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Is the president entitled to immunity? What are the limits of presidential and congressional power? Those are questions the Supreme Court will take up today when it hears opening arguments for three cases seeking Donald Trump's records from before he was president. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: Remember when President Trump said this in 2016?
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PRESIDENT DONALD TRUMP: I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters, OK? It's, like, incredible.
TOTENBERG: Well, the position he's taking in all three cases before the court today is a legal version of that. It's an assertion, essentially, of presidential immunity. Here, for example, is President Trump's lawyer William Consovoy responding to a question from Judge Denny Chin during the appeals court argument over the grand jury subpoena last October.
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DENNY CHIN: What's your view on on the Fifth Avenue example? Local authorities couldn't investigate. They couldn't do anything about it. That's your position?
WILLIAM CONSOVOY: That is correct. That is correct.
TOTENBERG: In today's cases, all the subpoenas are seeking similar but not identical records largely from the time Trump was not president, and they were issued not to Trump but to the banks he and his family do business with, including multibillion dollar loans from Deutsche Bank and to the accounting firm Mazars USA that handled Trump's personal and business. Mazars and the banks have not objected to complying with the subpoenas.
The House Financial Services Committee, the Intelligence Committee and the Government Oversight Committee say the subpoenas are in the exercise of their oversight and legislative responsibilities. They say they're seeking the Trump records to inform the need for new international money laundering restrictions and for other purposes - for instance, should the ethics laws be tightened to prevent a president with huge business interests from using his office unethically? The subpoena issued by the New York grand jury involves a broad investigation that includes a probe of alleged hush money payments to porn star Stormy Daniels and another woman during the 2016 presidential campaign.
Now, in ordinary circumstances, neither you nor I nor any ordinary citizen would be able to block such subpoenas for our business records or tax returns. But as Trump lawyer Jay Sekulow puts it...
JAY SEKULOW: This is not ordinary. This is against the president of the United States. And as the Supreme Court has recognized, the president of the United States is not treated like any ordinary citizen.
STUART GERSON: I don't believe that the president is a king.
TOTENBERG: Stuart Gerson is among a group of former high-ranking Justice Department officials who filed a brief opposing President Trump's position. Gerson served as assistant attorney general and acting attorney general during the George H.W. Bush administration.
GERSON: There's a demonstrable public need for these documents that outweighs any argument about presidential privilege that might be raised.
TOTENBERG: Trump lawyer Sekulow, however, maintains the president is entitled to immunity from subpoenas, even those not served directly on him, as long as he's president. Turning to the New York grand jury subpoena, Sekulow notes that there are more than 2,300 state and local DAs in the country, and if the subpoena in this case is upheld, he says, every Tom, Dick and Harriet DA would be harassing presidents they don't like. Columbia law professor Dan Richman summarizes the New York DA's argument this way.
DANIEL RICHMAN: Unless we're going to declare that once a person is president, they're above the law for anything that happened before they were president, we need to pursue a case involving others and, in time, once he steps down, possibly against him.
TOTENBERG: As for the congressional subpoenas, Trump's lawyers argue that they can't be enforced against the president because, as Sekulow puts it, what Congress is really doing is investigating the president and...
SEKULOW: They're not entitled to be a law enforcement agency.
TOTENBERG: Former Justice Department official Gerson points out that the Supreme Court, by a unanimous vote in 1974, ordered President Nixon to comply with a federal grand jury subpoena for tape recordings relevant to the Watergate investigation. Ultimately, those tapes would lead to Nixon's resignation. And in 1997, the high court, also by a unanimous vote, ordered President Clinton to testify in a sexual harassment case against him, a civil case stemming from his time as governor. In that case, however, the court punted on the question of whether a state could force similar compliance in a state lawsuit, and you can expect Trump's lawyers to stress that unresolved point today.
But Gerson replies that while it has long been understood that a president can't be indicted while in office, that does not mean he can't be investigated by Congress or by state grand juries.
GERSON: The president is making a blanket argument that really doesn't hold historical, constitutional or other water.
TOTENBERG: Sekulow replies that no matter how small or large a president's offenses, the only remedy Congress has is impeachment. And in this case, the Republican-controlled Senate failed to convict Trump on impeachment charges. University of Texas law professor Stephen Vladeck argues that Congress' oversight powers have never been limited to impeachment.
STEPHEN VLADECK: Congress' oversight function, as the Supreme Court has long recognized, extends to matters of public concern and areas where Congress might want to regulate.
TOTENBERG: Trump lawyer Sekulow, however, counters that Congress is just on a fishing expedition to discredit the president.
SEKULOW: I think that there's been a pattern and practice of harassment and destruction, and this is a continuation of that.
TOTENBERG: But Congress and the New York DA see Trump's legal positions as a shell game. As Vladeck puts it, if you're seeking information as part of congressional oversight or a pre-impeachment investigation or in state or federal court...
VLADECK: The answer is no. The president's position in this litigation all along has had a remarkably straightforward heads-I-win, tails-you-lose quality to it.
TOTENBERG: Just how the newly energized Supreme Court majority will weigh all these factors is uncertain. Every one of the conservative justices as well as Obama appointee Elena Kagan have served in the executive branch and all have, at various times, argued strenuously for executive power.
Finally, the court has recently asked the lawyers in this case to brief an additional question - whether the fight between Congress and the president here is a political question that the court should stay out of. Were the court to take that off-ramp, it would make it very difficult for any future Congress to force the president to produce information. But it would also mean that, in this particular case, the banks and the Mazars accounting firm might well have to comply with the subpoenas that went to them and not the president.
Nina Totenberg, NPR News, Washington.
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