Trump v. Mazars oral arguments

I read the arguments in Mazars (this is the congressional case, not the district attorney case. the legal issues will be different).

First, for me in general this is an interesting case, because it’s one of those situations where the specifics (I think Trump is corrupt and has succeeded in hiding it from everyone and it’s important for the good of the country that his corruption be exposed) conflict with the general (i think it’s important that proper procedure be followed, that congress not have the power to publically expose someone’s secrets because they don’t like him, and that the presidency be protected from the legal equivalent of a denial of service attack. note that i think *jones* was wrongly decided because it underestimated the DDOS risk).

So some thoughts on the argument:

Trump’s lawyer is arguing a couple of different things: (a) the proper procedure was not followed because Congress authorized the subpoenas after they were issued; (b) the subpoeanas are not connected to any valid legislative purpose because congress has no power to regulate the behavior of the president; © the subpoenas are not connected to any valid legislative purpose because congress did a shitty job of explaining the legislation about whose topic it wanted to conduct an investigation and how the requested documents applied to that; (d) if the court allows this it will open the presidency up to a huge DDOS attack.

(a) is a ridiculous formalism which happens to be based on an incorrect reading of congressional rules. Kavanaugh’s question implies he might buy it, but the answer to Breyer’s question pretty conclusively destroyed the argument.

(b) is breathtaking in its scope. The Supreme Court *will not* sign on to it, and Gorsuch got the US Attorney (distinct from Trump’s lawyer) to back down from the claim.

© came in for heavy ridicule from Gorsuch and Ginsburg, both of whom were incredulous at the notion that we should simply impute some formal requirement that Congress comply with to be able to conduct an investigation, rather than taking them at their word as to what the purpose is — — Ginsburg was incredulous at the distrust of Congress ipmlied, Gorsuch was incredulous that we should have a higher standard for this particular investigator than we do for other investigators.

(d) is the real issue. it’s clear that alito and kavanaugh are *very* concerned about this. but so is breyer (who dissented in jones, remember) and to a lesser degree Sotomayor.

On the other side, the House’s lawyer is making the argument that it can request *anything* as long as it pertains to a legitimate legislative purpose, doesn’t voilate constitutionally protected liberty interests and priviliges, and doesn’t undermine the president’s ability to carry out his job. OK, fine, but in practice that’s basically no limit on the legislative subpoena power at all, and there’s no articulable basis for creating a limit. That bothers Roberts, Thomas, Breyer, Alito, Kavanaugh, Gorsuch, and Sotomayor.

Oof. So both sides have staked out extreme positions with no implied internally consistent limits which the court as a whole cannot and will not sign on to.

There’s a related debate about whether this in practice undermines the president’s ability to do his job. Congress’ lawyer says obviously not, it’s a subpoena to a third party, the president doesn’t need to do anything. kavanaugh and alito are interested in arguing that exposing the president to political ridicule by making this data public would interfere with his doing his job, nobody else really wants to pick that reasoning up.

thomas isn’t sure congress has a legislative investigation subpoena power at all, but it’s not clear if he actually believe that or is asking questions implying that in order to play devil’s advocate.

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overall, if you look to the *law* instead of the *politics*, and look to the underlying policy implications for the distribution of power, this is a hard case. both trump’s lawyers and the house’s lawyers have taken positions which are not tenable and which admit to no practical limitation on the power of their respective branch of government. the court cannot and will not endorse either extreme.

what middle ground it adopts and what the reasoning is, i cannot predict.