Over three hours via teleconference Tuesday, the Supreme Court delved into two of the term's most momentous cases that will determine whether the House of Representatives and a New York prosecutor can subpoena President Donald Trump's accounting firm and banks for his financial documents.
The justices, participating by phone because of health precautions related to Covid-19, focused on Trump's effort to shield his documents, but they also prodded the lawyers to look into the future and gauge how an eventual decision will impact the separation of powers and an executive's broad claims of immunity.
Trump's attorneys argued that that the House subpoenas were "unprecedented in every sense" and they asked for "temporary presidential immunity" against a subpoena from a New York prosecutor for Trump's tax records.
"We're asking for temporary presidential immunity," Trump attorney Jay Sekulow told the court, defending against a subpoena from New York for the President's tax records.
When a lawyer for the House argued in support of the subpoenas issued by three committees, several conservative justices zeroed in on whether the efforts by the Democratic-led house amounted to harassment of Trump.
For his part, Chief Justice John Roberts asked the lawyer about the limits of congressional powers and suggested that the House needed to take into consideration the fact that the subpoenas involved, not at an ordinary litigant, but the President.
Roberts said the House didn't seem "to take account of the fact that we are talking about a coordinate branch of government, the executive branch." He suggested that the House was arguing that its power was "limitless."
Justice Clarence Thomas shared the concern, looking down to the road at future investigations and noting that "at some point" there is a "straw that breaks the camel's back."
Thomas worried about efforts to debilitate a president with a wave of subpoenas not only from Congress but grand juries as well.
"One could be manageable. But 100 could be impossible," Thomas said to House General Counsel Douglas Letter.
"That's the issue here: Whether something should be done" to "prevent harassment of the President," Justice Samuel Alito said.
'10-ton weight'
The liberal justices, meanwhile, pounced on lawyers for Trump, suggesting that the court has long upheld Congress' power to investigate.
Justice Ruth Bader Ginsburg noted that every recent president has voluntarily turned over his tax returns. She pointed to past investigations concerning Watergate, Whitewater and Paula Jones.
"How do you distinguish all of those cases," she asked, adding that before Congress can legislate, it must investigate.
Justice Elena Kagan noted pointedly that "this isn't the first conflict between Congress and the President," she said. In previous conflicts, the White House and Congress were able to reach an agreement. That obviously hasn't happened here, she told Trump attorney Patrick Strawbridge.
"And it seems to me, 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 for Congress to perform oversight and to carry out its functions where the President is concerned," Kagan said.
Roberts had started by asking to see whether the House had any power to subpoena personal records, perhaps in an effort to find a middle ground. "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, is that the wrong way to look at it?"
'The President isn't above the law'
In the case concerning the New York grand jury subpoena, several of the justices did not seem receptive to Trump's broad claims of immunity, pointing at times to court precedent concerning Presidents Richard Nixon and Bill Clinton that were relied upon by the lower courts that ruled against Trump.
Roberts asked a lawyer for Trump about the fact that in Clinton v. Jones, the court allowed a private citizen to bring civil suit against a sitting president.
"You focus on the distraction to the President" in this case, Roberts told a lawyer for Trump, but he said in the Clinton case, "we were not persuaded that the distraction in that case meant that discovery could not proceed."
Justice Neil Gorsuch, too, emphasized that in the Clinton case the court allowed the case to go forward against a sitting president, but in the case at hand, all that was being sought was records from third parties.
Sotomayor stressed that New York District Attorney Cyrus Vance was not targeting official acts by the President.
"You are asking for a broader immunity than anyone else gets," she told Sekulow.
And when he emphasized that the president is different than an ordinary litigant, Kagan shot back, saying: "The President isn't above the law."
Trump has sought for years to shield his tax returns and other records, while his critics launched a variety of investigations into hush money payments and potential violations of financial disclosure as well as ethics rules.
The cases come in the middle of a blockbuster term where the justices are already deciding cases concerning DACA, LGBT rights, and abortion. The court is also considering the Justice Department's emergency request concerning whether the House can have access to grand jury material from the Mueller probe and redacted portions of the Mueller report.
Arguments were scheduled to be heard at the end of March but were delayed due to the pandemic. Decisions are expected this summer.
House Democrats subpoena of accounting firms
The first two cases, argued concurrently, pit the President's personal lawyers against House Democrats who say they need records from Trump's longtime accounting firm and two banks to investigate a variety of issues ranging from alleged hush money payments, illegal foreign involvement in a US campaign and potential violations of money laundering and ethics rules.
Trump's lawyers sued to block the subpoenas arguing that although they are directed to third parties -- Mazars USA, Deutsche Bank and Capital One -- they involve the President and members of his family and amount to an illegal fishing expedition. Democrats say they need the documents regardless of the fact the impeachment trial of the President earlier this year ended in acquittal.
Federal appeals courts have ruled against the President.
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