WASHINGTON — The U.S. Supreme Court on Tuesday seemed prepared to rule that Congress went too far in seeking broad access to President Donald Trump's personal financial documents but that a New York prosecutor may be able to get his tax records.
The justices heard three hours of argument by telephone conference call, and lawyers for the president seemed to find more traction for their claim that Congress does not have unlimited authority to issue subpoenas, especially when a president may find it distracting to respond.
The Democratic majorities of three House committees are seeking several years' worth of financial records from Mazars, the Trump organization's accounting firm, and two banks that loaned money to Trump businesses, Capital One and Deutsche Bank.
House Democrats have said they believe the records might provide insights into a question special counsel Robert Mueller never answered: Did Trump borrow money from Russian entities or otherwise do business with them before he became president?
Patrick Strawbridge, representing Trump, said the Congressional committees went too far, because they can only subpoena material when considering specific legislation, not simply to conduct broad investigations.
"The power that they are seeking and the burden they will impose in the aggregate on the president will reshape and transform the balance of the separation of powers," he said.
Several members of the court's conservative majority seemed to agree.
Justice Samuel Alito asked the the lawyers for the House, "In your view, there is really no protection against the use of congressional subpoenas for the purpose of preventing the harassment of a president because the only requirement is that the subpoena be relevant to a conceivable legislative purpose, and you can't think of a single example of a subpoena that wouldn't meet that test?"
That prospect seemed to concern even one of the court's liberals, Stephen Breyer.
"What I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman exactly the same questions. That bothers me," Breyer said.
Other members of the liberal wing were more sympathetic to the congressional demands.
"The aura of this case is really sauce for the goose that serves the gander as well," said Justice Ruth Bader Ginsburg. "So how do you distinguish, say, Whitewater, when President Clinton's personal records were subpoenaed from his accountant, or even Hillary Clinton's law firm billing records were subpoenaed?"
While a majority of the court seemed concerned that the Congressional demands sweep too broadly, seeking years of records from Trump and members of his family, it's possible the court could allow more narrow subpoenas for personal documents before he became president.
But a clear majority seemed prepared to reject the president's position in the second case, in which his lawyers claimed that presidents are absolutely immune from any part of the criminal justice system, including a subpoena from a grand jury.
Manhattan's district attorney, Cyrus Vance, is seeking Trump's tax records for an investigation of hush money payments made to two women who claimed they had affairs with Trump — allegations the president has consistently denied.
Chief Justice John Roberts indicated that position was too limited.
"It is OK for the grand jury to investigate, except it cannot use the traditional and most effective device that they have typically used, which is the subpoena?" he asked.
And Justice Samuel Alito asked, "Suppose that the prosecutor has good reason to believe that the records are not available from any other source and a third party committed a crime?"
The court seemed prepared to send the case back to the lower courts to see whether the Vance subpoena seeks material that is essential to his investigation, would be available nowhere else and would not unduly burden the president from carrying out his official duties.
Rulings in both cases are likely by the end of June or early July. But if the lower courts must take another look at whether the records that Trump has fought so hard not to turn over can be obtained by subpoena, a resolution wouldn't be likely for several more months, and certainly not before the November election.