NICK EICHER, HOST: It’s Monday morning and back to work on The World and Everything in It. Today is the 1st day of June, 2020.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
Well, the Supreme Court finished up with oral arguments last month. Now the justices are busy writing opinions and we expect some later this morning. I’ll read over them and have analysis for you tomorrow.
Before we get into remaining arguments, I’ve got one surprise decision to report. It came in late on Friday, a 5-4 ruling against a church, with Chief Justice John Roberts joining the liberal justices to form a majority.
Briefly, the facts. A church in California asked the Supreme Court to lift new state restrictions on in-person religious services. South Bay United Pentecostal Church said Governor Gavin Newsom’s order favors secular business over houses of worship. His order imposes 25 percent occupancy caps on some activities, but not others. It doesn’t impose the cap on restaurants, grocery stores, shopping malls, hair salons and the like. But houses of worship didn’t make his list, something the church says interferes with its First Amendment rights.
EICHER: And that matters. The Supreme Court previously decided that if the government wants to burden any of the guarantees of the First Amendment, it must meet two criteria.
First, the government must show a compelling interest. Public-health needs, namely combatting spread of disease, does meet that first prong.
The second prong government must meet is that its restriction is narrowly tailored; that is, written carefully, to place as few restrictions as possible on first liberties.
REICHARD: The majority justices issued a one-sentence decision not to issue the injunction. That’s not unusual.
But what made this a surprise is that Chief Justice Roberts wrote his own concurring opinion. He cited the pandemic death toll and that there’s no known cure. Public-health officials acting in good faith, he wrote, should have the say given the changing nature of the coronavirus. He said church services are more like concerts and spectator sports; lots of people together for extended periods of time.
EICHER: The problem with that, according to the four dissenting justices, is that one of those is not like the others: the Constitution provides no express right to attend concerts or sporting events, where the First Amendment plainly protects the free exercise of religion.
The dissenters were Justices Brett Kavanaugh, Neil Gorsuch, Samuel Alito, and Clarence Thomas. They wrote that the majority failed appropriately to analyze the issue. Namely, it skipped over the “narrowly tailored” prong of the analysis.
REICHARD: That ruling came just hours after the High Court also denied a request from two churches near Chicago for relief from 10-person limits on religious services. That case became moot after the state issued new guidelines similar to California’s.
These rulings are significant, but they do not shut the door to future requests for relief from shut-down orders.
Well, five arguments remain for us to cover. Today, we tackle two disputes related to President Donald Trump’s financial records. These arguments took three-and-a-half hours, and they are distinct cases, but the issues are almost identical. So for the sake of simplicity I’ve edited audio from each one, but I’ll use them interchangeably to keep an easy and logical flow.
EICHER: So the question for the court is whether the law shields the president’s financial records from subpoena or investigation, including from the time before he took office.
Here, three different committees of the House of Representatives subpoenaed eight years of the president’s financial records. They did not subpoena Trump personally. They subpoenaed his accountants and lenders.
House committee members say they need the records to help them craft new laws about money laundering, conflicts of interest, and foreign interference in elections.
That one’s a federal level case.
At the state level, the District Attorney for the County of New York subpoenaed similar records as part of a criminal investigation. That involves alleged payments to two women as “hush money.”
REICHARD: President Trump sued to block the subpoenas as an illegal overreach and a fishing expedition by political opponents, all Democrats.
Justice Clarence Thomas asked a question no doubt on the minds of many people in these hyper-partisan times. Here he addresses Jeffrey Wall, Deputy Solicitor General, who argued in support of the president:
THOMAS: What if it was clear from those statements that you reviewed that their intention was actually to remove the president from office rather than the sort of pretextual legislative reasons?
WALL: Yes. I think they made clear that the subpoenas are not in aid of valid legislation.
EICHER: And that subtext of pretext informed several questions, and not only from conservatives.
