Tuesday, May 12, 2020

"God save the United States and this honorable Court!"


I know non-lawyers think Supreme Court justices are supposed to reveal their sentiments in oral arguments, like Justice Ginsburg clearly did,  And sometimes that happens.  But there is a concept in argument known as "argument to inquire," and that's what oral arguments are supposed to be for.  Because of that, more often than not the arguments go like this:

Justice Roberts returned to the concept of presidential “harassment,” asking Letter to elaborate on why the House investigation is not harassing Trump.

“You haven’t clarified the limits on this power,” Roberts asked. “What are the limits?”

Letter said that if there are so many subpoenas issued that “the White House only has the capacity to answer subpoenas, that would be enough.”
That sounds like a game of "Gotcha!," but honestly, that's what oral arguments are for: to inquire into reasoning.  Both parties have already submitted extensive and carefully written briefs replete with arcane arguments and stuffed with citations like the proverbial Christmas goose.  Oral argument is a time for judges to probe those arguments with counter arguments; not necessarily because they reject the arguments being made, but literally to ask questions that will help them argue for a position in chambers, and even create an argument in a majority, concurring, or dissenting opinion.  so when Roberts is asking for limitations on the power of a House investigation, he's not rejecting Letter's (the House counsel) argument; he's wondering how far it goes, and does the logical absurdity of its outer reaches undermine the argument itself?  Roberts might be sympathetic to Letter's position, arguendo, but he will have to make an argument to the other 8 justices, and maybe to posterity.  He doesn't want to present an argument that is easily shot down because he didn't carefully consider all the consequences of it, and found what he thought was a fortress was just a cardboard box.

This is not to say Justices don't reveal their limitations:

Justice Thomas seemed to question whether Congress even has the power to issue subpoenas for a legislative purpose. Thomas asked Letter questions about that power being implied by the Constitution, and he sought examples for the earliest instances of Congress issuing legislative subpoenas and issuing those subpoenas for private individuals.

Trust Thomas to take the most extreme and radical position possible.  On the other hand:

Justice Sonia Sotomayor slapped down the idea that the courts should consider the constitutionality of the potential legislation a subpoena might produce, when weighing the legality of such a subpoena.

“You’re asking the court, in the guise of a heightened review standard, to speculate as to legislation that is not in effect yet,” she said, in comments that came after Justice Alito asked Wall to elaborate on the idea.
That is Sotomayor rejecting a particular argument because it is so weak; not stating a preference as to the outcome of the case.

Oral argument is a chance to air out arguments that might sound better in your head than in reality.  Sometimes, though, it is clearly the cat playing with its prey before devouring it:

Justice Sotomayor gave a pretty piquant example of the distinction between immunity granted to acts taken by government workers in other branches acting in their official capacity versus in their personal capacity.

“We only give immunity for official acts,” Sotomayor said. “If judges sexually harass somebody, they can be sued,” she added, telling Sekulow he was “asking for broader immunity than we typically grant.”

Jay Sekulow is getting hammered.  Any justices who are silent and thinking about taking up Sekulow's argument in chambers know they'll be writing a dissenting opinion, at best.  It's probably not worth it.  No Justice wants her/his opinion to live in the infamy of ridicule.

How will this go?  I tend to agree with George Conway, there's no way the Supremes put Trump above the law (which is pretty much Sekulow's argument, and it's getting a chilly reception).  Asking for limitations on Congressional subpoena power seems pretty reasonable to me; the Court is never going to give one branch of government carte blanche to do as it wishes.  However, an argument like this will never make it out of chambers onto paper:

Alito carved himself out as a strong opponent of this Congress with that line of questioning, suggesting to Letter that while the House subpoena might not be a practical burden on the President, it could still constitute harassment by being politically damaging.

“If they were solely for harassment, they would not meet the standard,” Letter said. He never came up with a specific example, saying that executive and states secrets privilege could “enter” to limit Congress from issuing subpoenas for documents of a sitting President held by third-party custodians.

