Chief Justice John Roberts rebuffed legal arguments on Tuesday that would totally shield President Donald Trump from subpoenas yet voiced enough skepticism of Trump’s challengers to suggest orders for his financial records would not actually be delivered anytime soon.
That could mean that Trump loses to some degree at the Supreme Court but actually wins.
For instance, while the ability of the Congress and a state grand jury to subpoena a President could be upheld, future proceedings could further delay release of Trump’s tax returns and other financial documents, perhaps past this November’s election.
Such a prospect emerged through the questioning of Roberts, the conservative who sits in the middle of this ideologically divided bench. He is likely to control decisions in the separation-of-powers disputes that recall landmark cases dating to the Watergate era and that raise new political challenges in today’s polarized Washington.
If the 65-year-old chief hews to his recent pattern, he will rule as narrowly as possible and try to avoid a decision from the five Republican-appointed conservatives and four Democratic-appointed liberals that appears blatantly political in the American mind.
Earlier this year, Roberts navigated another Trump minefield as he presided over the Senate’s impeachment trial. The chief justice declined to intervene in any substantive way, spurning requests by Democratic senators to ensure witness testimony. Trump was acquitted in February of charges tied to his alleged conditioning of security aid to Ukraine on that country’s investigation of US Democrats.
On the bench, Roberts has built a sturdy conservative record, particularly on dilemmas of race, religion, guns and campaign finance. He authored a 2013 decision that curtailed the scope of the 1965 Voting Rights Act, lifting a requirement that had forced certain localities with a history of discrimination, mostly in the South, to obtain federal approval before changing electoral rules. He has yet to vote to strike down an abortion regulation. Still, in two highly charged cases he moved left, most notably in 2012 when he cast the decisive vote to uphold the Affordable Care Act and last year when he provided the fifth vote to keep a question regarding citizenship status off the 2020 census.
Even as he may be less predictable in these rocky times, Roberts is bound to want to protect the office of the presidency, confronted by investigations in the House of Representatives and scrutiny from a New York grand jury. Roberts cut his teeth in Washington as a lawyer in the Ronald Reagan White House and has long favored strong executive power and prerogatives.
Regarding the grand jury subpoena for Trump’s tax documents, Roberts worried about presidential distractions.
“Is there supposed to be a hearing where he says: ‘Here’s what I’m doing, I’ve got this pandemic thing, you know, China is causing all sorts of trouble?’” Roberts asked.
“You know,” he added, “most Presidents throughout their term have a pretty long to-do list.”
Roberts separated himself from the four liberals who leaned heavily on rulings against President Richard Nixon in 1974 and President Bill Clinton in 1997. Instead of focusing on potential distractions for a president, liberal justices voiced concerns about holding a president accountable.
“In the grand jury context,” Justice Ruth Bader Ginsburg observed, “the public has a right to every man’s evidence.” Justice Elena Kagan added, “a president isn’t above the law.”
Leading off the questioning in Tuesday’s telephonic hearings, Roberts suggested a president could not be absolutely protected from any House subpoena for his personal records, and he separately derided the Trump claim of immunity from any criminal investigation as “no circumstances, no how.”
Yet Roberts raised concerns about a president having to answer to potentially hundreds of state prosecutors nationwide and suggested he was inclined toward a tough test for any enforcement of a subpoena in a state criminal proceeding.
He also drew a line between the Trump case and the Supreme Court’s 1997 Clinton v. Jones decision that subjected Clinton to a civil lawsuit by Paula Jones, who claimed he had sexually harassed her when he was governor of Arkansas. Roberts said a criminal case could constitute a greater distraction on a president, keeping him from his constitutional duties.
Two of Tuesday’s cases flow from US House committee efforts to obtain financial documents that members say would help them write new ethics legislation. The subpoenas were directed at Trump’s accountants Mazars USA and two of his financial institutions, Deutsche Bank and Capital One. Trump’s lawyers intervened to block the subpoenas, rejecting the contention of a valid legislative purpose.
The third case emerges from a New York grand jury’s investigation and concerns whether – as Trump argues – a sitting president can be immune from any criminal proceeding while in office. In that case, Manhattan District Attorney Cyrus Vance is pursuing whether Trump, before he became president, directed “hush money” to women who claimed to have affairs with him. (Trump has denied the affairs.) Lower court judges upheld all the disputed subpoenas.
Going after the House lawyer
In separate questioning, Roberts voiced sharp doubt for the position advanced by House counsel Douglas Letter, who said the court should defer to Congress’ determinations of the subpoenas necessary for its legislative mission. The chief justice worried that a standard linked broadly to legislative efforts would be “limitless” and expose a president to all manner of requests.
“Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write?” Roberts asked.
When Letter conceded the breadth of Congress’ legislative authority, Roberts rejoined, “Well, that’s what I’m suggesting, that your test is really not much of a test. It’s not a limitation. And it doesn’t seem in any way to take account of the fact they were talking about a coordinate branch of government, the executive branch.”
Justice Samuel Alito, a fellow conservative, followed up with Letter, emphasizing that a president could be vulnerable to a barrage of subpoena requests designed mainly to harass a political opponent.
“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?” Alito said.
When Letter rejoined that Congress indeed has “extremely broad” authority to legislate, Alito insisted, “Well, so the end result is that there is no protection whatsoever in your view.”
Roberts appeared opened to a standard advanced by the Justice Department, which is siding with Trump but shunning the far-reaching arguments of his personal lawyers that would practically close the door on any subpoenas for personal documents. The Justice Department test would allow congressional subpoenas of personal documents but require that the legislative purpose asserted be particularly detailed and pertinent to documents sought.
In the grand jury case, Trump’s lawyers have argued that he deserves “temporary presidential immunity” from any criminal process while in office.
Perhaps the most revealing Roberts’ comments surfaced at the beginning of the three-and-one-half hour session.
Trump lawyer Patrick Strawbridge stressed the constraints on Congress to order the release of a president’s personal papers. “I think it is very hard to imagine that the House is ever going to have the power, pursuant to its legislative powers, to subpoena the records of the President,” Strawbridge insisted.
But Roberts pressed about the remote possibility of a case that could be tested in federal courts to see if within bounds. Strawbridge acknowledged the possibility and Roberts seized on it.
He said it appeared that the House would have “some power,” and then Roberts said he understood that the House would “concede there is some limit to its authority.”
“So,” Roberts declared, “it sounds like at the end of the day this is just another case where the courts are balancing the competing interests on either side.”
That notion, or aspiration, may reflect Roberts’ mindset as he looks ahead to forging a consensus among the Supreme Court nine. The cautious, calculating chief would be aware that the Nixon and Clinton landmark cases were decided unanimously as justices set aside their political and ideological differences.
If there is a way turn the matter into “just another case” and avoid a 5-4 resolution, Roberts would no doubt grasp it.