Listen to Justice Stephen Breyer lay out his concern about fairness. Here’s an exchange between Breyer and the lawyer for the House committees that issued the subpoenas, Douglas Letter is his name. Letter pointed out the documents his clients seek are for private citizen Donald Trump. Justice Breyer was skeptical:
BREYER: But the subpoenas that I’ve seen go far beyond that. They apply to 15 Trump affiliated entities, they ask for all documents related to opening of accounts, due diligence, closing, requests for information by other parties, etc. And if somebody subpoenaed you for that information, or subpoenaed your tax accountant wouldn’t you at least want to know what was being turned over? Wouldn’t you want to ask them? And might that not take time? And might that not take effort? So my problem is there may be burdens here and not just political burdens. And 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.
REICHARD: Letter assured him that the subpoena recipients haven’t complained. Besides that, to do a good job investigating money laundering, the committees need lots of financial documents.
Much discussion had to do with what’s required to justify subpoenas involving a sitting president. What limiting principle should apply to balance competing interests?
Justice Sonia Sotomayor said Congress has a long history of getting records from presidents, and that congressional subpoenas are valid so long as, well, I’ll let her explain.
SOTOMAYOR: So long as there is a conceivable legislative purpose and the records are relevant to that purpose. I see a tremendous separation of powers problem when you’re talking about placing a heightened standard on an investigation that a committee is embarking upon.
Yet, Chief Justice John Roberts saw a problem with “any conceivable” legislative purpose being enough to justify a subpoena.
ROBERTS: The quotes in your brief is that it “concern a subject on which legislation could be had.” Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write?
LETTER: Uh, your Honor…
Letter struggled with this, eventually arguing that Congress generally has broad subpoena powers, not explicitly given, but implied from its other duties. Justice Thomas pinned him down:
THOMAS: Can you give me another example of a power, a legislative power, that is implied?
LETTER: (long pause) I’m sorry, your honor. I’m not coming up with something.
The other side came in for tough questioning, as well. Here’s Justice Elena Kagan addressing President Trump’s lawyer, Patrick Strawbridge:
KAGAN: And what 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.
Well, Strawbridge countered that the weight in this case actually favors the house committees. Those subpoenas go far beyond anything in presidential history. But what matters, he said, is that no legitimate legislative purpose exists for them.
Justice Ruth Bader Ginsburg turned the tables and drew on history in another question to Strawbridge:
GINSBURG: In so many of these prior cases, there was a cooperation. For example, tax returns. Every President voluntarily turned over his tax returns. So it gets to be a pitched battle here because President Trump is the first one to refuse to do that. But the aura of this case is really sauce for the goose that serves the gander as well. So how do you distinguish, say, Whitewater, when President Clinton’s personal records were subpoenaed from his accountant, or even Hillary Clinton’s law firm billing rec…
But consent isn’t the measure of constitutionality, Strawbridge replied. And the Clinton cases didn’t challenge scope or legislative authority to request documents.
I’ll end as I began, with Justice Thomas. The house committee lawyer assured the justices if the White House feels overwhelmed with too many subpoenas from the House and the Senate, it can cry uncle and Congress will stop issuing them. Justice Thomas wasn’t buying it.
THOMAS: Why would it be limited to the House and the Senate? I mean, it could be every grand jury. It could be every prosecutor. The concern that we had in the Clinton case is, at some point, this thing—it gets out of control, as one could be manageable, but 100 could be impossible…
LETTER: Not a single thing is required of the president or the White House.
THOMAS: I think we all know it’s about the President.
In case you didn’t catch that —the Chief Justice inadvertently talked over him— Justice Thomas said, “I think we all know it’s about the president.”
Justice Thomas speaks as a man who was once targeted by Democrats in Congress to keep him off the Supreme Court.
Not to say these cases will be decided cleanly. They likely won’t be. The justices will have to come up with some limiting principle to cover subpoenas that aren’t mere pretexts for political shenanigans and that also permit legitimate oversight.
We could wind up with different opinions in the state case versus the federal case. And that’s this week’s Legal Docket.