Temporary Presidential Immunity
[TRUMP, INC. THEME STRINGS PLAY]
ILYA MARRITZ: When he was a candidate for President in 2016, Donald Trump didn't release his tax returns. And after he won, a reporter asked him —
REPORTER: and will you release your tax returns?
MARRITZ: — “How about now? Will you release your tax returns?”
PRESIDENT TRUMP: Uh, well, I’m not releasing the tax returns …
MARRITZ: “Clear up the whole Russia thing?” [BEAT] Trump said no.
TRUMP: You know, the only one that cares about my tax returns are the reporters, okay. You’re the only ones.
REPORTER: You don't think the American public is concerned about that?
TRUMP: No, I don't think so. I — I won.
REPORTER: Do you believe in the hacking —
TRUMP: [LAUGHING] I mean, I became President. No, I don't think they care at all. [APPLAUSE] I think you care. First of all, you learn very little from a tax return.
[LIGHT DRONE PLAYS]
MARRITZ: And for the first two years of Trump's presidency, it looked like the only way anyone was gonna get a look at his private business interests was through Robert Mueller's investigation. In the end, though, Mueller didn't really go there.
Then, in 2018, Democrats won control of the House. They promised to investigate. They called Michael Cohen to testify. Cohen told Congress Trump routinely inflated and deflated the size of his assets, as it suited him.
And in the span of just a few months in early 2019, four House committees made document requests for Trump financial information.
[MUSIC BECOMES LOUDER, MORE DRAMATIC]
ANDREA BERNSTEIN: We're standing outside of the iconic Thurgood Marshall Courthouse in Lower Manhattan, the one with all the columns. And a judge has just ruled that the subpoenas issued by the House of Representatives to Deutsche Bank are valid.
MARRITZ: My Trump, Inc. co-host Andrea Bernstein has been following the litigation for the past year. She was there as Trump fired back in the federal courts.
ARI SHAPIRO: So, after people had been waiting for years to see President Trump's tax returns for about an hour this morning, it looked like they actually might get a chance to. But no.
BERNSTEIN: Right. So it was not an ambiguous decision that this federal judge wrote. He said it was an extraordinary claim of immunity that the President was making, that it would stretch to cover every phase of criminal proceedings, including investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial, conviction, and incarceration.
MARRITZ: It wasn't only Congress demanding Trump's financials.
STEVE INSKEEP: Who wants the tax returns, exactly?
BERNSTEIN: So, the Manhattan District Attorney wants the tax returns for an investigation he is doing into whether Trump or third parties or his business committed felonies in New York. And this goes back to the investigation into the hush money payments into Stormy Daniels.
MARRITZ: Right away, the arguments made in court were a lot bigger than one man's taxes. They got to the very idea of oversight — the limits of presidential power.
[NPR INTERVIEW CLIP PLAYS]
AILSA CHANG: Okay, let me just get this straight. So Trump's team is arguing that Trump can not be investigated because … what? He has immunity?
BERNSTEIN: That's right. Trump's lawyer, William Consovoy, said he views the D.A. subpoena as, quote, “an inappropriate fishing expedition,” and that a sitting president has absolute immunity from investigation. So …
[A CLIP FROM ANOTHER INTERVIEW, THIS ONE ON MSNBC, PLAYS]
BRIAN WILLIAMS: That would put a president above the law.
BERNSTEIN: Not only the president, but anybody that he has worked with.
MARRITZ: For you, what does this all boil down to?
BERNSTEIN: So very much. Obviously, we all want to see and understand Trump's financial records because we're operating blind in terms of understanding the potential influences on the President of the United States.
And that's why the outcome of these cases is so significant — not just for this President and for our understanding of the influences at play on this President — but because of what it tells us about the rule of law itself.
MARRITZ: And so now we're here.
CHIEF JUSTICE JOHN ROBERTS: The first case we will argue today is case 19-715, Donald Trump v Mazars USA.
MARRITZ: The United States Supreme Court, on May 12, 2020, heard oral arguments remotely in Trump v Mazars, Trump v Deutsche Bank, and Trump v Vance.
