JUSTICE SONIA SOTOMAYOR: Counsel, there is a long, long history of Congress seeking records and getting them … [FADES UNDER NARRATION]

ANDREA BERNSTEIN: In May, the U.S. Supreme Court heard oral arguments in two cases, both involving Trump's financial records. Because of COVID, the audio was streamed live.

In one case, Trump v. Vance, Trump's personal lawyers sued the Manhattan D.A. to keep him from getting Trump's tax records in an investigation into whether Trump's business had falsified records in connection with hush money payments to Stormy Daniels. In the other, Trump's personal attorneys sued his bankers and his accountants to prevent them from turning over records to Congress. In oral arguments, one of Trump's lawyers, Patrick Strawbridge, had this contretemps with Justice Sonia Sotomayor.

PATRICK STRAWBRIDGE: … because what we're seeking here is presidential finances. Uh, when you look at the face of … I’m sorry.

JUSTICE SOTOMAYOR: Pardon, sir. Not presidential, uh, finances. We're asking for his personal tax returns, before he became President. Those are very different things. And we're not asking him to produce it. And some of the subpoenas that Congress, through history, as far back as 1792, have asked for personal papers of the president, while being president.

BERNSTEIN: In almost 250 years of the Republic, the Court had never had to wrestle with precisely these questions. But Trump's lawsuits left them no choice. Justice Stephen Breyer worried what would happen if the court gave a green light to sweeping Congressional investigations.

JUSTICE STEPHEN BREYER: The fact that what I hold today will also apply to a future Senator McCarthy asking future Franklin Roosevelt or Harry Truman exactly the same questions. That bothers me. So what do I do?

BERNSTEIN: That question was answered on the last day of a roller coaster U.S. Supreme Court term, a climactic set of decisions on checks and balances and the rule of law.

[TRUMP, INC. THEME PLAYS, AND THE SOUND OF A GAVEL STRIKING IN THE SUPREME COURT RESOUNDS]

BERNSTEIN: Hello, and welcome to Trump, Inc., a podcast from WNYC and ProPublica. I'm Andrea Bernstein. The Supreme Court said, “Yes, the president is subject to oversight — to a point.” In Trump v. Vance, Chief Justice Roberts, writing for the majority in a 7-2 opinion, held that a president could be subject to a criminal investigation. In Trump v. Mazars, Roberts ruled, again 7-2, that Congress can have oversight over the president, but only if their inquiries pass a four-point test. That case was sent back to the lower courts.  

Today on the show: Breaking down the U.S. Supreme Court’s decisions in Trump v. Vance and Trump v. Mazars. We invited back Melissa Murray, Professor of Law at NYU and co-host of the Strict Scrutiny Podcast. My co-host, Ilya Marritz, is here, too. Welcome.

MELISSA MURRAY: Thanks for having me.

ILYA MARRITZ: Hi, Melissa! Hi, Andrea!

BERNSTEIN: So, Melissa Murray, give me your top-line takeaway on these opinions.

MURRAY: I think, for top-line, that the President doesn't win, necessarily, in these cases, but doesn't really lose either.

The court says in both opinions that the president is not beyond the law. In the case of the Manhattan D.A. subpoena, he is required to go back and basically deal with the subpoena in the way that any private citizen would, which is to say that the grand jury investigation can proceed. The subpoena is not quashed. But he can go back and actually challenge the subpoena just like any other private citizen would be able to, and the court will determine whether those documents can be subsequently released to the grand jury. In the congressional subpoena cases, by the same token, the court kicks this back to the lower courts to figure out a workable standard that prioritizes both the president's ability to execute his constitutional duties with Congress's constitutional duty of oversight and balances those separation of powers concerns.

This means that the President is not outside of congressional oversight, but it also means that whatever was included in that material that Congress wanted to see is not going to be before the public before the election in November. So it's a loss for the President. But in some way, he wins by losing.

