The counsel for House Dems did not do a good job at oral arguments yesterday. But it’s worth noting that the arguments made by Trump’s lawyers were appalling nonsense that got less of a rough ride only because the intellectual leader of the Court’s majority faction is fully on board with their anti-Constitutional authoritarianism:
Yet Patrick Strawbridge, who argued for Trump on Tuesday, questioned whether Congress can ever subpoena the president. His radical position took Chief Justice John Roberts aback. “Do you concede any power in the House to subpoena personal papers of the president?” Roberts asked Strawbridge. “I think it is very hard to imagine that the House is ever going to have the power,” Strawbridge responded, “because, quite frankly, the House has limited powers to regulate the presidency itself….”
Justice Stephen Breyer asked the obvious follow-up: What about Watergate? Sen. Sam Ervin’s investigation into Nixon’s misconduct in 1973 rested on his legislative power to subpoena the executive branch. “Are you saying that Sam Ervin’s subpoenas … were unlawful, that a court should not enforce them?”
Strawbridge responded that the Watergate investigation involved impeachment, not legislation. That’s not true—but before Breyer had a chance to retort, Justice Samuel Alito hopped on the line. Can a house of Congress, Alito asked, “justify a subpoena for a sitting president’s personal records on the ground that it wants to use the president as a case study for possible broad regulatory legislation?” Strawbridge said no, claiming that would “open the door to all sorts of oppressive requests.” Alito lobbed another softball: “Does Congress have any power to regulate the conduct of the president, which is an office that is created by the Constitution itself and not by Congress?” Strawbridge responded that Congress does not have “very much” power to regulate the president. (By “regulate,” both men seemed to mean “conduct basic oversight.”)
It’s almost impossible to overstate how ahistorical and unrooted in constitutional text or doctrine the Trump/Alito argument is:
Justice Sonia Sotomayor then told Strawbridge that there is “a long, long history of Congress seeking records” from a sitting president “and getting them.” The practice goes “as far back as 1792.” So why should the court outlaw this practice today? Before Strawbridge got out a coherent answer, Roberts called on Justice Elena Kagan, who captured the case in a single sentence.
“What it seems to me you’re asking us to do,” she said, “is to put a kind of 10-ton weight on the scales between the president and Congress and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the president is concerned.”
Justice Ruth Bader Ginsburg pressed this point. “One must investigate before legislation,” she told Principal Deputy Solicitor General Jeff Wall, who weighed in for Trump. “The purpose of investigation is to frame the legislation. You don’t have the legislation in mind. You want to explore what is the problem, what legislative change can reduce or eliminate the problem.”
But the conservatives seemed to struggle to distinguish “oversight” from outright harassment. Wall warned that if courts don’t second-guess Congress’ justifications, legislators might start “harassing and undermining” the president. “Once the House has this weapon,” Wall said, it “will harm and undermine the presidency of the United States—not just this president, the institution of the presidency going forward.”
“Congress cannot exercise its oversight power if it is engaged in politics” is…an argument. An extremely stupid argument that will lead to purely results-oriented low-partisan second-guessing of Congress by the Supreme Court, but an argument. And needless to say the idea that there would have been a single Republican vote on the Supreme Court had the Obama administration refused to comply with a subpoena during one of the countless Republican snipe hunts of 2011-2016 is literally beyond belief. But it’s Donald Trump’s party, and the Roberts Court always makes money for its partners.