I was listening intently, as was my co-host, Andrea Bernstein, and Melissa Murray, a law professor at New York University. We spoke right after oral arguments finished for the day.
MELISSA MURRAY: Thanks for having me.
MARRITZ: So, to begin, I’d really like to hear from each of you just one moment in oral arguments that, for you, really crystallized the conflict here, and at the end of this, I'll share mine. Professor Murray, do you want to go first?
MURRAY: Sure. Um, you know, there was this really interesting moment, I think, where, um, I believe it was Justice Sotomayor asked, um, of Jay Sekulow — who’s the President's personal attorney, um — why they were objecting to the prospect of the New York prosecutors having this information disclosed to the grand jury, given the nature of grand jury investigations. And Sekulow sort of, um, adverted to this idea that the prosecutor's office was just sort of rampant with leaks, and all of this information, though disclosed in secret to the grand jury, would be made public. And Justice Sotomayor, who, of course, came to the bench after a quite lengthy career as a prosecutor in that very same office — the Manhattan District Attorney's office — just seemed aghast at the idea that prosecutors — line prosecutors, like the ones with whom she had worked — would just be so freewheeling with information that had been disclosed in the grand jury.
JUSTICE SOTOMAYOR: Prosecutors have ethical obligations, um, with respect to grand jury investigations. They have to keep those investigations secret. They can be prosecuted if they leak that information. Umm, don’t we usually presume that state courts and state prosecutors act as they should, and in good faith? Even if you were to assume that, if you — [SEKULOW INTERRUPTS] — let me finish.
MURRAY: And, you know, her point was, the grand jury is a sort of sacred space. Prosecutors know this. The ethics that prosecutors, um, live by and doing their jobs makes clear that that's the kind of information that you just don't disclose or dish out, um, to anyone, certainly not the press. And so the idea that we would allow the President to have almost absolute immunity from a criminal prosecution because we were worried about prosecutors not being able to withhold that kind of information from public disclosure, to her, was just anathema.
BERNSTEIN: My, uh — what caught my ear came very early on in the hearings, also involved Judge Sotomayor when she was questioning Trump's lawyers.
SOTOMAYOR: Counsel, there is a long, long history of Congress seeking records … [FADES UNDER NARRATION]
BERNSTEIN: And, uh, essentially, what Trump's lawyers were saying is that you can't have a limitless investigative power.
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: And what interested me about that is that the reason that we are in this very place is because Trump has not cut the umbilical cord to his business. He has not divested. He has not separated himself from it. So it becomes almost impossible to have oversight of Trump the President without looking into his business dealings, which is, of course, where all of these investigations originated.
MURRAY: You know, I think it is true that we didn't hear a lot in this oral argument that was explicit about how unorthodox this presidency has been, but I think you saw glimpses of it. Certainly there was that moment from Justice Kagan where she discussed the idea that, in the ordinary course of things, Congress would have sought the subpoenas directly from the President. There would have been a back-and-forth negotiation between the executive branch and the House, and they would have come up with some sort of compromise that would have avoided any kind of litigation in the first instance. And with this particular President, every subpoena, every request for information has been stonewalled.
And so the House sort of found itself in this position where it was left, they believed, with no other choice but to request these subpoenas from these third parties to avoid the President entirely. And that's actually what has brought us to court, that this kind of inter-branch negotiation is typical and normal and part of a set of norms of the operation between these two political branches, and the fact that we're in court today is because this President hasn't acceded to those norms. So I think that was sort of what was on display here, too. Like, how much these norms have eroded.
MARRITZ: So, the moment that I am choosing is actually a lot of moments that happened in the first hearing. Uh, the Trump v Mazars and the Trump v Deutsche Bank, where, uh, in this instance, it was — Justice Kavanaugh was putting a question —
JUSTICE KAVANAUGH: Good morning, Mr. Letter ...