BERNSTEIN: You know, it's interesting, because I agree with what you're saying. I think that he has run out the clock. But I think that, you know, if I think about my — in my heart of hearts, I knew he had already run out the clock, no matter what the court decided today when they took the case.

That, to me, felt meaningful, that they said, “Yes, district attorneys can investigate.” And even in the congressional case, saying, “Yes, Congress can have oversight so long as it fulfills these four factors, as long as it's inside the four corners of a box.”

MURRAY: I think it is meaningful. I mean, so you asked me, like, “What's the top-line?” I mean, everyone's talking about whether the President wins or the President loses.

I don't think anyone's considered that the real winner and all of this is John Roberts and the Supreme Court. I mean, John Roberts is the one who understands his role as Chief Justice of the United States to be the institutional steward of the court's legacy and its legitimacy. And he has, effectively, with both of these decisions, steered the Court through a really treacherous course that could have been a polarizing mess for the Court to wade into, and he's done it in advance of what will likely be one of the most polarizing elections of the modern age.

[LIGHT MUSIC PLAYS UNDER DISCUSSION]

BERNSTEIN: So, Ilya, I re-listened and reread the oral arguments just earlier this week, and when I reread them — especially on the congressional case — it seemed to me that it was really going badly for the idea of congressional oversight.

MARRITZ: My question, then, going into this ruling was, “Are they going to be ruling based on what they hear in oral arguments, or they're going to be more guided by what they read in documents?” And when you examine the documents, I think the House actually had a pretty persuasive case, which is, like, “We have the authority to conduct oversight. Um, and you — the court must affirm that.” And the court did affirm that. And John Roberts basically tried to say, “Since it's not enumerated anywhere in the Constitution or anyplace else, I'm going to make a four-factor test for the next Court that has to decide this matter. This specific matter, but also for all the matters in the future.”

And he seems very conscious of making a decision that will be a decision for the ages. So Robert's basically articulated a checklist with four items, and this is what they are:

One, to assess whether the request has a clear legislative purpose — it is for making laws. Two, the courts must insist that the subpoena be narrow, no broader than necessary. Three, Congress has to show why it needs the information it requests for its legislative purposes. Four, the burden on the president must be considered.

So, really, the question that I have now is, “Is the next Court — is the next judge who has to apply this standard — are they going to be able to apply it easily? Is this a balls and strikes kind of standard, or does this require so much judgment that we're back in another situation that is, again, very uncomfortable for a Court trying to decide between two branches of government?”

MURRAY: Well, I'm just nodding because I think that's exactly right.

Um, yeah, I think Chief Justice Roberts may have done himself a disservice when, at his confirmation hearing, he sort of equated the judicial role to simply calling balls and strikes. A lot of this is about sensitive judgment, and we've seen time and time again that what seems apparent to one jurist is not at all apparent to another.

So, I think it will be very difficult for lower courts to thread the needle that John Roberts has set up here. Um, but, again, you know, I think John Roberts is back at his desk at the Court stroking a hairless cat because he has managed to avoid all of this by setting out, ostensibly, a four-factor test that lower courts can easily apply. But I think Ilya's right — it won't be so easy in practice to make out where these boundaries are.

BERNSTEIN: So, the district court judges in both Mazars and Deutsche Bank, that — the two cases were consolidated — were pretty unequivocal.

I was in a Thurgood Marshall courthouse when Judge Ramos read his decision from the bench in Deutsche Bank. And he was pretty gung-ho on the idea that he was not going to do anything to limit Congress. Given that we know that is his predilection, does that signal to us anything about what he could do and how quickly he would do it?

MURRAY: I think it means that he will go back with this four-factor test. I mean, I think he actually probably thinks he is already abiding by that four-factor test. And nothing that the Chief Justice identified here as factors to be considered is unusual or unorthodox or something that wouldn't have occurred to a good district court judge reviewing this in the first instance.

