Notes on an Oral Argument: The Questions Asked, the Answers Given, and What They May Augur for the Supreme Court’s Decision in the Congressional Subpoena Cases

Posted in: Government

In May, the Supreme Court heard oral argument in two critical separation-of-powers cases regarding demands for President Trump’s financial records. The first—actually two cases consolidated by the Court—concerned congressional subpoenas served by three different House committees. The other involved a subpoena served by the New York District Attorney. The cases are now pending at the Court and likely will be among the last cases decided this term.

Oral argument in each case lasted about an hour-and-a-half—a longer-than-usual time for argument. The argument transcript in the House subpoenas case is nearly 100 pages and provides a window into a number of aspects of the case.

After oral argument, the conventional wisdom was that the Supreme Court would reverse the federal appeals courts’ decisions refusing to quash the House committee subpoenas. In this article, I explain why I agree with this view and also offer a number of observations based upon my review of the transcript.

The Order of the Justices’ Questions

Because the Court conducted oral argument by phone, the justices asked questions in order of seniority. Chief Justice Roberts allowed each lawyer to make a brief opening statement then asked the first question. The justices then asked questions in the following sequence: Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh.

Sometimes this format promoted continuity, other times it disrupted the flow of the argument. As to the former point, for example, Justice Breyer was able to follow up on questions about Watergate asked by Justice Ginsburg of President Trump’s lawyer, Patrick Strawbridge.

As to the latter, even though Strawbridge did not clearly answer Justice Breyer’s question, the argument changed course when Chief Justice Roberts moved from Breyer to Justice Alito. Alito dropped a marker for the conservative justices when he asked Strawbridge whether a congressional subpoena may be justified on the grounds that one House of Congress “wants to use the President as a case study for possible broad regulatory legislation?” (It must be noted that Strawbridge came back to Breyer’s question and clarified his answer at the very end of the argument, during his rebuttal.)

Cards on the Table: Questioning by Justices Alito and Sotomayor

During oral argument a justice may probe a position by asking an advocate for elaboration or pressing on vulnerable points. Other times a justice may appear to become an advocate, asking questions that reiterate the position advanced by one of the parties. This argument included both types of queries.

Justice Alito’s question about using the President as a case study for legislation put Trump’s position in the best possible light, suggesting that Congress was singling out the President for scrutiny without any justification for doing so. Strawbridge reiterated certain points from his argument then hit the softball question out of the park:

[T]o directly answer the question, no, the President’s personal papers are not related to anything having to do with the workings of government. . . .

You could have subpoenas seeking all of Jimmy Carter’s financial history simply because he was a peanut farmer and they want a case study on agriculture. You could have all sorts of requests for medical records, for educational records, any imaginable detailed personal records because Congress does have the general power to legislate in lots of areas.

Justice Sotomayor did not allow the answer to go unchecked. In this case she served as Justice Alito’s counterpart on the left, a role heightened by the fact that her turn to ask questions came right after his. Sotomayor’s question noted the (1) long history of Congress seeking records from the President, (2) prior Supreme Court cases articulating the broad “relevant to conceivable legislative purpose” standard to justify a congressional request, and (3) a “tremendous separation of powers problem” raised by a more demanding standard. Then she challenged Strawbridge’s claim that the records sought are not related to “the workings of government”:

[A]re you disputing that the stated purpose of the Intelligence Committee subpoena at issue, investigation [of] efforts by foreign entities to influence the U.S. political process[,] . . . [that] the financial records . . . were irrelevant to that purpose and that’s an illegitimate purpose by the . . . Intelligence Committee?

Strawbridge essentially answered yes, the records were not relevant. It was a bit hard to follow his explanation as he mentioned “presidential finances” in his answer and Justice Sotomayor interrupted to point out that the subpoena sought records prior to Trump becoming President. The colloquy became tangled and ultimately Strawbridge argued that the case law did not support putting “any finger on the scale for Congress’s asserted legislative power in this case.” Chief Justice Roberts then moved on to Justice Kagan.

Cards Close to the Vest: Questioning by Justices Gorsuch and Kavanaugh

Much has been made of the fact that President Trump’s appointees, Justice Gorsuch and Justice Kavanaugh, did not agree in Bostock v. Clayton County, the Court’s recent decision holding that the federal law prohibiting employment discrimination applies to gay, lesbian, and transgender employees. (Gorsuch wrote the majority decision that five justices joined while Kavanaugh and two other justices dissented.)