MARRITZ: — to Doug Letter, or the attorney for the House of Representatives. And, uh, Kavanaugh said, you know, “Just about any subpoena could be taken to have a legislative purpose.”
JUSTICE KAVANAUGH: Uh, I want to follow up on the line of questioning that several of my colleagues have pursued — the Chief Justice, Justice Ginsburg, Justice Alito, Justice Kagan, and others — which I think comes down to the idea of limitless authority and how to, uh, deal with that.
MARRITZ: How are you going to balance Congress's powers with the prerogatives of the presidency? What is the standard we can apply? And Doug Letter, the attorney for the House, really didn't have a response.
DOUGLAS LETTER: I — I don't know how the court would — the courts would do that without violating the separation of powers. Um, I was reminded recently by, um, the — yeah — Congressional leaders that, often, they're doing investigations, they don't know where the legislation might go at that point.
MARRITZ: And it kind of just crystallized for me, that the House of Representatives was actually very much on defensive turf. It was making its arguments on the turf that Trump's lawyers wanted them to be making the arguments on. And to answer what you were saying earlier, Andrea, Letter was not talking about the need for oversight. He wasn't talking about how different this administration is from all others, having a — an active businessman President and the ethics concerns around that. Uh, he was really, uh, being forced into a corner, trying to say, “Well, where does Congress' power end?”, and that — that was just sort of not a good position for him to be in.
MURRAY: And it wasn't just, I think, that the House was on the defensive and trying to figure out where Congress has power to request documents from the executive end and we saw from Justice Thomas that there was a question about “Did it even exist in the first instance?” Justice Thomas, the original originalist, was there on the court, asking this question whether it was in the Constitution that the Congress could request this kind of information from the President.
And, you know, there was this whole question of implied powers, and, if they were implied, what were their limits? And what was the scope of those implied powers?
MARRITZ: So, Melissa Murray, a lot of the pre-argument analysis, uh, focused around questions of how the Supreme Court could come to a ruling in a narrow way and, basically, sort of, like — evade the deep discomfort that it must feel around trying to basically decide in a tussle between Congress and the president. Now that we've heard those arguments, did you actually hear a lot of discomfort from the Supreme Court around deciding that question?
MURRAY: Well, I think we definitely heard some discomfort. We saw a little bit of dancing around that question, certainly from Chief Justice Roberts, who kept asking, “How can the court ever be in a position to understand what Congress's intent is in requesting information from the executive?” — um, whether the requested disclosures will actually inform legislation and the legislative process. We're sort of operating in a blind. And you saw this back-and-forth between the different Justices. Justice Sotomayor brought it up on one occasion where she said, you know, we have to actually operate on faith that what Congress is asking for is necessary for the legislative process. And we'll never actually know how it informs legislation, because Congress could, in the course of its investigation, determined that legislation isn't needed, or maybe it is. We will never know. And so, in the ordinary course of things, the position has typically been to defer to Congress when it's acting in its legislative authority.
The point of the President's argument, though, is that it's not a legislative effort at this point. It's a law enforcement or investigatory effort that is really a pretext to just nailing the President over and over and over again. And so the question is, can the court dig in and try and figure out if there's something legitimate afoot, or if there's something illegitimate and pretextual?
MARRITZ: And in this first question of Trump v Deutsche Bank and Trump v Mazars, was either side, in your reading, more successful in saying to the justices, “Here's the safe route. Here's the thing that you can do, and, and feel confident that you're upholding the Constitution and you're not going to totally rebalance the balance of the powers”?
MURRAY: Well, I think, um, the President's lawyers were very effective in the Congressional subpoena cases, and they raised this idea that what we need in this particular circumstance is a higher standard than just deference to Congress. So, some higher standard that Congress has to meet when it's requesting this kind of information.
And, you know, I think that is an argument that could appeal to both sides of the court, both the liberal and conservative wings. Because you could imagine, in a change of administration in divided government, that a Congress that was emboldened and empowered to make any kind of requests might also pepper a president — um, maybe one with more progressive or liberal leanings. So I could see both sides of the court being attracted to that kind of argument. But a similar argument was made in the case involving the Manhattan D.A., Trump v Vance, and in this particular scenario, the idea of a heightened standard — the court seemed to not be as interested in it.
