Jennifer Rodgers is a former federal prosecutor, the former executive director of the Center for the Advancement of Public Integrity at Columbia Law School, and a CNN legal analyst. The views expressed in this commentary are her own. View more opinion on CNN.
(CNN)No president is above the law -- and there were powerful arguments made to support that view in Tuesday's Supreme Court proceeding.
The Court heard oral argument on a group of highly consequential presidential immunity cases involving subpoenas issued by various House committees and the Manhattan District Attorney's office to obtain Donald Trump's tax returns. These cases are not only critical for the investigations into President Trump, but they are being closely watched because of what the rulings will mean for the parameters of executive power for this and future presidents.
The arguments proceeded in two phases: one involved the consolidated cases related to the House subpoenas issued in connection with the House's power to investigate for legislative purposes; the other concerned the Manhattan DA's subpoena, issued by a grand jury in connection with a criminal investigation over payments to women alleging affairs with Trump and possible tax law violations. In all of the matters on the docket, the President had appealed against lower court rulings holding the subpoenas valid.
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It is always a challenge to read the tea leaves from oral argument. But there were some enlightening exchanges, and in important ways many of the justices seemed to be on the same page, providing at least some clues about how they are likely to rule.
Trump v. Vance
The justices seemed to be united in important ways in the case in which Trump sued to stop Manhattan DA Cyrus Vance from enforcing a subpoena to the President's accountants and businesses for tax returns and other financial documents for an eight-year period before the 2016 election.
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Trump's legal team, represented by Jay Sekulow, swung for the fences. Sekulow argued, as he had in the President's losing efforts in the lower courts, that Trump is entitled to "temporary absolute presidential immunity" from the subpoenas at issue along with all other forms of criminal process, even if the case is directed not at the President but at other parties, and even if it relates to conduct having nothing to do with being the President.
The justices didn't seem to be buying what Sekulow was selling. Even the President's staunchest defenders were skeptical, with all of the conservative justices closely questioning Sekulow about his extreme position.
The Department of Justice, represented by Solicitor General Noel Francisco, also weighed in. He didn't argue that Trump is absolutely immune to process (though Francisco punted on the point when asked, saying that it is too soon to consider such a claim), but proposed that -- before issuing its grand jury subpoena -- the DA should be forced to go to federal court to make a heightened showing of proof demonstrating, among other things, a "critical need" for the information sought in order to make decisions about charges, and an inability to get the information from other sources.
Carey Dunne from the Manhattan DA's office countered that while a case-specific inquiry is appropriate to ensure that the subpoena does not unduly burden the President's exercise of his duties under Article II of the Constitution, the standard offered by the Department of Justice is too stringent, too burdensome on local prosecutors and their investigations, and would harm the grand jury process.
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After seeming to reject the extreme position of the President, the justices drilled down on what a workable standard might look like, carefully probing the arguments of the Manhattan DA and the Department of Justice. They questioned whether the Court's precedent in Clinton v. Jones had to be applied in this case. In the Clinton ruling, the Court held that President Bill Clinton was subject to subpoena for testimony in a civil suit brought by Paula Jones, who alleged that Clinton had sexually harassed her while he was governor of Arkansas (claims which he denied), in spite of the burden that preparing and giving such testimony would impose on the President. Most of the justices noted and asked the parties about the fact that the criminal penalties in Trump's case are arguably more serious but the burden imposed by the subpoena is much less. And they asked whether, as Sekulow and Francisco darkly hinted, there is a danger that with thousands of local DAs in the country the President could be overwhelmed with such subpoenas issued for political purposes, or whether that concern is overstated in light of the number of civil suits that could theoretically move forward under the Clinton v. Jones precedent.
Ultimately I expect that the justices will reject, perhaps even unanimously, Trump's assertion that he is absolutely immune from process and therefore above the law. It remains to be seen what standard will be adopted, and whether the ruling will require further litigation by a lower court before the DA's office will collect their subpoenaed documents. But, particularly given the facts of this case, including that the DA's office has acted in good faith and not with any political motive, I expect that at some point the DA will be permitted to proceed with its case without having to wait for Trump to leave office.
House Committee Subpoenas
The arguments on the House subpoenas revealed more significant divisions among the justices.
The subpoenas came from two committees that sought records about the hush-money payments; the way in which Trump had valued his assets on financial statements and other records in connection with possible violation of money laundering and other laws. Each of these committees asserted that their investigations were for the purpose of potential legislation on these issues.
The primary issue explored during the arguments was the amount of power Congress has to engage in an investigation for legislative purposes and where the limits to that power may be.
Once again, President Trump's legal team, this time represented by Patrick Strawbridge, took an extreme position, claiming that Congress has very little power to investigate the President as part of its legislative function because the Presidency is a separately created office under the Constitution. Strawbridge also claimed repeatedly that the House committees acted with political motivation in seeking the President's records. And at a minimum, he argued, the House should have to meet the "demonstrated needs" standard from prior Supreme Court precedent on executive privilege.
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The Department of Justice, this time represented by Deputy Solicitor General Jeffrey Wall, also argued that the House failed to show a need for the information they sought. House counsel Doug Letter, however, maintained that the House subpoena did what it needed to do in issuing the subpoenas at issue, and that arguments cited by counsel for Trump and DOJ missed the mark because they relied on cases dealing with executive privilege, which all parties agreed does not apply here.
The justices' questions explored these issues, with at least some of the President's reliable backers, like Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, expressing significant skepticism of the motives behind the subpoenas, pointing out where the information requested seemed at odds with the reason for the subpoena, and questioning the expansiveness of the House's view of its authority to seek information from the President for legislative purposes. Even the justices who seemed more accepting in theory of the House's right to investigate in this manner had questions about limits on the House's power and expressed some frustration when the House's counsel Doug Letter couldn't provide an example of when a subpoena request might cross the line. For example, many justices wanted to know whether the House could seek the President's medical records in connection with considering general healthcare legislation, or income information in connection with considering a tax cut for the middle class, suggesting that subpoenas along those lines would be problematic.
Some justices, like John Roberts, Stephen Breyer, and Brett Kavanaugh, were tough to read, at times seeming supportive of Congress's right to obtain information imposing some burden on the President, but also expressing concern about how far Congress could go without any sort of meaningful check. Justices were also clearly thinking about the separation of powers, and the difficult position the courts find themselves in when dealing with disputes between the other two branches.
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In short, the House cases raise a lot of thorny issues that did not seem to get resolved during today's argument. In addition, I couldn't help but think that the House could have saved itself some of the tough questioning (and even potentially an unfavorable result) if they had more carefully and specifically crafted their subpoenas in the first place to carefully match the information sought to the legislative purpose described; the arguments revealed weaknesses in that regard that the House lawyer had trouble countering.
For these reasons, the House subpoenas case is likely to split the justices more evenly than the Trump v. Vance case, where the Court should speak clearly to reject the President's claim of absolute immunity. The President is not above the law. These cases are now submitted, so the Supreme Court finally has its opportunity to say so.
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