While hearing a major case Tuesday on Congress’ ability to subpoena President Trump’s financial records, several justices on the Supreme Court zeroed in on the question of whether the U.S. House believed it had any limits on its power to issue legislative subpoenas.
Doug Letter, the general counsel for the House, was subjected to brutal lines of questioning on this topic from Justices Samuel Alito, Brett Kavanaugh and Neil Gorsuch.
Chief Justice John Roberts — who had shown some skepticism for Trump’s arguments in the case — also grilled Letter on this point.
Even Justice Stephen Breyer, of the court’s liberal wing, seemed troubled by the implications that the House’s stance would have on future presidencies.
“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.
Faced with a tough hypothetical posed by Justice Kavanaugh, Letter wouldn’t completely close the door on the possibility that the Congress could seek a President’s medical records for a legislative purpose.
In his closing remarks, Letter tried to shift the court’s focus away from its concerns about future hypotheticals.
“We ask the court to focus on the specific subpoenas in this case because we are not dealing with ‘what if’s’ here,” he said.
The case was a consolidation of two lawsuits — Trump v. Mazars and Trump v. Deutsche Bank — brought by Trump in his personal capacity challenging House committee subpoenas of his financial records from both his accounting firm and his banks.
In both cases, he’s lost at both the district and appellate court levels. The lower courts rejected Trump’s attacks on the subpoenas’ legitimacy, prompting Trump to appeal them to the Supreme Court late last year. The Justice Department filed a friend-of-the-court brief backing Trump’s position, and U.S. Deputy Principle Solicitor General Jeff Wall also participated in Tuesday’s arguments.
Trump — who was represented at the oral arguments by Patrick Strawbridge — and the Justice Department are arguing that the House lacked a legitimate legislative purpose in issuing the subpoenas, making then invalid.
When it was Letter’s turn to answer the justices’ questions, Roberts kicked it off with a question about this point.
“Could you give a plausible example of a subject that you think is beyond any legislation that Congress could write?” Roberts asked.
Letter pointed to some of the court’s previous jurisprudence on Congress’ subpoena power, but stopped short of providing Roberts the specific example he was looking for. Roberts expressed concerns that the House wasn’t offering a test that the court could apply to make sure Congress didn’t go overboard with its subpoena power.
When it was her turn for questions, Justice Ruth Bader Ginsburg gave Letter an opportunity to opine on the difference between using a subpoena to harass a president and using one for the consideration of legislation.
But when Justice Samual Alito was up, he said he was “baffled” by Letter’s responses to Ginsburg, as he hammered Letter on what courts can do to prevent harassment of a president by subpoenas.
“Your final answer was that the courts can’t take care of that,” Alito shot at Letter.
Other liberal justices threw Letter more softballs, teeing up opportunities for him to argue that harassment wasn’t the goal in the current case.
Justice Neil Gorsuch, however, sharpened the discussion by comparing the issue to the prosecutorial principle of investigating crimes instead of investigating people. Then came Justice Kavanaugh, who referred to the previous justices’ questions and the concerns about a “limitless authority and how to deal with that.”
He asked specifically about the potential for Congress to subpoena a President’s medical records.
Letter conceded that medical records would “almost always” not be pertinent to a legislative purpose. But he refused to rule out the situation entirely, citing the 25th Amendment, which provides a mechanism for removing from office a President who is suffering from serious physical or mental health issues.
Recognizing some limits on Congress’ legislative powers could pose a slippery slope for Letter, as the House is arguing that it is not the court’s place the probe the intent of a congressional subpoena as long as there is some legislative purpose that could be connected to it.
However, Letter’s squirming may give conservative justices — particularly potential swing votes like Roberts or Kavanaugh — an out for ruling against the House even if they are also uncomfortable with the expansive arguments Trump is making in the case.
In a troubling sign for Letter, Breyer voiced concerns that the subpoenas were burdensome for a President if they were being issued to third parties like his accounting firm or banks, bringing up the McCarthy comparison.
At the end of the oral arguments, Strawbridge seized the topic one last time, pointing specifically to the medical records hypothetical.
“I thinking that’s very telling because there are no limits to their theories,” Strawbridge said.
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