Um, and again, there was a lot of pushback on the President's personal lawyer, Jay Sekulow, on this whole idea that the President might be immune from any kind of criminal investigation or any kind of requests for information in a criminal investigation because he was the President, and that that heightened standard that wouldn't apply to any other litigant would apply to the President.
JUSTICE SOTOMAYOR: A broadness immunity that Justice Thomas pointed out is nowhere in the Constitution. And, in fact, the Constitution protects against presidential interference with state criminal proceedings.
MARRITZ: The court seemed not to be amenable to that kind of argument at all. The idea of, the president's completely beyond the boundaries of any kind of criminal liability.
BERNSTEIN: I mean, one of the things that was very striking to me is — so, Breyer asked a question about McCarthyism.
JUSTICE BREYER: The fact that what I hold today will also apply to a future Senator McCarthy, asking a future Franklin Roosevelt or Harry Truman exactly the same questions — that bothers me. So, what do I do?
LETTER: Justice Breyer, I fully understand that concern. None of the subpoena recipients have complained about burden. The reason these subpoenas go back away is because, as you know —
JUSTICE BREYER: I'm sorry to interrupt you. I'm not talking about their burden. I'm talking about the President's burden in having to monitor, decide if there are privileges, uh, figure out what his answers are to all those documents you are requesting, which go, in my opinion, way, way, way beyond just tax returns.
BERNSTEIN: And it really struck me that the discussion was playing out on those terms and not on, you know, what we know to be the reality, which is that President Trump has resisted all forms of oversight, which is sort of what brought us to where we are today. And that even then the House’s lawyer, Doug Letter, couldn't quite articulate it. I'm wondering if that also jumped out at you.
MURRAY: Yeah. Well, it did seem clear that the President's lawyers, at least in the Congressional subpoena cases, and Noel Francisco, the solicitor general, were making the argument that this is a question about a rule for the presidency, not about this particular President. And in making that distinction, I think, again, as you say, they really put the House on defensive, because again, any rule that is fashioned here is one that will have to live forever, for any future president and any future Congress. And I think they were sort of subtly highlighting for elements of the court that this is something — could you imagine something like this happening with, you know, Joe McCarthy or Barack Obama and a Republican Congress that wanted to sort of harass him consistently? And they view this as a kind of presidential harassment by Congress, but it could go both ways and it could be incredibly detrimental to the office of the president, no matter who was in that office. So this is about the office itself, not the occupant.
MARRITZ: It was interesting to me how often we heard that phrase, “presidential harassment,” and it — it — it got me curious. [CHUCKLES] I think most Americans know that phrase as something that Donald Trump sometimes tweets. Uh, but this court seems to treat it as a real thing, as a — as a term that is understood in a certain way and that can be considered by the court. And yet there seemed to be no examples of presidential harassment actually offered, uh, whether contemporary or, you know, in the past.
MURRAY: It shows how successful the President and his affiliates have been in sort of framing this narrative, right? So the House, I think, has really been on the back foot and sort of explaining the need for this information or why they have subpoenaed these documents. And, you know, they just keep saying “oversight,” without explaining what that means.
And the President just keeps saying, “It’s harassment, it's harassment,” and it has trans— and, so doing, has transformed what would be considered, I think, in other times, ordinary and essential legislative oversight, into what accounts to bullying, harassment, and mere partisan politics. So, um, you know, if this is a game that at least the first battles are won on the field of communication, then I — I think the President certainly won those initial rounds by framing this as about harassment and not about legitimate government oversight and divided government.
MARRITZ: Andrea, you and I have been tracking oversight — this question of oversight around Trump really since the beginning of this whole project, whether it was through the Mueller Report or impeachment hearings, and, of course, the Democratic House's various efforts to get Trump financial information. And I wonder what you heard in today's arguments that might tell us something about where we're going to find the mechanisms of accountability going forward.
