Supreme Court hears arguments on Trump finances

Melissa Macaya, CNN

Updated 4:26 p.m. ET, May 12, 2020
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12:18 p.m. ET, May 12, 2020

Trump lawyer: President gets "temporary presidential immunity"

From CNN’s Katelyn Polantz

President Donald Trump's attorney Jay Sekulow speaks to the press in February.
President Donald Trump's attorney Jay Sekulow speaks to the press in February. Sarah Silbiger/Getty Images/File

They'd said it before, but President Trump's attorney put it more bluntly than ever: 

"We're asking for temporary presidential immunity," Jay Sekulow told the Supreme Court Tuesday morning.

That is, Trump can't be investigated or prosecuted by anyone, anywhere while he's President. 

"Criminal process targeting the President" violates the Constitution, Sekulow said.

Justice Elena Kagan called out the argument, which Sekulow has been steadfast in since he began arguing today.

"You are asking for broader immunity" than anyone else, Justice Sonia Sotomayor asked him. 

"He's the President," Sekulow responded.

Kagan had a retort: "The President isn't above the law."

Some context: The theory has popped up over and over again in the last three years —while special counsel Robert Mueller considered subpoenaing Trump; when the Justice Department weighed the evidence that Trump obstructed the Russia investigation; when the Senate took up Trump's impeachment proceeding; and now with the New York district attorney's investigation into him.

12:16 p.m. ET, May 12, 2020

Justices are hearing arguments in second case on Trump's finances. Here's what is at stake. 

From CNN’s Ariane de Vogue

President Donald Trump attends a press briefing in the Rose Garden of the White House on May 11.
President Donald Trump attends a press briefing in the Rose Garden of the White House on May 11. Drew Angerer/Getty Images

The Supreme Court is currently hearing oral arguments on another blockbuster case concerning President Trump's bid to shield his financial records.

The case — Donald J. Trump v. Cyrus Vance — concerns Trump's broad claims of immunity, in a dispute arising from a New York prosecutor's subpoena to Trump's accounting firm for his tax returns and other financial documents. 

Why this matters: The subpoena seeks records dating from 2011 to the present day concerning transactions unrelated to any official acts of the President. One issue raised was related to alleged "hush money" paid on behalf of Trump to two women with whom he was allegedly having affairs. Trump has denied having affairs with the women. Trump's personal lawyers sued in federal court to block the subpoenas, claiming he has immunity from such criminal proceedings while in office. 

The Justice Department sides with Trump, but on more narrow grounds. A federal appeals court ruled against the President, sidestepping some of his more expansive claims.

Who's participating: Trump attorney Jay A. Sekulow; Solicitor General Noel Francisco; Carey R. Dunne, general counsel, New York County District Attorney's Office.

12:12 p.m. ET, May 12, 2020

House lawyer raises prospect of "foreign leverage" over Trump 

From CNN’s Marshall Cohen 

Douglas Letter, the top lawyer for House Democrats, leaves federal court in 2019.
Douglas Letter, the top lawyer for House Democrats, leaves federal court in 2019. Susan Walsh/AP/File

The top lawyer for House Democrats told the Supreme Court that lawmakers need President Donald Trump’s tax returns to determine if he “is subject to foreign leverage.”

What this is about: The point made by Douglas Letter, the top lawyer for the House of Representatives, referred to the subpoena issued by the House Intelligence Committee to two banks that work with Trump. Two lower previously ruled that the subpoena was legal and that the banks should comply.

 “There is an obvious need to focus on the President's financial records to determine if the president is subject to foreign leverage,” Letter said, defending the House subpoenas as necessary to draft new ethics laws. “It is obvious that it ties in with that legislative purpose.”

Financial experts say Trump’s tax returns, if they became public, would answer questions about how he makes his money, how much he pays in taxes each year, how generous he is with charitable contributions and whether he has financial holdings in foreign banks or companies.

Some context: Trump’s political opponents, primarily Democrats, have long accused him of having nefarious Russian ties. Trump has been caught in several major lies about his connections to Russia, though there isn’t evidence that he is financially beholden to Russia or any or foreign powers.

House Speaker Nancy Pelosi raised this possibility after Trump’s high-stakes summit with Russian President Vladimir Putin in 2018. In a shocking joint appearance with Putin, Trump trashed the US government’s position on Russian election-meddling and said he believed Putin’s denials.