Justices Gorsuch and Kavanaugh nonetheless vote together far more often than they disagree. Not only do they seem likely to vote together in the House subpoenas case, they took a similar approach in oral argument. Both asked straightforward probing questions of each lawyer.

Justice Gorsuch questioned both sides on the appropriate standard for a court to apply when reviewing a challenge to a legislative subpoena. He questioned the attorneys supporting Trump’s position—Strawbridge and Deputy Solicitor General Jeffrey Wall—on why the record did not establish a sufficient “legislative need” to enforce the subpoenas.

When House Counsel Douglas Letter presented argument, Justice Gorsuch pressed him on whether the “legislative purpose” standard applied by the appeals courts was too lenient, expressing concern that it was “very broad—maybe limitless.” (Letter’s answers to questions about this concern are discussed below.)

Justice Kavanaugh, meanwhile, asked practical questions of both sides. The justice asked Strawbridge how the more demanding “demonstrably critical [need] standard” he advocated “would play out in practice in a case like this.”

With Letter, Justice Kavanaugh returned to concerns that the “legislative purpose” standard was too deferential to Congress. Noting hypothetical questions posed during oral argument about whether, for example, congressional committees could serve subpoenas for personal records on members of Congress, he asked, “isn’t the whole point that once you start down this road and the Court articulates too low a standard, that something like that will start happening?”

The Performance of House Counsel

As noted earlier, after oral argument, many commentators said they expect the Court to reverse the judgments of the federal appeals courts upholding the subpoenas. This seems likely because a number of justices consistently expressed concerns that the “conceivable legislative purpose” standard for evaluating objections to a subpoena was too lenient and would enable Congress to harass the President with a barrage of demands for documents.

Many commentators also were critical of House counsel for failing to adequately address these concerns during oral argument. There is some merit to this criticism. Ironically, Letter stumbled as much when he was asked friendly questions as hostile ones. After Justice Alito aggressively questioned Letter about the lack of protection for the President, both Justices Sotomayor and Kagan gave him a chance to address this concern.

Letter’s answers to these friendly questions came across as rote and flat. He reiterated the “valid legislative purpose” standard and indicated that courts should defer to Congress’s judgments about its legislative priorities.

Letter avoided making an aggressive factual defense of the subpoenas. Hindsight is 20-20, of course, but it seems that more could have been made of the need for Congress to consider the need for additional legislation in the areas of governmental ethics and foreign electoral interference given the record of President Trump in these areas.

Finally, again with the benefit of hindsight, it seems that a number of the justices were looking for Letter to make a concession that would acknowledge the reasonableness of their concerns about harassment. Yet he steadfastly refused to negotiate against himself and maintained that the appeals courts applied the correct legal standard and reached the correct results in upholding the subpoenas.

Letter may have made the strategic decision to maintain his position rather than make a concession at oral argument. The wisdom of this approach depends upon whether five justices were persuaded by his answers to the questions about presidential harassment. After reviewing the transcript, it seems that the five conservative justices were not convinced by Letter’s presentation.

Chief Justice Roberts is the Swing Vote

Following the retirement of Justice Kennedy, Chief Justice Roberts has emerged as the swing vote on the Court. In this case, it is a virtual certainty that the Court will reverse the judgments below unless he votes to affirm. However, Roberts did not seem to be persuaded by Letter’s answers regarding presidential harassment, commenting at one point, “your test is not really much of a test. It’s not a limitation.”

Accordingly, I agree with the conventional wisdom that the Court will vote to reverse the judgments below. My guess is that the vote will be 5-4 along ideological lines. If the Court does reverse, the challenge for the majority will be to articulate a more demanding standard that does not impermissibly intrude on how Congress develops and considers possible legislation.

Justice Sotomayor pressed this point effectively during her questioning of Wall. Developing legislation is a fluid process. It would be disruptive and discouraging for Congress to have to satisfy, in her words, “a heightened review standard . . . [for] legislation not yet in effect.”

The deferential “relevant to conceivable legislative purpose” standard applied by the courts, including the federal appeals courts in these cases, shows respect for Congress as a coordinate branch of government in its dealings with the President. The Roberts Court seems likely to shift the balance of power here in favor of the executive branch. We’ll know for sure soon enough.