BERNSTEIN: I mean, the President has just resisted so many requests for public information and this to sort of the — the end of the line of that, at least the end of this line on these sets of cases about whether we can ever get a real window into the President's business which, uh, both influenced the President and his family prior his presidency, during his election, and possibly now. There’s no way for us to answer the question about now without seeing the record. So it becomes a sort of catch-22.
MARRITZ: Yeah. I mean, prior to this hearing, I was rereading some of the earlier court decisions. Uh, one of those was, uh, the district court ruling in Trump v Mazars, which reminded me that this is really not happening in the abstract — this is happening for real. So, back in 2018, the Office of Government Ethics said that it found an error in one of President Trump’s financial disclosure reports, and it had to do with the way that he had listed the payments to Michael Cohen that were ultimately connected to hush money payments to Stormy Daniels.
And the OGE really found that error. And that was part of the basis for the House Oversight Committee requesting these records from Trump's accountants, Mazars. I didn't really hear that reality in the arguments that much today. What I heard much more was hypotheticals.
BERNSTEIN: I mean, one of the things I wonder … and Melissa Murray, since I don't regularly cover the U.S. Supreme Court, I don't know how much of a straight line you can draw from the things that were discussed today and their ultimate opinion. So maybe you could shed some light on where you think that is going?
MURRAY: Well, so, you know, the court is making a rule that will apply going forward. And so I think part of the dysfunction that you're hearing, this idea that, you know, we actually have a real record here, and the court is instead sort of trading in these hypotheticals. “What if this? What if that?” — these slippery slope arguments about what might happen in the future.
And I think it's because they are very consciously aware that they are making a rule that will apply not to this Congress or this President solely, but any Congress or any president going forward. Um, but I think as you say, there is a bit of, I think, a sort of glossing of what's actually happening and, and you get the sense that maybe the Court views what is going on in this particular moment as aberrant.
[A MUSICAL BEAT PLAYS]
MURRAY: Like, “We are never going to have another President like this one who does not comport with the ordinary norms associated with the office — as one who stonewalls Congress. We're never going to be in a situation where Congress is so stymied and its efforts to do what might be considered ordinary oversight in any other administration.”
And — and you get the sense that maybe they're thinking that. But I think one of the arguments that the House could have made, and did not make as forcefully as perhaps it should have, was that this kind of conduct from the President now, if it is credited and legitimized by the court with a ruling that insulates the President from having to comply with Congressional subpoenas going forward, or any subpoena going forward, only emboldens future occupants of this office.
MURRAY: It was an argument that we heard repeatedly during impeachment. You didn't hear as much of it today, but I think that would have been the real argument for the House to underscore over and over again. Like, you know, leaving aside this President and this Congress, you don't ever want to put the President in a position where he can always override Congress by simply stonewalling, and because the Supreme Court equipped him with the ability to do so.
MARRITZ: Right. I heard a lot more about emboldening Congress —
MARRITZ: — than emboldening the President. Uh, let's talk a little bit about the role that the Department of Justice played in these arguments, because DOJ sent their own lawyers, who made arguments both in the first consolidated case, the Congressional case, and also in Trump v Vance. Uh, and they articulated a case that was both close to what the President's private lawyers were saying, and also slightly apart from that.
BERNSTEIN: Well, let me just note something about that that really struck me. We have a situation where the department that reports to the President's Attorney General, to Bill Barr, is coming in on the side of the President's business.
MARRITZ: Right. ‘Cause this is all about business records from the Trump Organization, not Trump's records as President.
BERNSTEIN: And that to me was quite striking to see them lined up, arguing before the Supreme Court today, and pointed to this very conundrum that the President hasn't separated himself from his business. So therefore, when the Justice Department comes in and makes an argument on the side of his business, it is in a sense giving him a special business advantage that another private businessperson might not have.
MARRITZ: Melissa Murray, what did you hear that caught your ear from the government?