And so I think Judge Ramos will likely look at this opinion and think, “I kind of already did this and I’m — I'm back where I started. I think Congress has the appropriate authority here to issue subpoenas and, you know, maybe I will discuss my decision-making in terms of these four factors, but I'm not sure that the decision changes.”

BERNSTEIN: Now, back to the question of the oral arguments, would you have called today's decision — based on what we heard the judges articulate the oral arguments?

MURRAY: So, my prediction was that the Manhattan D.A.’s office would win handily in Vance. And I — Ithink that was right. I was more concerned about the Congressional subpoena cases, in part because I think that it seemed — based on the discussions from the justices at oral argument — there were a number of Justices, even from the liberal block, who worried that, um, in a situation where you have divided government, and the president and Congress are of different parties, these subpoenas might be used to harass the president. And Justice Briar was one of the ones who said this over and over. And he wasn't speaking specifically of this administration, but even going back to the Roosevelt administration — and he talked about Truman — and just the way in which divided government can perhaps bring out the worst impulses within each of the coordinate branches.

So I was surprised that they actually got a 7-2 majority here. I think it is worth noting that in the 7-2 majority, you have the Chief Justice writing for the liberal wing of the court.

MARRITZ: I just want to jump in with — with one thing there on some of the points that you were making, Melissa, which is just a point of language that I noticed in Justice Robert’s opinion in the Mazars and Deutsche Bank case. And it was on his fourth point on his checklist where he said that the judge must consider the burdens on the president from, quote, “a rival political branch.” And I really thought there that Roberts revealed that he had to some extent accepted the logic that was being put forward by the President's lawyers where, um, Congress is seen as literally a rival political branch, rather than as a peer political branch, another branch of government, a branch of government that is charged with — with oversight. Um, he used the word “rival,” and that I think reflects Donald Trump's point of view and the way that he looks at power.

MURRAY: I mean, it really has sort of a capture of the logic of this court. I mean, like, Congress as antagonists — not as a coordinate branch charged with a constitutional duty to check the executive, but Congress just sort of messing with this president who's going about — the ordinary course of his duties. I think that was an enormous tell. And one that, I think, tracked back to the oral arguments. Like, throughout oral arguments the president's lawyers constantly had this refrain of “presidential harassment,” “presidential harassment”.

BERNSTEIN: But it was interesting to me because Trump's lawyers also made that argument in Trump v. Vance, and there were — in their various arguments and briefs winding their way up to the Supreme Court — they argued that Vance was just part of a Democratic machine. They accused him of photocopying the House Democrats’ subpoenas. And it was interesting to me that in the Trump v. Vance case, the court was pretty firm in saying that D.A.s have a right to investigate.

MURRAY: So that was really interesting, and I think also toggled back to the point and argument where — I believe it was Justice Alito, um — was somewhat aggressive in this line of questioning, but, um, said to Carrie Dunn, who argued the case on behalf of the Manhattan D.A.’s office. You know, “What about prosecutors leaking grand jury information to the New York Times?” like, this — and this whole line of questioning about these rogue prosecutors who are really hell-bent on, you know, getting the President, which is unusual because, you know, Sam Alito was a federal prosecutor for a big part of his early career.

And certainly, I don't know any prosecutors who are regularly leaking to the press, but there was this sort of, um, vision of the President besieged on all sides by these political rivals, as — as you say, Ilya, who are intent to bring him down. And at least some quarter of the court seemed to take that to heart.

BERNSTEIN: On the other hand, it was also interesting to me that, both in the oral arguments and in the decisions, I didn't see a lot of reckoning with the idea that the President is the problem here because the President refuses to negotiate, the President refuses to allow his staff to be questioned and other investigations, the President refuses to turn over documents. They didn't really seem to want to confront head-on the aberrational nature of this President. So maybe I am not reading this object here, maybe I'm missing something.

