- archived recording
Thank you, counsel. The case is submitted. [GAVEL]
- michael barbaro
It sounds like the court is leaning towards a ruling in this case, where Cy Vance, the Manhattan district attorney, will likely get the records he’s seeking from the president.
- adam liptak
I think a split decision, Michael, is fairly likely, so that Trump loses the Manhattan D.A. case, wins or at least gets a timeout in the House subpoenas case. And that has implications, because interestingly, if the Manhattan D.A. wins, it’s a grand jury subpoena. It goes to a grand jury. Grand juries are secret. So it could be that although Trump has to turn over the records, they’ll be shielded from public view even so.
- michael barbaro
And in that case you just outlined, Adam, the president’s tax records would remain secret.
- adam liptak
Yes, at least in the short term, yeah.
- michael barbaro
Adam, on a slightly more practical note, it occurs to me that the justices are going to be ruling in both of these cases at the end of their term. Typically, it’s June, July, which happens to be the height of the presidential campaign. And the presidential campaign involves the person at the center of these two cases, President Trump. If they side against the president, that would mean public release of pretty embarrassing documents. If they side for him, it means those documents are largely going to be shielded. I have to imagine the justices understand the context in which they’re going to be making these rulings.
- adam liptak
Oh, I think they’re well aware of it, and they might have some reason to want to duck the issue in order not to be playing a role in the presidential election. I also think the court will be sensitive to charges that it’s acting in a partisan way, so it might like to have a split decision in which Trump wins one and loses one. And there are ways in which you could do that and send a message about the independence of the court, and hand Trump a loss in the grand jury case, but does not deliver to the American public information that some voters would like to have in deciding whether to vote for or against President Trump.
- [music]
- michael barbaro
A really, potentially, very interesting outcome.
- adam liptak
Yeah, it’s one of many, one of many. We’ll see in June or July how right these predictions proved to be.
- michael barbaro
Well, we really do enjoy holding you accountable for these predictions, so we will do that.
- adam liptak
Well, you know what I hope to be? Right.
- michael barbaro
Well, Adam, thank you very much.
- adam liptak
Thank you, Michael.
- [music]
- michael barbaro
We’ll be right back.
- [music]
- michael barbaro
Here’s what else you need to know today.
- archived recording (elizabeth warren)
So I’d just like to hear your honest opinion. Do we have the coronavirus contained?
- archived recording (anthony fauci)
Senator, thank you for the question. Right now, it depends on what you mean by containment. If you think that we have it completely under control, we don’t. If you look —
- michael barbaro
During a Senate hearing on Tuesday, two of the federal government’s top health officials painted a grim picture of the months ahead, warning that the U.S. has not contained the pandemic, and that reopening the country too quickly could lead to a new wave of infections.
- archived recording (anthony fauci)
If we do not respond in an adequate way when the fall comes, given that it is without a doubt that the infections will be in the community, then we run the risk of having a resurgence.
- michael barbaro
The two men, Dr. Anthony Fauci and Robert Redfield of the C.D.C., offered a far bleaker diagnosis than President Trump, who has called for a swift reopening, and has predicted a quick victory over the virus.
- archived recording (rand paul)
So I think we ought to have a little bit of humility in our belief that we know what’s best for the economy. And as much as I respect you, Dr. Fauci, I don’t think you’re the end all. I don’t think you’re the one person that gets to make a decision.
- michael barbaro
During the hearing, Republican Senator Rand Paul of Kentucky pressed Fauci on why the country should trust his judgment.
- archived recording (anthony fauci)
I have never made myself out to be the end all and only voice in this. I’m a scientist, a physician, and a public health official. I give advice according to the best scientific evidence. I don’t give advice about economic things. I don’t get advice about anything other than public health.
- [music]
- michael barbaro
That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.