MURRAY: Well, I think the government was trying to make a more limited argument than the Trump lawyers were. Um, but they were definitely on the same side. I mean, I think the Department of Justice was sort of arguing and their posture was that they were arguing on behalf of the executive branch, of which the Department of Justice is a part. So that was sort of the position that they were operating from. But, again, they were operating and arguing for a kind of broad theory of executive power — m, some might call it a unitary executive, um, power that we've heard about from the Bush administration — but a much broader sense of executive power then you saw coming out of older precedents that Congress was relying on, like United States v Nixon, for example, or Clinton v Jones. So this idea that the President is the entire executive branch and the entire — the entire executive branch speaks for the President and how DOJ was there— um, but they were arguing, not necessarily on behalf of Trump, President Trump, but the president himself, like, the president as an office. And that has drawn lots of questions more generally about the close ties between this Department of Justice and the President. Um, it's not unusual for the Department of Justice to be closely aligned with the administration, but this particular administration seems to have taken that even further than past.
MARRITZ: And I thought Carey Dunne, the lawyer representing Manhattan District Attorney Cy Vance, really actually wrapped it up nicely at the close of his remarks where he said, “Look, there’s no need here to upend precedent. You don't need to write a rule that's going to disturb federalism. You just let these subpoenas go forward.” And it just seems so calculated to reassure the Justices.
MURRAY: You know, I think that's right. He was a very effective advocate for his position. I think it would have been really nice if there was a way to sort of thread this through to the Congressional subpoena cases.
But it's not clear that the logic of his arguments are easily translated to the Congressional context, where the whole question of “What is the scope of Congress’ oversight power?” really was an issue. And just because you decide to let the subpoenas go forward for the Manhattan investigation, it doesn't necessarily suggest that you would allow the same thing to happen in the Congressional case, and, in fact, it might augur exactly in the opposite direction.
MARRITZ: Andrea, if you were a betting woman, would you bet that we will ever see these Trump family business records?
BERNSTEIN: Well, I mean, obviously, the clock is running out. Uh, and it's unclear exactly what calendar the Supreme Court is going to be issuing its decisions.
Many more Justices seem to be on the side of “We should allow a criminal investigation to go forward.” There seem to be quite a bit of squeamishness about saying, “No, we're not going to do that, that we are going to assume that a D.A. is acting in bad faith.” So, it seemed like it's possible that the Vance case could be allowed to go forward. The Vance investigation of the Trump Organization business records, also, because that involves a business — the Trump Organization — possibly other entities and possible third parties. So that could happen, but that's a grand jury investigation, as was pointed out, and to disclose a grand jury information, despite what Justice Alito said about how frequently that happens in New York, it's actually an E felony. And so if information were released to the Manhattan District Attorney, that doesn't mean it becomes public. And, of course, with each iteration, we get closer and closer and closer to the November election without a basic understanding of Trump's private business records.
[CURIOUS, WANDERING MUSIC PLAYS]
MARRITZ: Andrea Bernstein is the co-host of Trump, Inc. Melissa Murray is a law professor at NYU and a host of the podcast Strict Scrutiny.
One last note — if you want to learn more about Trump's accountants, who are a party in the Trump v Mazars suit, check out our last episode, "The Accountants.”
And we've linked in the show notes to another relevant story we made — this one about how back in 2012, Donald Trump Jr. and Ivanka Trump avoided a criminal indictment by Manhattan D.A. Cyrus Vance, Jr.
Have something you think we should report on? Send an email to email@example.com or find out how to securely share documents with us at our website, TrumpIncPodcast.org.
This episode was produced by Katherine Sullivan with Alice Wilder. It was edited by Eric Umansky and Andrea Bernstein. Jared Paul does our sound design and original scoring. Hannis Brown wrote our theme and additional music. Special thanks to Sarah Qari.
Matt Collette is the Executive Producer of Trump, Inc. Emily Botein is the Vice President for Original Programming at WNYC, and Stephen Engelberg is the Editor-in-Chief of ProPublica.
I'm Ilya Marritz. Thank you for listening.
[MUSIC PLAYS OUT]
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.