Roberts begins by testing the limits of Trump's legal theory—asks if the House could lawfully obtain ANY of the president's papers. The chief might be uncomfortable with the sweep of Trump's argument, which would place the president largely outside of congressional oversight.
Justice Ginsburg comes in guns blazing: How do you differentiate these cases from the Nixon tapes and Paula Jones?!

But the chief cuts off Strawbridge's answer pretty quickly.
Thomas: What's the line between a legislative subpoena and an impeachment subpoena?

This is a good question. Trump Judge Neomi Rao insisted that the House could only get Trump's financial records through an impeachment-related subpoena. https://slate.com/news-and-politics/2019/10/trump-subpoena-mazars-neomi-rao.html
Breyer: Are you saying the Watergate subpoenas were unlawful, since they were issued pursuant to Congress' legislative powers?

Strawbridge dodges, says Congress is engaging in "harassment" of the president. DRINK!

Breyer sounds pissed!
Breyer: Are you saying the Ervin committee [Watergate] subpoenas were unlawful? Yes or no?

But Roberts cuts off Strawbridge before he answers. The justices do not have enough time to grill counsel today!
Alito is obviously trying to help Strawbridge shore up his argument for Trump. We need not get into the details of his softballs.
Sotomayor: "I see a tremendous separation of powers problem when you're talking about placing a heightened standard" on a congressional investigation of the president. Notes that Congress has conducted oversight of the president for centuries with no constitutional problem.
Kagan: "What it seems to me your'e asking us to do is ... essentially make it impossible for Congress to perform oversight and carry out its functions where the presidency is concerned."

That's pretty much the whole case right there.
The liberal justices are on fire today—all on the same page, pursuing similar and complementary lines of questioning, pinning down Trump's lawyer with rat-a-tat interrogations, picking up where their colleagues left off. They are in fine form.
Gorsuch: "You argue that there is no legislative need, no substantial legislative purpose. ... Why should we not defer to the House's views about its own legislative purposes?"

This is actually a pretty good question, but let's see where Gorsuch is going with it.
Patrick Strawbridge, Trump's lawyer arguing at SCOTUS right now, is doing a bad job. Not the worst I've ever seen, but far from impressive. To be fair, he's arguing a deranged position—basically trying to make the president a king.
Principal Deputy Solicitor General Jeffrey Wall is now arguing for the Justice Department, which weighed in on Trump's behalf. Not a good day for the DOJ.
Roberts to Wall: You said "the purpose of these subpoenas was investigatory rather than legislative. If that is a pertinent consideration, I wonder how a court is supposed to look at it. Should a court be probing the mental processes of legislators?"
Roberts, continued: "Should members of House committees be subject to cross-examination on why they are really seeking these documents?"

A really good question from Roberts which indicates his vote may be in play. (Always tough to tell, though.)
Thomas: "What if it was clear ... that their intention was actually to remove the president from office rather than ... pretextual legislative reasons."

FYI Thomas genuinely does believe the president is a king. I strongly doubt his vote is in play here.
Ginsburg: "One must investigate before legislation! The purpose of investigation is to inform the legislation. You want to explore what is the problem, what legislative change can reduce or eliminate the problem."

Again, RBG is just killing it today.
RBG notes that if the police stop a car that blows through a stop sign, courts can't probe the cop's true reason for the stop. So why should courts question Congress' mental state?

"You're distrusting Congress more than a cop on a beat."
Breyer: "Why not apply the standard that applies to every human being in the United States?" When every other human gets a subpoena, "he can go to a judge and say, judge, this is overly burdensome, then he has a chance to show it." Why does the president get special treatment?
~INTERLUDE~