12:08 p.m. ET, May 12, 2020

Why subpoenas may pose the biggest legal threat to Trump's company

From CNN’s Kara Scannell

Trump Tower in Manhattan is the headquarters of the Trump Organization.
Trump Tower in Manhattan is the headquarters of the Trump Organization. Jürgen Schwenkenbecher/Picture-Alliance/DPA/AP

The Supreme Court is hearing arguments now on the Donald J. Trump v. Cyrus Vance case. The case concerns Trump's broad claims of immunity, in a dispute arising from a New York prosecutor's subpoena to Trump's accounting firm for his tax returns and other financial documents. 

The Manhattan District Attorney's office issued grand jury subpoenas to Trump’s accounting firm, Mazars USA, and Deutsche Bank and Capital One seeking eight years of financial documents and work papers from Trump, his family and the Trump Organization.

Some context: The DA's office is investigating whether the president and the Trump Organization violated state laws in several different ways. The DA is looking at hush money payments made to women alleging affairs with Trump and whether business records filed with the state were falsified and if any tax laws were violated, according to people familiar with the investigation.

The criminal investigation goes beyond those payments, according to prosecutors, who redacted several paragraphs in court filings describing the scope of the inquiry.

According to people familiar with the investigation, prosecutors are also exploring whether the Trump Organization, and any of its officers, mislead tax authorities and lenders about their business. Trump ran the family business until he was sworn into office. Then Trump transferred the leadership to his two sons Donald Trump Jr and Eric Trump.

11:46 a.m. ET, May 12, 2020

Conservative justices point to subpoenas as potential presidential harassment 

From CNN’s Katelyn Polantz

Four Supreme Court justices — Thomas, Roberts, Kavanaugh and Alito — focused on the potential harassment of the President with a wave of subpoenas.

"One could be manageable. But 100 could be impossible," Justice Clarence Thomas said to House General Counsel Douglas Letter, describing how both houses of Congress and grand juries may be subpoenaing the Presidents' documents all at the same time.

Justice Samuel Alito also scorched Letter with questions over whether the House subpoenas were harassing Trump.Letter answered that the subpoenas went to private third parties, and not to the President himself.

"That's the issue here whether something should be done" to "prevent harassment of the President," Alito said.

The exchanges were notable not only for how much the Republican-appointed justices emphasized a possible need to protect the President-- but also because of how far their approach was from what the court was questioning before today. 

Before the arguments, the court had asked the parties to describe why the court should even be involved in such a political situation.

Raising the question seemed to indicate that the court may have sought an off-ramp.

But the Supreme Court now appears to be grappling directly with how they regulate the subpoenas, or not.

Justice Brett Kavanaugh also mentioned potential harassment of the President, staking out a possibility that the court could use a test for Congressional subpoenas, such as making sure there was a critical need for the information.

Chief Justice Roberts also asked about Congressional subpoenas that may appear to be harassing the President. "How do you measure harassment in a case like that? At some point there's the straw that breaks the camel's back," Thomas said.

11:36 a.m. ET, May 12, 2020

Justice Kagan focuses on Supreme Court’s unprecedented role as referee between House and White House 

From CNN’s Katelyn Polantz

Justice Elena Kagan poses for the official Supreme Court group photo in 2018.
Justice Elena Kagan poses for the official Supreme Court group photo in 2018. J. Scott Applewhite/AP/File

Justice Elena Kagan focused on a key issue explored during today’s arguments: that the Supreme Court has not been put in a position before to referee between a probing House and a recalcitrant White House. 

"We’ve never had to address this issue because Congress and the President have reached accommodations," Justice Kagan said, before noting the President's attorneys were asking the court to "put a 10-ton" weight on the scale against Congress and in favor of the presidency. 

She's not the only one to raise the historical importance of the situation — other justices this morning and attorneys have been noting how unprecedented this case is. 

But a Trump-appointed judge, Trevor McFadden of the DC District Court, hearing yet another Trump tax document subpoena case last year, pointed out what might be the most extraordinary part of the standoff:

"Congress has been sending subpoenas your way for hundreds of years," McFadden asked a government lawyer in a case over the House's ability to get Trump's tax returns from the IRS. "Are you familiar with a case where the Executive Branch has said, 'No'?"