MURRAY: I mean, I think it's a little oblique, um, and not very explicit, but there's this set of discussions and the Chief Justice, his opinion, in Mazars — I think it's between pages 4 and 11 — where he talks about, um, ordinarily, these types of disputes between the executive branch and Congress rarely reach a court. Like, that this is an unusual situation that we are in, and the reason they never reach the courts is because it is typical for the executive branch and Congress to engage in what he calls the “hurly burly of hashing it out” and they negotiate about these things and they come up with some compromise that is mutually amenable for both sides of — the president gives a little, Congress gives a little, and in the end it works out through this norm of compromise and negotiation, and that hasn't happened here.

And the reason it hasn't happened here is because this President, this executive branch, has been — from the start — uninterested in this negotiation norm. It's stonewalled Congress time and time again. So he does not say explicitly, “This is — we’re here because the President's stonewalls,” but there's this sort of snarky four pages where he's explaining, like, “This didn't have to happen. This ordinarily doesn't happen.” And then at the end of the opinion, he says, you know, “I'm writing one for the ages. Like, these disputes are hard to set standards for when they come up only once or twice a century, because this ordinarily isn't something that the Supreme Court has to get involved with. The President has brought us here.”

[A MOMENT OF SILENCE, THEN A LIGHT BIT OF MUSIC]

MARRITZ: I'm going to ask you guys both, if I could jump in here, um, about kind of how this now flows out to, like, any number of other cases that are still active around this President during the remainder of his presidency. I heard — I got an email today from a former Senate investigator who I sometimes talk to, Elise Bean, who kind of gave me her take on — on what it means for future congressional investigations, and I thought it was interesting. She cited the case of Don McGahn who used to be White House Counsel — lawyer to the president — and he's in the middle of a case right now, too, where his testimony was also demanded and he refused to give it. And she said, “This is the death knell for that argument in the McGahn case, too — the argument that the president is immune from subpoena.” So are there other cases, like McGahn — even beyond McGahn — that are going to turn on this in the next few months?

MURRAY: Well, I think any case that involves a member of the executive branch to whom a subpoena has been issued, this question of presidential immunity seems to have been dealt with, but that doesn't deal with the questions of presidential or executive privilege, right? So it may be the case that Don McGahn is now forced to provide testimony, but “What of that testimony can be disclosed and what is privileged?” I think, will be another set of questions that will be asked and likely will be litigated.

BERNSTEIN: Is there a message here for future presidents? “You can't act in the way that Trump has acted?”

MURRAY: [LAUGHING] I mean, I would hope that most future presidents know that — um, yeah, again, like, I'm laughing, because it — it just seems obvious to me, at least, how unorthodox this presidency is. And, you know, I think throughout much of the discussion, whether it's from the Court or from Congress, has been about making clear that this is unorthodox. This isn't how business is done or operated. And in many cases it's been down to the court to make that clear. And I'm just thinking about, for example, the DACA case from a few weeks ago, that's of a piece with this.

I mean, in that case, the court is not endorsing the DACA program, is not endorsing a particular immigration policy, but it is saying that if you want to dismantle this program, you have to do it in the ways that have been established. Like, there are actual procedures that have to be followed. This is how government works and you're not doing government right.

Whether there are future presidential candidates who are like, you know, “I like this idea of a rogue presidency,” that's a different story. But I do think we are seeing the guardrails that have been erected and that keep trying to check this President.

[A MUSICAL FLOURISH]

BERNSTEIN: So would you describe yourself as sort of, um, you know — to borrow a line from Hamilton — if the constitution is your client, would you describe yourself as relieved today?

MURRAY: Well, my client’s had a rough couple of years, to be honest. [MURRAY AND BERNSTEIN LAUGH]

Yeah, I think there is some relief. I mean, this idea of a kind of imperial presidency seems to have been rebutted at least in part today, or at least, you know, there will be another outing about whether or not Congress can check the president as this goes back to the lower courts to work this out in line with these guidelines.

Um, but the erosion of norms as much as rules and laws is what concerns me. And these particular cases were not just about laws, but about norms, and what has been undone in terms of these norms of how government operates is not necessarily going to be put to rights by a decision. Like, it really will require that these norms become embedded and observed once again.

