Wednesday, May 13, 2020

Something to Know - 13 May

There was a great deal of newsworthy events that took place yesterday.  It was impossible to read, watch, and review all, so for me, I need to take what ever bits and pieces of opinion on each one, and settle for that.  There was Fauci, and the Senate hearing, and then there was the Supreme Court oral arguments on subpoenas to financial agencies such as Deutsche Bank and related groups on Trumps financial records.   On the latter one, I was particularly interested, but I did not have the time or patience to sit through 2 plus hours of C-Span audio recordings.  So, here is the next best thing, and I have to admit that I have not read this yet, but I will find time later this afternoon to do so.  Maybe you might find it worth reading:

Supreme Court Hints at Split Decision in Two Cases on Obtaining Trump's Financial Records

A majority of justices seemed skeptical of an effort by three House committees, but they seemed more sympathetic to the argument of the Manhattan district attorney.

By Adam Liptak
Published May 12, 2020
Updated May 13, 2020, 6:14 a.m. ET

WASHINGTON — The Supreme Court heard more than three hours of arguments on Tuesday on the powers of the presidency and whether they protect President Trump from the prosecutors and House committees seeking to obtain troves of information about his business affairs.
The court considered two sets of cases, and there was a strong possibility of a split decision.
A majority of the justices appeared skeptical of Mr. Trump's argument, in response to a subpoena from the Manhattan district attorney, that he was absolutely immune from criminal investigation while he remained in office. But the court seemed more receptive to Mr. Trump's argument that the three House committees had asked for too much information for reasons unrelated to their legislative responsibilities.
Should the court order release of the president's tax returns and other financial information in response to the House subpoenas, the records would almost certainly be made public and voters could consider them in deciding whether to re-elect him in November. The records may provide insight into Mr. Trump's business practices, foreign entanglements and hush-money payments.
But if the Manhattan prosecutors prevail, the records would not immediately be made public under the secrecy rules that apply to grand juries.

Because of the coronavirus, the court heard the arguments by telephone, an experiment that started last week. The justices asked their questions one at a time, in order of seniority, which gave the arguments a stilted, halting quality and made them harder to assess than the free-for-alls that are commonplace when arguments are held in the courtroom.
The court's ruling, expected by July, could require disclosure of information the president has gone to extraordinary lengths to protect. Or the justices could rule that Mr. Trump's financial affairs are not legitimate subjects of inquiry.
But some of the justices' questions raised a third possibility: that the court could return the cases to lower courts for reconsideration under stricter standards. That would have the incidental effect of deferring a final decision beyond the 2020 presidential election.
Michael C. Dorf, a law professor at Cornell, said the two sets of cases could have different outcomes.
"The congressional cases appeared to split the justices on ideological lines, with the possible exception of Justice Breyer, who seemed genuinely concerned about excesses against future presidents," Professor Dorf said, referring to Justice Stephen G. Breyer. "There appeared to be more cross-ideological agreement in the New York grand jury case."

Justice Breyer said that he was concerned about the presidency rather than a particular president, recalling Senator Joseph R. McCarthy's investigations of supposed communist infiltration of the government in the 1950s.

"What I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman," Justice Breyer said.
There was no doubt that the questions before the court were momentous and consequential — for Mr. Trump, for the justices, for the separation of powers among the three branches of the federal government and for the relationship between local officials and the president.
"The subpoenas here are unprecedented in every sense," said Patrick Strawbridge, the lawyer representing Mr. Trump in the cases on inquiries from Congress, Trump v. Mazars USA, No. 19-715, the case the court heard first.
Several justices disputed that, saying the Watergate investigation of President Richard M. Nixon and the Whitewater investigation of President Bill Clinton provided apt analogies. Both presidents lost unanimous Supreme Court cases in which they sought to withhold information.
"History and practice matter quite a bit in separation of powers cases," Justice Brett M. Kavanaugh said.
The justices returned repeatedly to those precedents: United States v. Nixon in 1974 and Clinton v. Jones in 1997.

In the Nixon case, the Supreme Court unanimously ruled that he had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting claims of executive privilege. In the Clinton case, the court unanimously allowed a sexual harassment suit against the president to proceed, discounting concerns that it would distract him from his official responsibilities.
Several justices said those two cases posed problems for Mr. Trump's position in the second case, Trump v. Vance, No. 19-635, resulting from the Manhattan district attorney's request for business records in a criminal inquiry. If Nixon was required to turn over information about his official conduct in a criminal case, they said, why should Mr. Trump be able to shield records of his private conduct?
"As far as the impact of the president is concerned, I think there's no case more dramatic than the Nixon tapes' devastating impact on the president," Justice Ruth Bader Ginsburg said. "He resigned from office. But yet that was OK. So I really don't get it."
And if Mr. Clinton was required to provide a deposition in the sexual harassment case, several justices said, why should Mr. Trump be able to avoid the lesser burden of allowing third parties to provide information to prosecutors?
"How do we avoid the conclusion there," Justice Neil M. Gorsuch asked, referring to the Clinton case, "that the president wasn't subject to some special immunity but here is?"
"There," said Justice Gorsuch, who was appointed by President Trump, "they sought the deposition of the president while he was serving. Here, they're seeking records from third parties."
The first case, concerning subpoenas from the House committees, did not feature such obvious precedents, and the justices' questions concerning them mostly reflected their usual inclinations. The more liberal members of the court for the most part were skeptical of Mr. Trump's arguments, and the more conservative ones said they were worried about opening the door to partisan harassment of the president.