 Later, McFadden returned to the chicken-and-egg question--was Congress at fault for its subpoena, or was it the executive branch's refusal creating the problem?

"Congress has been subpoenaing for a long time, and the Executive has been complying for a long time. And isn't maybe the difference that -- is this the first time the Executive Branch isn't complying?" 

He noted historically Congress and presidents have always negotiated to avoid court historically, a point the justices have brought up several times this morning.

11:14 a.m. ET, May 12, 2020

Justice Thomas echoes dissent by Trump-appointed judge

From CNN’s Marshall Cohen  

Justice Clarence Thomas poses for the official Supreme Court group photo in 2018.
Justice Clarence Thomas poses for the official Supreme Court group photo in 2018. Mandel Ngan/AFP/Getty Images/File

Justice Clarence Thomas has seemingly picked up on arguments from his former clerk-turned-judge Neomi Rao, who wrote a dissenting opinion against the financial subpoenas last year when the DC Circuit Court of Appeals upheld one of the subpoenas in a divided ruling.

“In the DC Circuit opinion, it says that this sort of information or subpoena should be requested under the impeachment power,” Thomas said asked during his first round of questions. “What's the line between a subpoena, a legislative subpoena and an impeachment-related subpoena?”

Later on, Thomas raised the possibility that House Democrats have used “pretextual” reasons to issue the subpoenas. They say the subpoenas to Trump’s accountant are needed to review his tax records, conduct oversight, and craft legislation about presidential conflicts of interest.

Thomas didn’t mention Rao by name, but this echoes her dissent from October. Rao disagreed with the majority on the appeals panel, and said Democrats were trying to “turn Congress into a roving inquisition” of the Executive Branch by using legislative subpoenas to investigate Trump.

Rao is one of Trump’s most controversial judicial appointees and was forced to apologize for her past writings sexual assault, where she said women should change their behavior to avoid getting date-raped. She was confirmed by the Senate on a party-line vote in March 2019.

Arguing on behalf of the Justice Department, Deputy Solicitor General Jeffrey Wall responded by saying that the House rationale was “paper-thin” and that the subpoena was designed to find “wrongdoing” by Trump, which is more about removing him from office than writing new laws.

Democratic-appointed justices later rebutted Thomas’ line of questioning by noting that congressional committees often conduct fact-finding inquiries as part of the law-writing process.

11:06 a.m. ET, May 12, 2020

Justice Kagan: Trump wants a "10-ton weight" between President and House

From CNN’s Dan Berman

Justice Elana Kagan testifies during a House Appropriations subcommittee hearing in 2019.
Justice Elana Kagan testifies during a House Appropriations subcommittee hearing in 2019. Chip Somodevilla/Getty Images/File

Justice Elena Kagan noted that in previous conflicts like this one between a President and Congress over documents, there has been some kind of agreement and they were able to work things out.That’s not happening here, she told Trump attorney Patrick Strawbridge:

“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 to perform oversight and to carry out its functions where the president is concerned.”

The president's stance: Trump has argued that Congress is on a fishing expedition and their efforts have no legislative purpose. The House says it’s conducting oversight and fact-finding in advance of possible future legislation.

11:09 a.m. ET, May 12, 2020

Justice Ginsburg asks: Why should Trump be shielded?

From CNN's Joan Biskupic

Justice Ruth Bader Ginsburg participates in a discussion at the Georgetown University Law Center on February 10.
Justice Ruth Bader Ginsburg participates in a discussion at the Georgetown University Law Center on February 10. Sarah Silbiger/Getty Images/File

Justice Ruth Bader Ginsburg and the other liberals noted that President Bill Clinton and other presidents before him have turned over materials sought by Congress. 

Why would President Trump be shielded in a way that his predecessors were not, they asked? Their questions invoked controversies and familiar names from the Watergate era, Whitewater and Paula Jones.

Ginsburg also rebuffed deputy Solicitor General Jeff Wall as he argued that Congress was seeking financial papers as an investigatory matter, not a valid legislative one, as the committees have asserted. Congress must investigate, she said, before it legislates. 

That might be true, Wall responded, but when the President is involved, a higher standard for subpoena exists because of the possibility a president would be harassed and distracted from his work.