THE SEPARATION of powers, the founders bulwark against tyranny, is not what it might seem. As James Madison explained in the Federalist Papers No. 47, the idea is not to keep the legislative, executive and judicial departments absolutely separate and distinct. Rather, Madison wrote, each must exercise a measure of control or agency over its fellow branches. Negotiating the overlapping portions of the Venn diagram has often fallen to the judiciary, as it did on May 12th, when the Supreme Court took up two challenges to President Donald Trumps quest to keep his taxes and other financial records secret.
Mr Trump is the first president since Richard Nixon to refuse to share at least some tax information with the American people. But in April 2019, with the Democrats back in control of the House of Representatives, three congressional committees subpoenaed years of papers from Mr Trumps banks and his accounting firm. A few months later Cyrus Vance, Manhattans district attorney, sought similar records for a grand-jury investigation into Mr Trumps alleged hush-money payoffs to an adult film star and a Playboy model before the election in 2016. Lower courts rejected Mr Trumps pleas to block the subpoenas, leaving the nine justices with the final say.
The first pair of cases, argued by telephone (the court is not meeting in person during the pandemic), concerned House subpoenas to Capital One and Deutsche Bank, two of Mr Trumps lenders, and Mazars USA, his accountant. The Oversight Committee had demanded documents to help it consider revising government ethics laws. The Intelligence and Financial Services Committees said they wanted to investigate money-laundering and foreign interference in the 2016 election.
Patrick Strawbridge, Mr Trumps lawyer, described the House efforts as a dragnet. He seemed to raise the eyebrows of Chief Justice John Roberts, though, when he cast doubt on all congressional oversight of presidents. Quite frankly, Mr Strawbridge said, the House has limited powers to regulate the presidency itself. Jeff Wall, supporting Mr Trump from the Department of Justice, added that the subpoenas were designed to undermine the president and the House had not even come close to explaining why it needs the documents.
The Houses lawyer, Douglas Letter, seemed to have precedent on his side. In 1927 the court observed that the power to secure needed informationhas long been treated as an attribute of the power to legislate. And in 1974 it unanimously ordered Nixon to comply with a subpoena for his White House tapes. But when pressed to identify a limit on Congresss subpoena power, Mr Letter faltered. Justice Samuel Alito, one of the courts most skilful questioners, backed him into a Socratic corner. There is really no protection, he asked, preventing the harassment of a president, because subpoenas require only a conceivable legislative purpose, and you cant think of a single example of a subpoena that wouldnt meet that test?
Justice Elena Kagan sought to elicit more persuasive responses from Mr Letter and vividly depicted Mr Trumps request as placing a ten-ton weight on the scales between the president and Congress. Yet even Justice Stephen Breyer, a member of the liberal wing, worried that the House subpoenas might be unduly burdensome. He was bothered, he said, by the prospect of a red-baiting future Senator McCarthy haranguing a future Franklin Roosevelt.
When rulings arrive this summer, Mr Trump may win a majority in Trump v Mazarskeeping his finances out of the newspapers, for now. But he seems likely to lose Trump v Vance, the clash over the New York subpoena (if so, only the grand jury would be privy to Mr Trumps records while he remains in office). In Vance, Jay Sekulow, Mr Trumps lawyer, offered a royalist vision of the presidency shielded by absolute immunity from criminal investigation. But he struggled to explain how, in 1997, the court could unanimously order Bill Clinton to appear for depositions in a sexual-harassment suit, whereas a grand jury probing Mr Trumps alleged payoffs to paramours was constitutionally barred from peeking at the presidents papers.
Noel Francisco, the solicitor-general, defended Mr Trump on somewhat less outlandish grounds. Carey Dunne, ably representing Mr Vance, argued that the investigation was well within the scope of legal process permitted by this court since 1807. If the justices side with Mr Trump, Mr Dunne warned, presidents may wind up unchecked and above the law.
