The Constitutional Clash on a Conference Call

[0] From the New York Times, I'm Michael Babaro.

[1] This is the Daily.

[2] Today.

[3] 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.

[4] My colleague, Adam Liptack, listened in.

[5] It's Wednesday, May 13th.

[6] Hello, Michael.

[7] Adam, in a t -shirt?

[8] Good Lord.

[9] What is the pandemic rot?

[10] If I went to court, I'd be wearing a suit.

[11] Of course, of course.

[12] But like the justices themselves, you're wearing God knows what.

[13] I have the distinct suspicion that there were no robes on the justices today.

[14] Adam, set the scene for us on Tuesday at the Supreme Court.

[15] I'm not even sure it was at the Supreme Court, but set the scene.

[16] The court has been hearing arguments by telephone connoissell.

[17] conference call, which is a new experiment.

[18] This is only the second week of it.

[19] This was the fifth time they did it.

[20] So at 10 o 'clock in the morning, I dialed in.

[21] The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States.

[22] I listened to the marshal of the court, announced, Oye, Oye, Oye, Oye, Oye.

[23] And then she usually has a script admonishing people to draw near.

[24] Supreme Court of the United States are admonished to give their attention for the court is now sitting.

[25] God save the United States and this honorable court.

[26] But she omitted that from the script because there's nothing to draw near two.

[27] We were just listening in on a telephone conference call.

[28] Now, at the same time, this was quite a radical departure for the court because there was live audio.

[29] Right.

[30] Which everyone in the country could listen to in real time.

[31] Right.

[32] Usually we have to wait days to get that audio?

[33] Yeah, typically comes out the Friday after the arguments which happened on Monday, Tuesday, Wednesday.

[34] So if we were still living in the pre -pandemic world, they would have not released audio till Friday.

[35] 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.

[36] and that clash gave the public an opportunity in real time to see the justices in action.

[37] Okay, tell us about the first of these two cases.

[38] What's the background?

[39] The first case, we will argue today is case 19 -715, Donald Trump v. Mazars, USA.

[40] The first case concerns three different sets of subpoenas from House committees, the House of Representatives, of course, controlled by Democrats.

[41] 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.

[42] And what was the original rationale from these congressional committees in seeking these very sensitive documents?

[43] 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.

[44] Mr. Strawbridge, Mr. Chief Justice, and may it please the court.

[45] So how do the oral arguments unfold?

[46] 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.

[47] The subpoenas at issue here are unprecedented in every sense.

[48] Before these cases, no court had ever upheld the use of Congress's subpoena power.

[49] to demand the personal records of a sitting president.

[50] So President Trump's lawyer in the House subpoenas case, Patrick Straubridge, starts by saying that these are unprecedented subpoenas, and the court should block them.

[51] The rule that the court applies here will affect not only this president, but the presidency itself.

[52] The court should deny the committees the blank check they seek and reverse the decisions below.

[53] His argument is that there's no link between congressional responsibilities and what is being sought here?

[54] 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.

[55] That, sure, Congress has some power to investigate in order to enact wise legislation.

[56] But that this was partisan harassment, that they don't need President Trump's tax records to make tax law.

[57] They wouldn't need his medical records to decide how to reform the Affordable Care Act and that this is a kind of drag -net fishing expedition.

[58] 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, those have an obvious problem with respect to harassment and infringement upon the ability of the executive to discharge his duties.

[59] 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 by the president.

[60] That's the argument, yeah.

[61] And what is the response from the justices?

[62] Well, the justices respond one by one in this new way of questioning.

[63] And the justices ask a couple questions each in order of seniority.

[64] Justice Ginsburg.

[65] Counsel, in so many of these prior cases, there was a cooperation.

[66] For example, tax returns.

[67] Every president voluntarily turned over his tax returns.

[68] 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.

[69] The president would turn over some, but not all information.

[70] And Justice Elena Kagan says that what the president is asking for here...

[71] What it seems to me you're asking us to do is to throw a 10 -ton weight.