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The Political Scene | The New Yorker
Trump’s Day at the Supreme Court, Remote and Live-Streamed
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Trump’s Day at the Supreme Court, Remote and Live-Streamed
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- [00:00]
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- [01:46]
Dorothy Wickenden
This is the Political Scene, a weekly conversation with New Yorker writers and guests about politics. It's Thursday, May 14th. I'm Dorothy Wickenden, executive editor of the New Yorker. This week, for the third time in recent US History, the Supreme Court is considering whether the president is above the law. On Tuesday, the court conducted oral arguments in a pair of cases about efforts by three House committees and by New York prosecutors to obtain Trump's tax returns and other financial documents. Trump lost at every level of the judicial system in both cases. But his lawyer, Jay Sekulow, who spoke for the president against the Manhattan da, argued again that the president is entitled to temporary presidential immunity from any investigations or prosecution.
- [02:39]
Jay Sekulow
Well, he's the President of the United States. He is a branch of the federal government.
- [02:45]
Dorothy Wickenden
We only give judicial officers and congressional officers immunity for acts within their official capacity. If they don't. If judges sexually harass someone, we've said that's not within judicial functions, they can be sued. If congressmen do the same thing, they can be sued. So my question still comes. You're asking for a broader immunity than anyone else gets.
- [03:18]
Jay Sekulow
Well, we're asking for a temporary. Do we have time for a brief answer, Counsel? I will. We're asking for temporary presidential immunity. I would point out that under New York state law, witnesses before a grand jury are not sworn to secrecy. They can state that they testified and what the nature of their testimony was. I'd also like to point out that there are hundreds of members of the United States Congress and 100 members of the United States States Senate. There is one president.
- [03:44]
Dorothy Wickenden
Jeffrey Toobin, a New Yorker staffer, joins me to discuss how the Roberts court might rule in these cases and how Trump has succeeded thus far in overcoming the damages of pre presidential sex scandals, the Mueller investigation, and impeachment. Hi, Jeff. Great to have you back.
- [04:03]
Jeffrey Toobin
Hi, Dorothy.
- [04:05]
Dorothy Wickenden
So before we get to the specifics of these cases, I wanted to ask you about the novelty of the proceedings this week for the first time. I mean, it began last week, but for the first time, the oral arguments before the Supreme Court are both being live streamed and being done remotely so the public can hear justices grill lawyers and really get a sense of how they form the opinions they'll issue in the summer. You've been following the court for decades, and I wondered what you thought as you listened to this drama unfold on Tuesday without all the trappings of the courtroom.
- [04:39]
Jeffrey Toobin
Well, it's certainly a weird situation. And it's also important to remember that the audio of Supreme Court arguments has been available for some time. They always release it at the end of the week, not live streamed the way they've done with these telephone arguments. What's really different is that instead of the free for all that Supreme Court arguments are where the lawyer starts talking and each of the justices just sort of jumps in when they feel like it. 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.
- [05:31]
Dorothy Wickenden
That's remarkable.
- [05:32]
Jeffrey Toobin
Yeah. And actually, as far as I've seen, ask very good questions, highly relevant, important questions. But you don't have the interaction among the justices that you do in the free for all style argument. So I certainly prefer the other format. But the fact that it's available live, unlike the usual practice of the court, is much better. You know, I can understand the justices concerns about cameras in the courtroom. I mean, that would be a major, major change. But live streaming, the audio of the arguments would not interfere with them at all. And it really is just outrageous that they haven't done it before. The virus forced them to.
- [06:19]
Dorothy Wickenden
So tell us about these cases. Who brought them and why?
- [06:24]
Jeffrey Toobin
Well, there are two similar cases, but they differ in important respects. The first case is about congressional investigations. You know, three congressional committees have sought records, including bank records and financial records of the Trump Organization going back a number of years. And that's what the first case is about. The second case was brought by Cyrus Vance, the New York City District Attorney, which is a straight up grand jury subpoena, most importantly for Trump's tax returns.
- [07:04]
Dorothy Wickenden
So what's the difference between the two?
- [07:07]
Jeffrey Toobin
Well, there is a different body of law governing what Congress has a right to law enforcement. Grand jury subpoenas are actually given sort of heightened value by the court. And I think you saw that in the arguments here this week that the. I thought the justices, or perhaps a majority of the justices, seemed sympathetic to both investigators, but they were more sympathetic to the lawyer for Cyrus Vance, because there is a great tradition that everybody has to answer a grand jury subpoena that we have very, very narrow exceptions to, when people can decline to produce evidence and respond to these subpoenas. And I think Jay Sekula, who was representing the president, had a hard time asking for a completely blanket rule that the president couldn't be investigated while he was president.
- [08:13]
Dorothy Wickenden
Yeah, let's get to that in a second. I want to talk a little bit about the House subpoenas. And as you say, the House does have oversight over the president. That is just a constitutional right. At the same time, there is huge political issues at stake here.