Chief Justice John G. Roberts Jr. suggested that the case was in one sense routine. "It sounds like at the end of the day," he said, "this is just another case in which the courts are balancing the competing interests."
Justice Breyer, a member of the court's liberal wing, also seemed inclined to strike a balance in the cases concerning the House subpoenas, expressing dismay at their breadth and the burdens they imposed.
Would you like recommendations for more stories like this?
"They apply to 15 Trump-affiliated entities," he said of the subpoenas. "They ask for all documents related to opening of accounts, due diligence, closing, requests for information by other parties, et cetera. Now that's a lot of information, and some of it's pretty vague."
Justice Sonia Sotomayor said congressional inquiries into foreign influence over American elections were doubtless proper. But she and Justice Kavanaugh indicated that a hypothetical subpoena for the president's medical records would be out of bounds.
Justice Elena Kagan said there was a reason for the dearth of precedents relevant to the House subpoenas: Congress and the president had in the past worked out their differences through informal accommodations.
"What it seems to me you're asking us to do," she told Mr. Strawbridge, "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."
Mr. Strawbridge responded that "these subpoenas fail every hallmark of a legitimate legislative investigation."

Jeffrey B. Wall, a lawyer for the Justice Department who argued in support of Mr. Trump in the case on the House subpoenas, made a more limited but still sweeping argument. "You can't proceed against the president as against an ordinary litigant," he said. "The potential to harass and undermine the president and the presidency is plain."
Douglas N. Letter, the general counsel of the House of Representatives, said the president's arguments were surprising in their boldness. "History really matters here," he said, "and it shows that the arguments being made here by President Trump astonishingly ask you to ignore a massive amount of history."
The arguments gave the public a rare chance to hear Justice Clarence Thomas, who ordinarily asks no questions from the bench and has criticized his colleagues for cutting off lawyers and each other in arguments held in the courtroom. But he seems to have found the court's telephone arguments more congenial, and he has been a full participant in them.
The sheer number and breadth of the congressional subpoenas, he said on Tuesday, was problematic. "At some point," he said, "this thing gets out of control."
Later in the argument, he elaborated. "There's a straw that breaks the camel's back," he told Mr. Letter, "and it seems as though you're saying that we should look at these in isolation as opposed to in the aggregate. Why wouldn't we look at all of them and look at the full effect and whether at some point it debilitates the president?"
The second argument began immediately after the first. It concerned a subpoena to Mr. Trump's accounting firm from the office of the Manhattan district attorney — Cyrus R. Vance Jr., a Democrat — seeking eight years of business and personal tax records in connection with an investigation of the role that Mr. Trump and the Trump Organization played in hush-money payments made in the run-up to the 2016 election.
Both Mr. Trump and his company reimbursed the president's former lawyer and fixer, Michael D. Cohen, for payments made to the pornographic film actress Stormy Daniels, who claimed that she had an affair with Mr. Trump.

Mr. Cohen was also involved in payments to Karen McDougal, a Playboy model who had also claimed she had a relationship with Mr. Trump. The president has denied the relationships.
Jay Sekulow, a lawyer for Mr. Trump, said his client was entitled to "temporary presidential immunity" from the subpoena while he remains in office. That sweeping argument did not appear to gain much traction.
Carey R. Dunne, the general counsel of the Manhattan district attorney's office, said the case boiled down to a simple principle.
"When a president acts as a private individual, he or she has responsibilities like every other citizen, including compliance with legal process," Mr. Dunne said. "In particular, this court has long held that American presidents are not above having to provide evidence in response to a law enforcement inquiry."
Some justices said they were looking for a middle ground.
"A possible solution is to say no absolute rule," Justice Breyer said, "but just send it to the ordinary system for weighing the needs versus the burdens, and the different sides have to say what they are, and then have that reviewable in federal court."
"Now all that would take time," he said. "The time itself would discourage prosecutors from doing this, which might be good. And time itself would encourage House, Congress, president to work things out in a nonjudicial way."


CoronaTrump is a nasty virus, and if we distance ourselves like
Patriots, like a miracle it will all be gone in the Fall.

No comments:

Post a Comment