Podcast Summary: The Political Scene | The New Yorker
Episode Title: Trump’s Day at the Supreme Court, Remote and Live-Streamed
Date: May 14, 2020
Host: Dorothy Wickenden
Guest: Jeffrey Toobin
Overview
In this timely episode of The Political Scene, Executive Editor Dorothy Wickenden is joined by New Yorker staff writer Jeffrey Toobin to dissect the Supreme Court arguments over whether President Trump is above the law regarding his tax returns and financial records. The discussion explores the unprecedented remote and live-streamed nature of the proceedings, the legal nuances of congressional and grand jury subpoenas, and the broader implications for executive power, accountability, and the upcoming election.
Key Discussion Points & Insights
1. Novelty of Remote and Live-Streamed Proceedings
- Structured Format: The Court’s traditional free-for-all questioning format was replaced, with each justice called on in turn (04:38).
- Jeffrey Toobin: “This has been very structured where Chief Justice Roberts gives each, calls on each justice in turn to ask questions. And, you know, frankly, the most surprising thing is that Clarence Thomas, who goes years without asking questions, has been a very active participant in this.” (04:38)
- Public Access: Live audio provided unprecedented public access, a change forced by the pandemic.
- Toobin criticizes prior practice: “It really is just outrageous that they haven’t done it before. The virus forced them to.” (05:31)
2. The Two Supreme Court Cases
- Congressional Subpoenas: Three House committees are seeking Trump’s banking and financial records (06:23).
- Legal Standard: Congress has oversight as long as the investigation serves a legislative purpose.
- Trump’s lawyers argue it’s a “fishing expedition” to embarrass the president, but historical precedent (e.g., Whitewater) shows Congress investigates private matters too (08:28).
- Legal Standard: Congress has oversight as long as the investigation serves a legislative purpose.
- New York Grand Jury Subpoena: Manhattan DA Cyrus Vance seeks Trump’s tax returns in a criminal investigation (06:23).
- Heightened Legal Value: Grand jury subpoenas receive greater deference from the courts.
- Toobin: “There is a great tradition that everybody has to answer a grand jury subpoena that we have very, very narrow exceptions to…” (07:06)
- Unknown Scope: The specific focus of Vance’s investigation isn’t public, but it relates to possible hush money payments and misuse of corporate funds (11:19).
- Heightened Legal Value: Grand jury subpoenas receive greater deference from the courts.
3. The Fight Over Presidential Immunity
- Trump’s Lawyer (Jay Sekulow): Argued for temporary immunity from investigation or prosecution while in office.
- Sekulow: “We’re asking for temporary presidential immunity… There is one president.” (03:17)
- Judicial Skepticism: Both liberal justices and Chief Justice Roberts appeared to push back on such sweeping immunity (14:51).
- Precedent: In U.S. v. Nixon and Clinton v. Jones, the Court unanimously rejected presidential immunity claims.
- Toobin: “No one is above the law. You have to give the deposition… Trump doesn’t have to do anything. His accountants simply have to turn them over.” (15:05)
4. The Stakes and Political Impact
- Unfamiliar Transparency: Trump’s refusal to release tax returns breaks with decades of precedent. The content of those documents, including possible Russian entanglements, remains a critical and unresolved question (10:10).
- Timing and Election: There’s a real possibility the Court will issue a high-minded opinion but remand the case for further proceedings—delaying any release of documents until after the 2020 election (19:09).
- Toobin: “What that will mean in the real world is that the Supreme Court will get credit for saying the president isn’t above the law, but it will delay the case till after the election.” (19:09)
5. The Role of Trump's Supreme Court Appointments
- Gorsuch & Kavanaugh: Both were active, but their views remained closely held. Kavanaugh, notably, is an advocate of expansive presidential power, a likely reason for his appointment (16:49).
- Toobin: “This is right in the wheelhouse of why he was named in the first place. And it could turn out to benefit the president enormously if this is a close vote and Gorsuch and Kavanaugh vote with the president…” (16:49)
6. The Impact of COVID-19 on Public Attention
- Despite the importance, Trump’s legal issues have largely faded from public view due to the pandemic (17:56).
- Toobin: “The great story of the Trump years is that the polls never change...if this stuff comes out, will it affect the polls very much?” (20:49)
Notable Quotes & Memorable Moments
-
On the Unprecedented Format:
“The most surprising thing is that Clarence Thomas, who goes years without asking questions, has been a very active participant in this.”
— Jeffrey Toobin (04:38) -
On Presidential Immunity:
“…he makes a very, very expansive claim. He doesn’t say simply that Vance has no right to the tax returns. He says Vance has no right to investigate the president at all.”
— Jeffrey Toobin (12:56) -
On Potential Supreme Court Ruling:
“What would really be a statement that no one is above the law is if they simply affirm the lower court decisions and say, turn over the damn records now.”
— Jeffrey Toobin (19:09) -
On the Political Impact:
“The great story of the Trump years is that the polls never change.”
— Jeffrey Toobin (20:49)
Timestamps for Key Segments
- [01:45] — Introduction and context of Supreme Court hearings
- [04:05] — Discussion of remote, live-streamed Supreme Court proceedings
- [06:19] — Explanation of the congressional and grand jury subpoena cases
- [08:28] — Legal standards for congressional investigations
- [10:10] — Significance of Trump’s tax returns and the Russia question
- [11:19] — Details on the Manhattan DA’s grand jury investigation
- [12:41] — Background on Trump’s lawyer, Jay Sekulow
- [14:51] — Legal precedent and challenge to presidential immunity
- [16:49] — Role and possible leanings of Gorsuch and Kavanaugh
- [18:19] — COVID-19’s effect on public attention to Trump’s legal battles
- [19:09] — Likelihood and consequences of a Supreme Court ruling
Conclusion
This episode offers a concise yet thorough analysis of the high-stakes Supreme Court arguments over Trump’s financial records, the limits of presidential immunity, and the dynamic between political timing and the law. The conversation draws out the drama of an unusually public Supreme Court process and highlights the enduring question: Is the president truly above the law, or will the Court reaffirm the principle of legal equality, even if delayed until after a pivotal election?