Because "political damage" would be an impossible legal test for the Court to articulate, and would put the Court precisely where it doesn't want to be:  in the political arena squarely between the other two branches.

The oral arguments are interesting, but not necessarily revealing; except for Sekulow:  he's on the menu this morning.  I'm a bit more interested in this argument, which, like Sekulow's, is actually on the New York state's effort to get at Trump's financial records (I really don't see how those are protected at all):

Solicitor General Francisco is trying to draw a line under questioning from Chief Justice Roberts in how far the government’s position goes.

“I actually think that Mr. Sekulow makes a very strong argument on the immunity issue, we just don’t think its one the court needs to address,” Francisco said. “All we are saying is that unless and until the special need issue is met at the threshold, there’s no need to address the broader immunity issue in this case.”

I haven't read the briefs, I don't know what the "special need issue" legal argument is.  This is an interesting argument, however:

He breathtaking [sic] cites “the risk of local prejudice,” and noted that New York elects its judges — they’re not impartially appointed by a President and confirmed by an impartial Senate, like the Supreme Court.

“The President is the sole person in whom all Article II powers are vested, so he is entitled to a measure of protection above and beyond the ordinary rules,” Francisco said. “He is the sole person in whom all executive powers are vested.”
Locally elected officials suffer from "local prejudice" but the President and the Senate are "objective"?  I wanna see some Justice write that argument into a judicial opinion.

Justice Gorsuch is asking how the special need standard would actually work. If a local prosecutor were investigating a tax-related crime, for example, and the defendant was the only person who had the records, would that already meet the standard.

“It would depend on who the defendant is,” Francisco replied. “He cannot indict the President of the United States until he leaves office.”

Francisco added: “So he wouldn’t need the information now to indict the President of the United States.”

I'm really curious how any portion of that argument stands up against Clinton v. Jones, especially since the case before the court involves third-party custodians of documents related to the sitting President's companies which may be involved in criminal activities and there is no law or precedent that keeps a state from indicting a President under its laws.  Which means this argument is just baseless all the way around.

Justice Alito is attuned to the real risk that emanates from this case: Vance might leak Trump’s financial records to to the New York Times.

“We both know prosecutors have media sources,” that they leak to, he said, “including specifically the New York Times.”

“You’re not aware of this ever happening? Your office is never requested by media in the New York City area to disclose confidential information?” Alito asked.

“They ask all the time your honor, and the answer is consistently no,” Dunne replied.

I really don't think Alito's gonna get anyone else on the bench to go along with him on this "political harassment" defense.  Well, maybe Thomas.

Dunne just pointed out a big reason why the country’s thousands upon thousands of District Attorneys would not fling flurries of subpoenas at President Trump, were the Supreme Court to rule in his favor.

The Trump Organization is based in New York City, Dunne said. The jurisdiction itself is a limiting factor, he added.

Change the facts, change the outcome, my torts professor taught me.  It's a fundamental tenet of law.  And as Dunne points out, this is a fact that won't change.

Roberts (and Justice Thomas) want Dunne to “articulate precisely what standard should apply in your case.”

Dunne said that prosecutors should have to show an ability to yield relevant information for the investigation, but that submitting any grand jury probe which touched on a president to procedural challenges from the White House would “shut it down.”

“A grand jury shouldn’t be burdened by procedural challenges and delays because it’s a confidential process and not an adversarial proceeding,” he said.

This is an example of what oral arguments are for; and shows Dunne was much better prepared than his House counterpart.

If you want to follow this in more detail, complete with legal commentary, may I recommend this thread:
For example:

BTW:

This would be a fine example of why:

And Dunne didn't, as reports have it, throw Clinton under the bus:

I always prefer transcripts or first-person reports of legal proceedings over new stories, no matter how contemporaneous the latter are.
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