SCOTUS Punts On House Subpoena For Trump Financial Docs

FEBRUARY 5, 2019 - WASHINGTON, DC: President Donald Trump delivered the State of the Union address, with Vice President Mike Pence and Speaker of the House Nancy Pelosi, at the Capitol in Washington, DC on February 5, 2019. (Doug Mills/The New York Times POOL PHOTO) NYTSOTU
WASHINGTON, DC - FEBRUARY 5: U.S. President Donald Trump, with Speaker Nancy Pelosi and Vice President Mike Pence looking on, delivers the State of the Union address in the chamber of the U.S. House of Representative... WASHINGTON, DC - FEBRUARY 5: U.S. President Donald Trump, with Speaker Nancy Pelosi and Vice President Mike Pence looking on, delivers the State of the Union address in the chamber of the U.S. House of Representatives at the U.S. Capitol Building on February 5, 2019 in Washington, DC. President Trump's second State of the Union address was postponed one week due to the partial government shutdown. (Photo by Doug Mills-Pool/Getty Images) MORE LESS
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The Supreme Court ruled Thursday that Congress does have the authority to subpoena President Trump’s personal financial records, but the court issued an opinion that will likely delay Congress’ ability to access those records until after the election.

The 7-2 decision rejected the broad arguments Trump made about Congress lacking the power to obtain the documents. However the justices, in an opinion written by Chief Justice John Roberts, sent the case back to the lower courts so that they could consider the “special concerns regarding the separation of powers.” The opinion laid out a four-part test for what factors the courts should weigh as they decide whether to enforce congressional subpoenas involving the President.

While Trump was largely successful in running down the clock on congressional oversight before the election, Thursday’s decision has major implications for Congress’ ability to conduct investigations in a potential second Trump term and in future administrations.

“Legislative inquiries might involve the President in appropriate cases; as noted, Congress’s responsibilities extend to ‘every affair of government,’” Roberts wrote.

He said that the arguments put forward by Trump — as well as by his Justice Department — “would represent a significant departure from the longstanding way of doing business between the branches, giving short shrift to Congress’s important interests in conducting inquiries to obtain the information it needs to legislate effectively.”

However, Roberts also said that the House, and the lower courts that had backed Congress in the case, had failed “to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information.”

Citing the “opposite and rival” relationship that the President and Congress have with one another, the court majority said that congressional subpoenas are different than those issued in a criminal proceeding involving the President.

“Without limits on its subpoena powers, Congress could ‘exert an imperious controul’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared,” Roberts wrote.

He was joined by the court’s four liberal justices, and by Justices Neil Gorsuch and Brett Kavanaugh, both Trump appointees. Justices Clarence Thomas and Samual Alito each wrote dissenting opinions.

The decision will come as a relief not just to Trump’s foes, but to advocates of government transparency who feared the conservative majority would severely curtail Congress’ subpoena powers.  It will also have implications for the other cases where Trump is challenging the authority of Congress to issue subpoenas tied to his administration, in which the Trump administration is making arguments similar to the claims that the Supreme Court rejected Thursday.

Nonetheless, Trump’s strategy of fighting the subpoenas tooth and nail had paid off in the short term. Thursday’s decision will not bring a clean end to the subpoena battles that have unfolded between Trump and Congress since Democrats took the House in 2018. The case the Supreme Court decided Thursday, Mazars v. House of Representatives, was the first to reach the high court out of several disputes in the judicial pipeline between the President and House lawmakers.

In the Mazars case — which was a consolidation of two lawsuits brought by Trump in his personal capacity — Trump had sued his accounting firm Mazars USA LLP, and his banks, Deutsche Bank and Citi. The lawsuits sought to stop the firm and the banks from complying with House subpoenas for his own financial records and those of his businesses and his family.

Lower federal courts in both New York and D.C. backed the subpoenas, and many viewed Trump’s arguments, which his Justice Department ultimately supported, as being outside the mainstream. Trump’s personal attorneys had argued that Congress lacked a legitimate legislative purpose in obtaining the records and that its interest in probing Trump’s conduct fell outside of its authority. The House, during the litigation, countered that argument by pointing to measures it had considered and by arguing that, because they were issued to third parties, the subpoenas did not put any unconstitutional burden on the President.

The decision was announced on the same day that the Supreme Court rejected Trump’ arguments against enforcing a subpoena issued by a state court grand jury in New York.

Roberts noted in his opinion that the Supreme Court dealt with cases similar to that one, and with cases involving subpoenas tied to the President in civil litigation.

“This dispute therefore represents a significant departure from historical practice,” Roberts wrote of the Mazars case, as he pointed out the typical practice of Congress and the executive branch resolving subpoena disputes with negotiation.

“The interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity,” Roberts wrote. “The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs.”

In deciding such disputes, courts should “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers,” Roberts wrote, laying out the first part of the court’s four-part test.

Secondly, courts should also “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.”

Thirdly, courts should pay close attention to the “nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose,” Roberts wrote, adding, the “ more detailed and substantial the evidence of Congress’s legislative purpose, the better.”

Courts, fourthly, must “carefully” scrutinize “the burdens imposed on the President by a subpoena,” Roberts said. He added that  “Other considerations may be pertinent as well.”

In his dissent, Thomas scoffed at this “new four-part, nonexhaustive test” and said that“it is readily apparent that the Committees have no constitutional authority to subpoena private, nonofficial documents.”

“If the Committees wish to investigate alleged wrongdoing by the President and obtain documents from him, the Constitution provides Congress with a special mechanism for doing so: impeachment,” Thomas wrote.

Alito, meanwhile, wrote in his dissent that the test the majority laid out was “inadequate.”

Read the 7-2 opinion below.

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