my work setup today
Sotomayor: "Until Congress investigates, it doesn't have a chance to determine what might be valid, and we don't have a chance to look at an actual law and say whether it may or may not be valid. You're asking a court to speculate as to legislation that's not in effect yet."
That is such an important point from Sotomayor. Trump and the DOJ want courts to divine a "valid legislative purpose" by assessing the *proposed* legislation and deciding whether it's constitutional. That is insane! Federal courts can't assess laws that haven't been passed!
Kagan to Wall: "In no place do you make a case as to why these particular subpoenas place a particular burden on the president such that he will be prevented from carrying out his constitutional responsibilities."
Kagan reminding us all that Trump has not persuasively explained why these subpoenas will burden his constitutional responsibilities. He just doesn't want to comply with House oversight. Is that really good enough?
Gorsuch: "What would be enough in your mind to demonstrate" that Congress has a legitimate reason for subpoenaing the president? Another good Gorsuch question! But Wall pretty much dodges it.
Kavanaugh: You say the full House needs to authorize the subpoenas. The House says it already has. What's your response?

Wall says the House's authorization was both "a rubber stamp and a blank check." That is ... a contestable position. But Kavanaugh doesn't challenge it.
Wall: "For the first 200 years of the republic, there was nothing like this."

Kavanaugh: "What about Watergate and Whitewater?"

Recall Kavanaugh's role in the Starr investigation.
Doug Letter, General Counsel for the House, is up now. I am not a big fan of Letter's argument style. He was very ineffective in the SCOTUS census case, and in the ACA case at the Fifth Circuit. But maybe I'll be pleasantly surprised today.
Roberts asking Letter for a limit on the House's authority to investigate the president for the purpose of writing legislation.

"Your test is not much of a test. It's not a limitation. It doesn't seem in any way to take account" that we're talking about "the executive branch."
Thomas asks "how we arrived" at Congress' "implied power" to subpoena the president for the purpose of writing legislation. Seems to question its origins and validity. Thomas' acolytes on the lower courts are very skeptical of this power, and it seems he is, too.
Breyer keeps coming back to the Watergate investigations and asking why these subpoenas are different. He gave Letter an opportunity to contest Trump's claim that the full House's authorization of these subpoenas was a "blank check."
Alito: Your position is that "the protection against the use of a subpoena for harassment is simply the assessment" of whether "the subpoena is relevant to some conceivable legislative purpose?"

"That's not much protection," Alito says. "In fact, that's no protection."
Alito to Letter: "You were not able to give the chief justice even one example of a subpoena that would not be pertinent to some conceivable legislative purpose, were you?"

He is right, and that's a great example of why Letter is not very good at this.
Alito is batting around Letter like a cat with a mouse. He's found Letter's weakness—Letter can't say what would NOT count as a legitimate legislative purpose. That lets Alito run through a parade of horribles that Letter's position would allegedly permit.
Sotomayor picks up where Alito left off. "Tell me," she asks Letter, "what we say to insure against [Alito's] hypotheticals" and prevent a subpoena that "might just be for the sake of exposure."

Letter regaining his composure under friendlier questioning. Still not very good.
Kagan gives Letter the opportunity to note that Trump has never argued the subpoenas would interfere with his constitutional duties.

It's a shame that Kagan has to eat up her limited time prodding Letter to explain the House's position more coherently.
Gorsuch to Letter: "We use law enforcement tools like subpoenas to investigate known crimes, not to FIND crimes." So what's the "limiting principle" here? "What is left to protect that important value that I know you share?"
It's kind of cathartic to complain publicly about Letter after spending so long in the SCOTUS courtroom silently fuming about his golly-gee bumbling.
Letter paused his argument defending the ACA in the 5th Circuit to say, "I just want to tell your honors how much I'm enjoying this. It's why I became a lawyer!" (I'm paraphrasing.) Like, 20 million people's health care is at stake and you're performing empty civility?
Also, this is how Letter began his arguments in the census case. Come on, Doug.
Justice Ginsburg gets the opportunity to ask Doug Letter more questions, but she passes, which tells you all you need to know.
Both liberal and conservative justices are searching for a limiting principle here. At what point does a congressional subpoena burden the president so heavily that it interferes with his constitutional duties? Letter should have a clear answer, and he doesn't. Embarrassing.
When you're arguing a case that pits one branch against another, you need a limiting principle to reassure the justices that one branch won't get out of control and encroach upon another branch's power. It's textbook. And Letter can't identify that principle.
Kavanaugh correctly tells Letter that he has failed to establish a limiting principle for a "valid legislative purpose."

"That's the concern I identified" from other justices' questions, Kavanaugh says. "I want to give you a chance" to explain "why it wouldn't spiral."
Roberts gives Letter "a chance to wrap up." We hear the rustling of papers for several seconds and Letter apologizes for flipping back through "his notes."😐
Mazars arguments did not go very well for the House, but it's hard to tell if that's because Doug Letter performed poorly. I can't currently count five votes for any one outcome.

Now we're onto Vance, the tax returns case. Jay Sekulow, Trump's lawyer, is up first.
Roberts to Sekulow: "You don't argue that the grand jury cannot investigate the president, do you? ... It's OK for the grand jury to investigate, except it can't use the traditional and most effective device grand juries typically use, which is the subpoena."
Roberts to Sekulow: "I don't know why you don't resist the investigation in its entirety. Or why your theory wouldn't lead to that."

(Roberts is right. Sekulow's theory would hold out Trump entirely above the law.)
Thomas: Can you point us toward some express language "at the founding or during the ratification process that provides for this immunity" from a state prosecutor's subpoena?

"Does it make a difference when a subpoena goes to a third party?"

These are both good questions.
Perhaps Sekulow is just really well prepared, but his colloquy with Thomas about founding-era evidence sounded oddly rehearsed. As if the two were reading scripts.
Breyer: Ordinarily, "any person who gets a subpoena can come in and say it's unduly burdensome." Why can't the president say "I'll show you precisely how this is burdensome."

"And if he shows undue burden," Breyer adds, "he wins, and otherwise not."
Breyer asked a similar question in Mazars. He seems to have a clear and consistent view of these cases. https://twitter.com/mjs_DC/status/1260216889197817858
Good summary of Alito's questions to Sekulow https://twitter.com/MikeSacksEsq/status/1260236879942819845
Sotomayor: "I'm not sure why [the president] is entitled to more immunity for private acts than he should be for public acts. ... We only give federal officers immunity" for official acts. She notes that if a judge or congressman commits sexual harassment, they can be sued.
Kagan notes that that "the president is special," but he is also "like an ordinary citizen in that he's subject to law."

Why, she asks, shouldn't courts say: The president can make objections about "harassment and burden," and we will decide if they're true.
I still can't tell if Gorsuch's vote is in play or if he just decided to ask both sides good questions today. "How is this more burdensome than what took place in Clinton v. Jones?" he asks Sekulow.
Arguments in Vance (about a grand jury subpoena for Trump's tax returns) are going worse for Trump than arguments in Mazars (about a House subpoena for Trump's financial records). I had expected the opposite.
Francisco says trial judges are elected in New York state, which might create local prejudices against the president. I don't think Roberts will like his suggestion that New York's judges are resistance hacks.
Ginsburg to Francisco: "You don't give any credit at all to the Tenth Amendment and the reserved powers of the state."

RBG with the federalism uppercut!
Ginsburg: "The grand jury is an investigatory body. It doesn't make, at the outset, specific charging decisions ... It investigates to determine: should there be charging decisions? You would have them make charging decisions before they investigate. That seems to be backward."
Ginsburg and Breyer keep asking different yet complementary questions—Ginsburg's are constitutional, Breyer's practical. Their one-two punch has forced both Sekulow and Francisco to criticize local prosecutors and state courts. The conservative justices shouldn't like that.
It's interesting that Solicitor General Francisco argued Vance himself and assigned his deputy, Jeff Wall, to argue Mazars. That suggests Francisco thinks Vance is the more important, consequential case. And I am not convinced that's true.
Sotomayor says: Why can't we just make sure the prosecutor is acting in good faith and the subpoena is reasonable? Why do we need to grant special privileges to the president? Why should he get a different standard when a grand jury is investigating his private conduct?
Kagan presses Francisco—why should the federal judiciary treat state courts with so much suspicion? Why should it assume state courts will be "more responsive to local interests," as Francisco insists? Wherefore the distrust of elected state judges?
Gorsuch presses Francisco on what "special need" a state prosecutor would have to show to subpoena a sitting president's personal records. Francisco responds that, basically, it has to be a last resort. Sekulow, by contrast, seems to want an absolute immunity.
It seems plausible that SCOTUS will establish a heightened standard for subpoenas targeting the president, then send the case back down to the lower courts to determine whether Vance's subpoena of Trump's tax returns meets that standard.
Roberts says: When state prosecutors want to subpoena the president, shouldn't courts hold them to a higher standard than Congress? Shouldn't Congress have an easier time of obtaining the president's records given the longstanding relationship between the two branches?
Carey Dunne, arguing on behalf of the New York DA, is doing a fantastic job so far. Already head and shoulders above Letter.
Ginsburg gives Dunne an opportunity to note that Trump and the DOJ's position "contradicts this court's longstanding presumption of regulatory in state proceedings." He also points out that most state prosecutors have no justification for investigating the president.
Alito: "What would be your objection to a what more demanding standard? The prosecutor would have to show that the information can't be obtained from another source, or it would be very difficult to obtain from another source."

Dunne wisely says he doesn't really object.
Alito is now asking what would happen if a state allowed a prosecutor or juror to reveal grand jury secrets. Adds that "we both know" prosecutors have all sorts of media sources, "including the New York Times."
Alito is basically suggesting that Vance might leak Trump's tax records to the New York Times.

Alito: "Your office is never requested by media in the NYC area to disclose confidential investigative materials?"

Dunne: "They ask all the time. The answer is no."
Shorter Alito: If we let #resistance prosecutors subpoena Trump's tax returns, won't they leak 'em to the FAKE NEWS media?!
Dunne to Sotomayor: "We've already lost nine months of time in this investigation due to this lawsuit. Every minute that goes by without a decision on the merits is granting the kind of temporary absolute immunity that the president is seeking here."
In colloquies with Kagan, Gorsuch, and Kavanaugh, Dunne has conceded that subpoenaing a sitting president is different, and requires SOME heightened showing of need. A smart move—Dunne sounds extremely reasonable and fairminded compared to Sekulow and Francisco.
Welp, the justices are going for a second record with Dunne, per Roberts. We're going long, folks.
Roberts says: Isn't the president always weighed down by a load of executive duties? Won't a subpoena always burden the exercise of his powers? And won't a criminal investigation be "distracting"?
Thomas: There's been much discussion about burdens on the president. I'd like from you a couple of examples of ... a burden that actually counts."

Dunne suggests that deposing a president for multiple days might cross the line. Again, he's making wise concessions.
Remember how Doug Letter couldn't give any examples of a limiting principle? Carey Dunne identified a limiting principle. Good lawyering right here.
On the second round of questioning, Roberts, Thomas, Alito, Sotomayor, Kagan, and Kavanaugh spoke. Ginsburg, Breyer, and Gorsuch passed.

We now live in a world where Thomas asks more questions than Breyer. What. Is. Going. On.
Marathon over!

There is a good chance the court creates heightened standards for subpoenas issued by congressional committees and state prosecutors, then sends both cases back down so lower courts can apply the new standards.

Strong punt potential here, which benefits Trump.
If I had to guess, I'd say Trump has a better chance of winning Mazars than Vance. The Paula Jones case clearly dictates the outcome in Vance, no matter how much Sekulow blathers about presidential harassment.

But I couldn't count five votes for any one holding in either case.
Is it possible Trump will lose both cases? Certainly, and he should. But I can see Roberts concocting a compromise that draws out this litigation by forcing lower courts to scrutinize the subpoenas more closely. Which could run down the clock on Trump's presidency.
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