[A MOMENT]

MARRITZ: You know, I'm just left with two things. One is we're not going to see the information that we I've been thirsting after for many years — Trump financial information — for some time, not before the election. Information that I think would really help us journalists and the American public understand our president. And number two is this. You know, I'm still thinking about Roberts sort of strongly tying any successful congressional subpoena to a legislative purpose. And so much of what Congress does is not strictly legislative — it's learning about how things are to figure out whether legislation is needed. And I just wonder whether that is a limit that, years from now, will seem too limiting, or could create problems for investigators in, you know, whole arenas of life that we have not contemplated.

MURRAY: That's a really great point. Um, like, Congress often goes on sort of fact-finding missions for which, you know, the eventual outcome is not obviously discernible from the start and they're just gathering information. And whether, when they seek to gather information from the president, this desire for a clear legislative purpose will be an impediment going forward. I think — I think it's a terrific point. 

BERNSTEIN: So, Melissa, did we learn anything else today?

MURRAY: I think one thing that we learned from this opinion was we learned a lot about Aaron Burr — um, more than, perhaps, Lin-Manuel Miranda has given us thus far. I think we also may have learned that Chief Justice Roberts has Disney Plus, because this was a very Hamilton-esque start to an opinion, um, not one that we typically see from the Supreme Court. So we got a really great introduction and wind up about the treasonous sequel of Aaron Burr and that was perhaps unexpected, but very welcome for seasoned Supreme Court watchers.

[A CLIP FROM THE MUSICAL HAMILTON BY LIN-MANUEL MIRANDA PLAYS, WITH MIRANDA SINGING, “PARDON ME, ARE YOU AARON BURR, SIR?”]

BERNSTEIN: TL;DR, Roberts wrote about Aaron Burr, who shows up in court in the early 1800s — this is after he shot Hamilton — and there’s a legal dispute with Thomas Jefferson. [A BEAT] Or, do read the opinion, and get the full story.

BERNSTEIN: Melissa Murray, NYU law professor and co-host of the Strict Scrutiny Podcast, thanks so much for joining us.

MURRAY: Always a pleasure.

[SLOW, DRAMATIC DRUMS-DRIVEN MUSIC PLAYS]

BERNSTEIN: So, Ilya, I just wanted to check in with you on, like, gut level. You know, we have been — for the past three and a half years — trying to untangle this giant knot that is the Trump Organization and the Trump family business, and it has been really, really difficult.

And I'm wondering, sort of, just, how you feel about in the wake of the opinions today?

MARRITZ: I feel optimistic. I mean, selfishly, as a journalist, [LAUGHS ABRUPTLY] I want to see this information that the House has requested. And I think the Supreme Court majority gave the House a manual and said, “This is how you can get that information — or most of that information. Do these things.” I am optimistic that Congress will not lose interest in this simply because the information cannot be surfaced in time for an election, which never was the stated purpose of it anyway.

I'm optimistic that Congress will continue to pursue the information, and that we'll learn some things. The public interest would be massively helped by us finally understanding the financials in a detailed way of the only president in a really long time who hung onto his business while in office.

[MUSIC FADES OUT]

BERNSTEIN: I feel relieved, as well. I feel that, after years of trying, we may actually be able to untangle this knot that is the Trump family business.

[TRUMP, INC. CREDITS MUSIC PLAYS]

BERNSTEIN: This show was produced by Meg Cramer and Katherine Sullivan. The editor was Eric Umansky. Jared Paul is our sound designer. Matt Collette is the Executive Producer of Trump, Inc. Steven Engleberg is the Editor-in-Chief of Propublica, and Emily Botein is the Vice President for Original Programming atWNYC.

We're digging into a thicket of Trump business matters — we'll be back later this month with our regularly scheduled episode.

I'm Andrea Bernstein. Thanks for listening.

[MUSIC OUT]

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.