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Liberals pull no punches against Trump's lawyers, but it may not be enough

President Donald Trump's efforts to shield his financial records from disclosure to the House of Representatives have so far met with blistering losses in the lower courts.

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Analysis by Ariane de Vogue
, CNN Supreme Court Reporter
CNN — President Donald Trump's efforts to shield his financial records from disclosure to the House of Representatives have so far met with blistering losses in the lower courts.

One court held, for example, it had "no doubt" that Congress' inquiries were meant to "embarrass" the President. But as long as there was a valid legislative purpose, the appeals court said, the subpoenas could go forward.

Reeling from that decision and others, the President's supporters have always believed that the Supreme Court, composed of a 5-4 conservative majority fortified with two of Trump's own nominees, might see things differently.

On Tuesday, in a case concerning subpoenas sent by three House committees to the President, Trump's supporters had reason to hope. And the liberal justices pushed back hard.

While it is impossible to tell the outcome of a case based on oral arguments, several of the liberal justices on the bench pulled no punches, echoing rulings made by lower courts that have gone against Trump. They pointed out at every turn that the Supreme Court has -- for decades -- endorsed Congress' broad authority to investigate when pursuing a legitimate legislative purpose.

But while the lower courts rejected Trump's claims that the subpoenas at issue amounted to an illegal fishing expedition, lawyers for Trump and the Justice Department, as well as the conservatives on the bench Tuesday, repeatedly called up one word: Harassment.

"The potential to harass and undermine the President and the presidency is plain," an administration lawyer said.

"That's the issue here, whether something should be done to prevent the use of these subpoenas for the harassment of a president," Justice Samuel Alito said.

Leading the charge for the liberals -- as she often does -- was Justice Ruth Bader Ginsburg. Before anything else, she pointed out that Trump is the only recent president to decline to turn over his tax records.

"So it gets to be a pitched battle here because President Trump is the first one to refuse to do that," she said. And then she launched into something that was central to the courts that ruled against the President: precedent.

Ginsburg, who was in the hospital last week dealing with a gall bladder infection, was fierce on Tuesday.

"Take the Nixon tapes," she said, noting in that case the court enforced a subpoena directed to the then-President.

She then proceeded to tick off other precedents that went against sitting presidents including cases having to do with Watergate, Whitewater, and Paula Jones. She rejected any attempt to distinguish them from the current controversy. And she pointed out that the only way for Congress to frame legislation is to investigate. Speaking for the political branch, she said, "You want to explore what is the problem, what legislative change can reduce or eliminate the problem."

Principal Deputy Solicitor General Jeffrey Wall, arguing for the Trump administration, agreed that Congress could investigate.

"We're not saying the House has no power to get at the records of a sitting president," he said. But he told her that when the inquiry involves the president there needs to be a higher standard because otherwise, the requests will become routine and a "weapon in the standing arsenal of the houses of Congress."

Later on, Justice Stephen Breyer picked up on Ginsburg's query, pointing out that in the Watergate case the court "gave contested material -- involving the very workings of the presidential office -- to a prosecutor."

To Breyer, if the court were to allow a subpoena for official documents why wouldn't it allow a subpoena for personal documents unrelated to official activities?

Justice Sonia Sotomayor also turned back to Ginsburg's questions about precedent.

"I see a tremendous separation of powers problem," she said, if the court were to trim back Congress' authority in the case.

Justice Elena Kagan, too, grilled a lawyer for the President.

"This isn't the first conflict between Congress and the President," she reminded him. She noted that in the past Congress and the President have worked to reach accommodations. "Sometimes one has gotten more, and sometimes the other has gotten more," she said.

But in the case at hand, she suggested, Trump's arguments that the court should block all the subpoenas swept too broadly and would violate the separation of powers.

"You're asking us 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," she said.

The stakes in the case are high. If the Supreme Court were to side with Trump, it could substantially narrow the ability for the House to conduct investigations. It might limit Congress' power or set up a special legal standard just for the resident.

To be sure, Kagan and others did express concern about the scope of the subpoenas at times. She noted that while the subpoenas issued by the Oversight Committee address the President directly, another from the Financial Services Committee took a "much broader scope." Indeed, subpoenas to Capital One and Deutsche Bank target business entities and Trump's three oldest children going back for at least 10 years. Kagan might have been trying to attract a conservative justice to a middle ground position.

For his part, Breyer acknowledged "what I hold today" will also apply to a "future Senator McCarthy," referring to former Sen. Joseph McCarthy, who used his power to investigate people who he accused of being communists in the 1950s.

Later, Ginsburg returned to the notion of harassment.

"The concern has been expressed that Congress could be using the subpoena power to harass a political rival," she said. "What is the limiting principle" that would serve toward enacting a law not harassing a president, she asked.

Douglas Letter, the House general counsel, said that a subpoena cannot be invalid just because it might be inspired by politics. Pointing to precedent he said, "This court absolutely and flatly and unanimously rejected that as a reason that it couldn't be done."

That seemed to satisfy Ginsburg.

"Thank you," she said.

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