- [08:28]
Jeffrey Toobin
Right. And just to go to first principles, Congress has the right to investigate when it is for a legislative purpose. That's the broad rubric. And one of the arguments Trump's lawyers made was this is just a fishing expedition. It's just to embarrass the president. It has nothing to do with any legislative purpose. No law will be passed. And what the lawyers for Congress and several justices pointed out is, you know, what about Whitewater? You know, remember when Bill Clinton was president, Congress spent a great deal of time investigating the Whitewater land deal, which was entirely a private matter, entirely related to pre presidential conduct, and not clearly at all relevant to any legislative purpose. But this is what Congress does. Now, the courts never really passed on the propriety of that investigation because Bill Clinton agreed to provide the information, as presidents generally have agreed to provide this information. Donald Trump, this happened during the impeachment investigation. It was one of the articles of impeachment is that he has completely refused to cooperate in. And it will be interesting and important to see what the court says about.
- [09:53]
Dorothy Wickenden
That posture and these tax returns. House Democrats think that they could begin to answer a question that the Mueller investigation did not, which was whether Trump borrowed money from any Russian entities or did business with them before he was president.
- [10:11]
Jeffrey Toobin
It's a critical question that has been in the air. You know, as many people know, every president, major presidential candidate since the 1970s has released their tax returns, and Trump didn't. And he came up with a variety of excuses, mostly that his returns have been audited and he couldn't turn over tax returns when they're being audited, which, a is simply untrue. And baby, no audit has gone on, could go on for as many years as he's claimed to have had an audit going on. And he's basically said, so sue me. And that's what this case is about. This case is, in part, a very important issue about, you know, presidential power and who's. Who's subject to the rule of law. It's also about what the hell are in these tax returns after all these years. I mean, and that is a question that may be answered.
- [11:09]
Dorothy Wickenden
So Sekulow says that a prosecutor in New York doesn't have the power to seek a subpoena for the tax records. So what is Cyrus Vance investigating?
- [11:19]
Jeffrey Toobin
He has not said exactly what he's investigating. He's not required to do that publicly. There are a variety of matters that the Trump Organization has been in that are legally questionable. You know, whether corporate money was used to, you know, pay off women to keep them quiet during the campaign. You know, the Stormy Daniels, Karen McDougal type issues, how he mixed his business and personal expenses and whether he violated the tax laws. There's a lot to investigate, and it is perfectly routine and customary for prosecutors to obtain tax returns as part of their investigation. We'll see if Vance is allowed to get them here.
- [12:10]
Dorothy Wickenden
America is changing, and so is the world.
- [12:14]
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- [12:22]
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I'm Asma Khalid in Washington, D.C. i'm.
- [12:25]
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- [12:28]
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- [12:34]
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Listen on BBC.com or wherever you get your podcasts.
- [12:41]
Dorothy Wickenden
Tell us a little more about Sekulow, who's a fascinating figure to me. He was Trump's key lawyer during Mueller's investigation into Russian interference in the 2016 presidential election. How does he go about defending his client?
- [12:56]
Jeffrey Toobin
Jay Sekulow is a fascinating guy who I've covered now for pushing 20 years. He's a nice Jewish boy from Long island who became an evangelical Christian through the Jews for Jesus movement, wound up representing Jews for Jesus early in his legal career, and actually had several very important victories in the Supreme Court portraying religious freedom as a freedom of speech issue. And I wrote about him a lot in my book the Nine. And he's really a very significant, significant figure in American constitutional law. He's also someone who has become a political figure in his own right. He has radio shows. He has this whole multimedia empire which employs many, many members of his family as well. And he's very closely affiliated with the Reverend Pat Robertson. And he came to represent Donald Trump and during the Mueller investigation, and now is one of Trump's go to lawyers here. You know, 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. That he has what Sekulow called temporary immunity for the entire duration of his presidency, something that the courts have never said. Now, there is the Justice Department policy that under its guidance, it's not binding law. The Department of Justice will never indict the president while he is president. But that is a very different thing from saying no investigative body can even investigate the president while he's president. And that's the argument that Sekula was making. And he did get pushback, not just from the four liberals, but also from Chief Justice Roberts on that argument.
- [14:51]
Dorothy Wickenden
And it flies in the face of the two other big cases involving executive privilege, you know, U.S. v. Nixon in 1974 and Clinton v. Jones in 1997. In both cases, the court ruled unanimously against the president.
- [15:06]
Jeffrey Toobin
And Clinton v. Jones is really highly relevant, I think, to the resolution of this case because Clinton's lawyers made really very similar arguments that there is only one president. He is the executive branch. To force him to submit to a deposition, to prepare for a deposition, to sit for one, is simply too much of an interference while he is president. And the court said, too bad. No one is above the law. You have to give the deposition. In the Paula Jones case, which wound up leading to his impeachment, the burden on Trump is actually considerably less than the burden on Clinton because Clinton had to sit there and answer questions and prepare. These tax returns exist. Trump doesn't have to do anything. His accountants simply have to turn them over. So the interference on his time and on his mental state is much lesser than the one that the court approved in Clinton v. Jones. So I really think this blanket claim of total immunity from even an investigation is one the court is not going to embrace.
- [16:25]
Dorothy Wickenden
We need to talk for a moment, too, about the fact that Trump's most significant accomplishment in office is having named two conservative justices, Neil Gorsuch and Brett Kavanaugh, to the Supreme Court. Presumably, the current situation is precisely what makes a president want friendly faces on the what role have Gorsuch and Kavanaugh had in the proceedings so far?
- [16:50]
Jeffrey Toobin
Well, they were active questioners in the argument. They didn't tip their hands in dramatic ways that I could tell of how they're going to vote. And I have learned from painful experience. It's often hard to predict how justices will vote simply by their questions. But Brett Kavanaugh in particular made his name as an appellate court judge as an advocate of expansive presidential power. This is a major reason why he was appointed. Now, does that guarantee his vote in this case? It doesn't, but don't kid yourself. 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 and their votes are dispositive.
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Dorothy Wickenden
Jeff, I don't know if you'll remember, but the president was impeached a few months ago.
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Jeffrey Toobin
It's like on the Internet. I saw it there.
- [17:58]
Dorothy Wickenden
Yeah, yeah, yeah. For a brief moment, it got some attention. But so many of Trump's legal troubles, and there are many of them, from the Mueller investigation on, have been swept out of the public imagination by the COVID pandemic. Does the fact that these cases are being argued in the midst of a pandemic work in the president's favor?
- [18:20]
Jeffrey Toobin
You know, I mean, that's a great Question. I don't think the justices, even the ones whose votes are in doubt, are sitting there thinking, I can't vote against the president because of the pandemic. Like so many things, it will appear obvious in retrospect, but at least from the tenor of the arguments, even from the way the lawyers presented the arguments, the coronavirus didn't really figure into it, though, of course, it's on all our minds virtually all the time. So you can't say it has no influence, but I can't pinpoint how it did.
- [18:58]
Dorothy Wickenden
And how likely do you think it is that this Supreme Court will rule against Trump in either of the cases, and also if it does, what effect it would have on him and the country.
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Jeffrey Toobin
See, here's where things get tricky, and here's where I think Trump may wind up benefiting. I think it is quite possible that the justices will write an opinion with ringing phrases that no one is above the law. We don't agree with the president that he has this temporary immunity from any investigation. However, we are going to send this case back to the lower courts and to resolve it under a standard which we now outline. 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. So none of these documents will be released during the campaign. What would really be a statement that no one is above the law if they simply affirm the lower court decisions and say, turn over the damn records now. So that's a very big distinction and something people should keep an eye on when the case is resolved, probably in June.
- [20:20]
Dorothy Wickenden
And presumably that would have a major effect on the last couple of months leading up to the election.
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Jeffrey Toobin
Well, that's if you believe than anything has an effect on. I mean, you know, we're always talking about big new developments, whether it's, you know, his statements at Charlottesville or Helsinki with Putin and the kids in cages. And the great story of the Trump years is that the polls never change.
- [20:49]
Dorothy Wickenden
Yeah.
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Jeffrey Toobin
And the question I have is if this stuff comes out, will it affect the polls very much? I've been wrong before, thinking that the polls will change, and I may have learned a lesson.
- [21:06]
Dorothy Wickenden
Thanks so much, Jeff.
- [21:07]
Jeffrey Toobin
Sure, Dorothy.
- [21:13]
Dorothy Wickenden
Jeffrey Toobin, a staff writer at the New Yorker, is the author of eight books, including the forthcoming True Crimes and Misdemeanors, the Investigation of Donald Trump, which will be published in August. This has been the political scene. You can subscribe to this and other New Yorker podcasts by searching for the New Yorker in your podcast app and find more political analysis and commentary on new yorker.com Feel free to rate and review us on Apple Podcasts. Our theme music is by Russell Gillespie. This program was produced by Alex Barrett and Kylie Warner. For New Yorker.com I'm Dorothy Wickenden.
- [21:56]
David Remnick
Right now, we are living through some of the most tumultuous political times our country has ever known. I'm David Remnick, and each week on the New Yorker Radio Hour, I'll try to make sense of what's happening alongside politicians and thinkers like Cory Booker, Nancy Pelosi, Liz Liz Cheney, Tim Waltz, Ketanji Brown Jackson, Newt Gingrich, Robert F. Kennedy, Jr. Charlamagne, tha God, and so many more. That's all in the New Yorker Radio Hour. Wherever you listen to podcasts.
- [22:27]
Jeffrey Toobin
From PRX.