This article appeared in the United States section of the print edition under the headline "On the money"
Read more:
The Supreme Court will not agree on the president's taxes - The Economist
- Donald Trump Returns to Capitol Hill for First Time Since Jan. 6 Riot - The Wall Street Journal - June 13th, 2024 [June 13th, 2024]
- Opinion: Donald Trump's advice on drinking and drugs is 'Don't start.' So what's wrong with that? - Yahoo! Voices - June 13th, 2024 [June 13th, 2024]
- Jeffrey Katzenberg Is Bidens Secret Weapon Against Trump - The New York Times - June 13th, 2024 [June 13th, 2024]
- Behind Closed Doors, Trump Disparages Milwaukee, Host of His Party's Convention - The New York Times - June 13th, 2024 [June 13th, 2024]
- Trump's Campaign Was Just a Scammy Money Grab All Along - The New Republic - June 13th, 2024 [June 13th, 2024]
- Opinion | The American flag isnt another Trump property. Time to reclaim it. - The Washington Post - June 13th, 2024 [June 13th, 2024]
- Republicans host 'pep rally' with Trump in his first visit to Capitol Hill since Jan. 6 attack - NBC News - June 13th, 2024 [June 13th, 2024]
- Trump met with GOP lawmakers in Washington to rally support, push for unity - NPR - June 13th, 2024 [June 13th, 2024]
- A second Trump term: from unthinkable to probable - The Economist - June 13th, 2024 [June 13th, 2024]
- Donald Trump on Capitol Hill for first time since Jan 6 riot - BBC.com - June 13th, 2024 [June 13th, 2024]
- Elections 2024 live updates: Trump touts 'tremendous unity' after GOP meetings on Hill - The Washington Post - June 13th, 2024 [June 13th, 2024]
- Who Is Favored To Win The 2024 Presidential Election? - FiveThirtyEight - June 13th, 2024 [June 13th, 2024]
- Trump slams Justice Department in meeting with congressional Republicans - The Washington Post - June 13th, 2024 [June 13th, 2024]
- Bitcoin miners at Donald Trump's closed-door event say he thinks bitcoin can help win AI arms race - CNBC - June 13th, 2024 [June 13th, 2024]
- The problem with Donald Trump's advice on drugs and alcohol - Los Angeles Times - June 13th, 2024 [June 13th, 2024]
- Trump Returns to Washington With Renewed Grip on the G.O.P. - The New York Times - June 13th, 2024 [June 13th, 2024]
- Opinion | J.D. Vance on Where Hed Take the Republican Party - The New York Times - June 13th, 2024 [June 13th, 2024]
- How Donald Trump's criminal conviction boosted his campaign fundraising machine - CNBC - June 13th, 2024 [June 13th, 2024]
- Donald Trump's Message to Milwaukee - The Atlantic - June 13th, 2024 [June 13th, 2024]
- Donald Trump Reportedly Questions Taylor Swifts Support for Joe Biden in Meeting With House Republicans: Why Would She Endorse This Dope? - Variety - June 13th, 2024 [June 13th, 2024]
- How One Move Illustrates Trump's Tactics - The New York Times - June 13th, 2024 [June 13th, 2024]
- Donald Trump Pulls Off Shock Lead in State GOP Has Not Won in 36 Years - Newsweek - June 13th, 2024 [June 13th, 2024]
- Donald Trump's 'Unhinged' Email Has Critics Asking: 'Is He Out Of Control?' - Yahoo! Voices - June 13th, 2024 [June 13th, 2024]
- JB Pritzker, the Democrat Who Isnt Afraid to Call Trump a Felon - The New York Times - June 13th, 2024 [June 13th, 2024]
- Opinion | In calling out Trump, Harris finds her mission - The Washington Post - June 13th, 2024 [June 13th, 2024]
- A Brief History of the Phrase 'No One Is Above the Law' - The New York Times - June 13th, 2024 [June 13th, 2024]
- Donald Trump Jr. moves to be MAGA's new kingmaker - Axios - June 13th, 2024 [June 13th, 2024]
- Opinion | Media should stop calling Donald Trump a 'felon' - The Washington Post - The Washington Post - June 6th, 2024 [June 6th, 2024]
- Donald Trump tries to court pivotal 2024 voters after guilty verdict - USA TODAY - June 6th, 2024 [June 6th, 2024]
- Opinion | Trump has been convicted, but maybe hold the champagne - The Washington Post - June 6th, 2024 [June 6th, 2024]
- Democratic, GOP strategists on problems Biden and Trump face with undecided voters - PBS NewsHour - June 6th, 2024 [June 6th, 2024]
- Trump's New York gun permit to be revoked following conviction: Sources - ABC News - June 6th, 2024 [June 6th, 2024]
- Trump asks to have gag order lifted in New York criminal trial - CBS News - June 6th, 2024 [June 6th, 2024]
- Donald Trump Is Plotting His Next Crime - Democracy Docket - June 6th, 2024 [June 6th, 2024]
- Trump Gets a Fund-Raiser in Silicon Valley - The New York Times - June 6th, 2024 [June 6th, 2024]
- Donald Trump: Unless there is a death penalty for drug dealers, you will never solve the problem - Fox News - June 6th, 2024 [June 6th, 2024]
- DNC to unveil new billboard calling Trump a "convicted felon" - CBS News - June 6th, 2024 [June 6th, 2024]
- Trump's Vows to Prosecute Rivals Put Rule of Law on the Ballot - The New York Times - June 6th, 2024 [June 6th, 2024]
- Will the Supreme Court nullify Trump's conviction? - Vox.com - June 6th, 2024 [June 6th, 2024]
- What's next for Donald Trump after hush money conviction - The Associated Press - June 6th, 2024 [June 6th, 2024]
