Conservative Supreme Court Justice Brett Kavanaugh shocked the House general counsel this week after he tried diverting attention from Donald Trump’s tax returns by tossing in “odd hypotheticals” during oral arguments in the Trump v. Mazars.
Kavanaugh pressed general counsel Douglas Letter, who is representing the Democratic-led House of Representatives, to explain why Congress should be able to obtain Trump’s tax records through an enforced subpoena.
“You could demand that the executive branch show that its reason for seeking something outweighs the executive privilege claim, but here, we are not dealing with executive privilege at all,” Letter argued. “These are financial business records. It is difficult to see how these could come within that kind of balance that would override Congress’s authority to do investigations.”
Letter then argued that Nixon v. Fitzgerald established presidential immunity to certain types of claims, but pointed out that Congress still maintained oversight authority over the executive branch.
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“Where this court said the president has immunity from certain kinds of claims, the court said that one of the reasons that is okay is because we have congressional oversight of the president,” Letter argued. “This court specifically used that to justify absolute immunity for the president in other areas.”
When Letter tried to cite Clinton v. Jones, the conservative justice interrupted, tossing in one of his hypotheticals.
“Can I interrupt, what about medical records?” Kavanaugh said.
Letter tried to explain that Trump’s medical records would be irrelevant to legislative purposes, but Kavanaugh cut him off again before he could expand on his point.
“I am having difficulty thinking of a hypothetical where, if Congress is examining and deciding on amendments to the Affordable Care Act, how the president’s personal medical records would be relevant to that,” Letter conceded. “The most important public health statute of many decades, I do not think would be affected by that at all.”
“I’m sure we can come up with some odd hypotheticals where presidential health would clearly be relevant,” Letter then argued. “It may be changing the statutes that involve the succession of when a president becomes incapacitated — something like that, I suppose. In general, Congress, there’d be no valid reason for Congress to ask for the president’s personal medical records that I can think of.”
You can hear the exchange below:
