In yesterday’s decision in Trump v. Mazars, USA, the Supreme Court reaffirmed that Congress has the power to conduct investigations in support of its power to consider and enact legislation. However, it relied on historical practice between the two branches and separation of powers concerns to explain why Congressional subpoenas directed at the President or his personal records must be narrowly tailored, with a clearly articulated purpose and scope. Although this landmark decision sets important precedent for future subpoenas to the White House, the Court’s decision to remand to the lower courts for further proceedings means that none of the documents covered by the subpoenas will be provided to Congress any time soon.
The Court’s opinion, written by Chief Justice John Roberts and joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch and Kavanaugh, rejected President Trump’s argument that where the President is concerned Congress must show a “demonstrated, specific need” for information such as the financial information being sought. It also rejected the dissenting views of Justices Thomas and Alito that Congressional subpoenas must be explicitly tied to impeachment proceedings, rather than to Congress’ broad legislative authority.
Although this alert focuses on the Mazars Congressional subpoena decision, the impact of this case is best understood in conjunction with the Trump v. Vance opinion issued at the same time, which affirmed the Manhattan District Attorney’s authority to subpoena similar records in support of its criminal investigation into the President’s associates and business activities. In this pair of cases, the Court made clear that, while a President does not enjoy the absolute immunity that President Trump and the Solicitor General argued for, Presidents are not kings and are “subject to the law.” (Vance, at p. 6) At the same time, the Court expressed concern over the ways in which Congressional subpoenas could be used as a political tool in a power struggle between government branches; as a result, and as addressed in more detail below, Congress would have to meet, and courts must consider, at least four criteria in order for a Congressional subpoena to be enforceable by the courts.
Background
In the Mazars case, three separate Congressional committees issued overlapping subpoenas to financial institutions in possession of financial records of President Trump and members of his family and businesses owned or controlled by them. The subpoenas sought information related to tax returns, foreign transactions, financial statements, debt schedules and “suspicious activity” identified by bankers as well as other records. Each of the Committees sought the information for reasons related to their particular jurisdiction: the House Intelligence Committee sought the information to understand foreign influence on elections and the risk of foreign influence or corruption in government decision-making; the House Financial Services Committee pointed to concerns over loopholes in tax laws and the risk of money laundering through shell companies and luxury real estate; the House Oversight and Government Reform Committee was focused on potential conflicts of interests, violations of the Emoluments Clause, and adherence to government ethics obligations.
Congressional Subpoena Power
In its decision, the Court described, and reaffirmed, the century-old precedent that, while Congress has no enumerated constitutional power to conduct investigations or to issue subpoenas in furtherance of those investigations, its power to do so is implicit in the Constitutionally-mandated power to legislate. The Court pointed out that it had long held that Congress’ “a power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Without the information that investigations backed by the subpoena power, the Court reaffirmed, “Congress would be shooting in the dark, unable to legislate wisely or effectively.” Accordingly, it stated, the Supreme Court had held that “[t]he Congressional power to obtain information is broad and indispensable,” encompassing “inquiries into the administration of existing laws, studies of proposed laws and surveys of defenestration in our social economic or political system for the purpose of enabling the Congress to remedy them.” The critical standard against which Congressional investigative subpoenas have long been measured in order to determine their validity, therefore, has been whether they are “related to, and in furtherance of, a legitimate task of the Congress,” serving a “valid legislative purpose.” Under that precedent, Congressional subpoenas are invalid if they were tantamount to an attempt to “try” someone for criminal wrongdoing, or to “expose for the sake of exposure”, or to “punish” objects of an investigation. Rarely, however, have Congressional subpoenas been quashed on those bases.
The Court rejected the President’s arguments that Congress should have to meet a heightened standard in order for the subpoenas to be valid. However, the Court did establish a specific test for their validity, remanding the cases for further assessment of whether or not the subpoenas, as issued, properly balanced the legitimate interests of Congress and its broad investigative power, on one hand, with the “unique position” of the President, on the other. In particular, the Court directed that the lower courts assess the subpoenas in light of four specific considerations: (1) whether the asserted legislative purpose underlying the subpoenas warranted the involvement of the presidential papers being sought; (2) whether the scope of the subpoenas is reasonably tailored to match the asserted legislative purpose(s) for them, on one hand, or unnecessarily over broad, on the other; (3) whether the quantum and the quality of the evidence offered by Congress that their legislative purpose is both real and adequate passes muster; and (4) whether the burden on a sitting president in complying with the subpoena is so significant as to override the legitimate legislative purpose(s).
What Does This Mean in Practical Terms?
First, the chances that Congress will get its hands on the material it has subpoenaed before the current session expires are very small indeed. The Committees are free to go back into the United States District Courts handling the cases and ask for an expedited hearing, at which they might, for instance, narrow the scope of the subpoenas, reinforce the evidence of their legislative purpose, urge that the information being sought necessarily comes from the President, and argue that the burden on the President should the subpoenas be complied with would not be so substantial as to carry the day. But as a practical matter, in order for hearings to be scheduled and held, findings issued, appeals perfected, briefed, argued and decided and any appeal to the Supreme Court be addressed before the end of the year, the parties and a number of different courts would have to act with warp speed. This is not realistic under the best of scenarios, and with the COVID-19 crisis slowing down courts, it is highly unlikely.
Second, it is possible, as has happened in the past with controversial Congressional investigations into the executive branch, that political considerations may affect the ardor of the investigators. For example, if President Trump is not reelected and the Manhattan DA’s office is proceeding with its apparent investigation into his financial affairs, a Democrat-controlled House of Representatives may feel it less urgent to get access to the President’s financial records. On the other hand, if the President is reelected, and the Democrats, as seems likely, retain control of the House, one can fairly well go to the bank on the Congressional committees returning to the federal courts early in the new session of Congress, with new and improved subpoenas and an improved showing of legitimate legislative purpose justifying them, ready to go back at the task of trying to dislodge the President’s tax and other financial records.
Regardless of the next steps in this particular litigation, the principles articulated by the Court are sure to be important precedent for future Congressional investigations. The Executive Branch will surely point to these factors in future attempts to limit the scope of Congressional subpoenas. And the Court’s admonishment of both parties – Congress and the President – for having taken an uncompromising position in this litigation may prompt future negotiators to attempt to resolve fact-gathering disputes directly among the parties, rather than by resort to the courts.