- Is Donald Trump Really a Male Icon? I Hope to God Not. - The Nation - June 6th, 2024 [June 6th, 2024]
- Opinion | Trump Is Blocking Out the Sun: Three Writers on the Politics of the Guilty Verdict - The New York Times - June 6th, 2024 [June 6th, 2024]
- Looming over Trump's conviction: reversal by the '13th juror' - POLITICO - June 6th, 2024 [June 6th, 2024]
- Both Sides of a Breakup: He Didn't Think Trump Was So Bad - The Cut - June 6th, 2024 [June 6th, 2024]
- Trump asks judge to lift gag order in hush money case after guilty verdict - Axios - June 6th, 2024 [June 6th, 2024]
- Court Delays Trump's Georgia Case, and U.N. Warns of 'Climate Hell' - The New York Times - June 6th, 2024 [June 6th, 2024]
- Republican Election Clerk Takes on Trump and His Supporters - The New York Times - June 6th, 2024 [June 6th, 2024]
- Trump surrogate Byron Donalds hearkens back to Jim Crow era when 'the Black family was together' - NBC News - June 6th, 2024 [June 6th, 2024]
- Donald Trump to speak at private CEOs meeting, weeks after conviction - CNBC - June 6th, 2024 [June 6th, 2024]
- Trump's conviction prompts election-year debate among Democrats: How much to focus on the verdict? - The Associated Press - June 6th, 2024 [June 6th, 2024]
- Georgia appeals court temporarily halts Trump's 2020 election case in Fulton County - CBS News - June 6th, 2024 [June 6th, 2024]
- Suddenly Trump's got nothing to say about Hunter Biden - POLITICO - June 6th, 2024 [June 6th, 2024]
- 'Donald Trump Did This': How to Beat MAGA on Border Security - The Bulwark - April 29th, 2024 [April 29th, 2024]
- Potential Trump running mate JD Vance and Donald Trump Jr. have become so close that they text or talk on a 'nearly ... - Business Insider - April 29th, 2024 [April 29th, 2024]
- Trump Second Term: How the World and U.S. Allies Can Prepare for the Election - Foreign Policy - April 29th, 2024 [April 29th, 2024]
- Poll: Biden and Trump supporters sharply divided by the media they consume - NBC News - April 29th, 2024 [April 29th, 2024]
- Master Calendar of Trump Court Dates: Criminal and Civil Cases - Just Security - April 29th, 2024 [April 29th, 2024]
- Donald Trump's Sleepy, Sleazy Criminal Trial - The New Yorker - April 29th, 2024 [April 29th, 2024]
- Trump, GOP seize on campus protests to depict chaos under Biden - The Washington Post - April 29th, 2024 [April 29th, 2024]
- UK briefing: How Donald Trump plans to survive hush money trial with his campaign intact newsletter - The Guardian - April 29th, 2024 [April 29th, 2024]
- Opinion | We Are Talking About the Manhattan Case Against Trump All Wrong - The New York Times - April 29th, 2024 [April 29th, 2024]
- Election 2024: Biden jokes, Trump still leads and updates from the Sunday shows. - The New York Times - April 29th, 2024 [April 29th, 2024]
- Donald Trump Pans White House Correspondents' Dinner: 'Colin Jost BOMBED' - The Daily Beast - April 29th, 2024 [April 29th, 2024]
- Trump's Trial Could Bring a Rarity: Consequences for His Words - The New York Times - April 29th, 2024 [April 29th, 2024]
- Donald Trump Bemoans Really Bad WHCD, Biden & Colin Jost After All Mock Much Indicted Ex-POTUS - Deadline - April 29th, 2024 [April 29th, 2024]
- The Supreme Court's epic failure in dealing with Trump's cases - The Hill - April 29th, 2024 [April 29th, 2024]
- Donald Trump: In America's most important swing state, a key Biden group wants to hand the presidency to Trump. - Slate - April 29th, 2024 [April 29th, 2024]
- Donald Trump Is Being Ritually Humiliated in Court - The New Yorker - April 29th, 2024 [April 29th, 2024]
- Joe Biden trails Donald Trump in new national poll on 2024 election - USA TODAY - April 29th, 2024 [April 29th, 2024]
- Amid Cases on Abortion and Trump, Roberts Reflects on Supreme Court's Work - The New York Times - April 29th, 2024 [April 29th, 2024]
- Donald Trump Is Used to the Finer Things in Life. At the Courthouse, 'He's Miserable.' - The Wall Street Journal - April 29th, 2024 [April 29th, 2024]
- How Trumps Rhetoric at Rallies Has Escalated - The New York Times - April 29th, 2024 [April 29th, 2024]
- The Supreme Court Appears Poised to Protect the Presidencyand Donald Trump - The New Yorker - April 29th, 2024 [April 29th, 2024]
- The Supreme Court seems divided over Donald Trump's immunity - The Economist - April 29th, 2024 [April 29th, 2024]
- John Dean Says 1 Thing 'Keeping Me On The Edge Of My Seat' In Trump Trial - Yahoo! Voices - April 29th, 2024 [April 29th, 2024]
- Five Moments That Have Defined Donald Trump's Trial So Far - The New York Times - April 29th, 2024 [April 29th, 2024]
- How Trumps trial is playing, politically - The Washington Post - April 29th, 2024 [April 29th, 2024]
- Opinion | The Ukraine aid vote helps, but U.S. allies complacency would be unwise - The Washington Post - April 29th, 2024 [April 29th, 2024]
- Hey, SCOTUS your hypocrisy is showing - The Hill - April 29th, 2024 [April 29th, 2024]
- Bill Barr Is Happy to Debase Himself for Donald Trump Again Mother Jones - Mother Jones - April 29th, 2024 [April 29th, 2024]