SCOTUS Puts Judges Smack In The Middle Of The POTUS-Congress Subpoena Fight

Did the Supreme Court Just Usher In A New Forever War Over Congressional Subpoenas Of The President?
President Donald Trump speaks during a bill signing ceremony with his economic team in the Rose Garden at the White House on June 5, 2020. (Photo by Chip Somodevilla/Getty Images)
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July 9, 2020 3:52 p.m.

President Trump’s few wins in his court battles against congressional oversight have come when judges have been unwilling to get dragged into his disputes with the House over its demands. But on Thursday, the Supreme Court handed Trump at least a short-term victory by giving judges a more active role in refereeing fights over congressional subpoenas.

 While effectively allowing a case concerning a subpoena of Trump’s financial records to be punted past November, the Supreme Court has set the stage for fights over Congress’ oversight power to get even muddier.

This will almost certainly encourage Trump and future Presidents to go back to court anytime they object to a demand for information about their personal conduct, legal experts told TPM. And even if in the long term, the judiciary might favor Congress in those fights, the immediate pay off for the executive branch is that it can run down the clock before the next election.

“I think we could see both this President and any future president turn to the court and litigate the legality of any congressional subpoena that goes after their personal information,” said Sarah Turberville, the director of The Constitution Project at Project On Government Oversight, a government transparency organization. 

“It really disincentivizes the Congress and executive branch from coming to some agreement … as to how to work this out,” Turberville told TPM.

The Supreme Court decided two major cases dealing with subpoenas for Trump’s financial records. In both, a broad court majority rejected Trump’s and the Justice Department maximal positions that put the President above oversight and investigation.

But in the case Trump v. Mazars, which dealt with a House subpoena for Trump’s financial docs, the Supreme Court gave presidents a “road map” for issues the executive branch can raise in court when facing a congressional subpoena, said Andy Wright, a lawyer who worked in the Obama White House and before that, for Congress, dealing with oversight issues.

The court — in an opinion written by Chief Justice John Roberts and joined by six other justices, including Trump’s two appointees Brett Kavanaugh and Neil Gorsuch — laid out four criteria the courts must weigh when deciding whether to enforce subpoenas of a President’s personal records.

The four-part test isn’t particularly advantageous to the President on its face. But the slow pace of litigation means that in practice, challenging subpoenas in court will usually be a useful tool for an executive branch seeking to keep information out of lawmakers’ hands until the next election. Meanwhile, Congress, at least for now, won’t be able to rely on the courts to give it quick and clean decisions in favor of its requests for information.

While courts in the past have suggested that there is some limit to what Congress can demand, it mostly gave ample deference to taking Congress’ word for when and why it needed the information it was requesting.

“This [Mazars] opinion says, courts should get right up in there into Congress’ mind and start asking, is this a legitimate topic, did they draft their subpoena appropriately … what are the burdens on the President,” Wright, who is now a research scholar at the New York University School of Law and an author at the legal blog Just Security, told TPM. “I really think the court actually expanded their power with this opinion. They’re going to now be the ones really refereeing this.

Up until the Trump administration adopted a strategy of complete stonewalling, there had been incentives for both sides — Congress and the executive branch — to negotiate subpoena disputes themselves, rather than turn to the courts. Since these kinds of fights lived in a gray area of jurisprudence, there was a chance that either side could suffer a major loss and sacrifice significant leverage in standoffs over subpoenas. This threat was enough to encourage both sides to work out a deal on their own instead of bringing their disputes to the judiciary. 

But Trump, instead, took a hardball approach that included extremely aggressive legal arguments, and in the cases decided by Supreme Court Thursday, he proactively sued third parties that had been subpoenaed for his records to stop them from complying. In those and other cases, Trump’s Justice Department has claimed he and his close advisors are immune to the type of congressional scrutiny House Democrats were trying to do. Trump’s personal attorneys argued that he was also above the sort of state criminal proceeding that was at the heart of Trump v. Vance, the second subpoena case the Supreme Court decided Thursday, concerning a demand by a New York grand jury for Trump’s records.

There was speculation that the Supreme Court would rule that the federal judiciary has no role in settling those disputes, producing a stalemate that would essentially be a win for Trump. A federal appellate court came to a similar conclusion in a separate case concerning the House’s subpoena of former White House counsel Don McGahn.  

The Supreme Court, instead, went the “exact opposite direction,” Wright said..

“They created a very heavy judicial set of tests that they’re going to be involved in,” Wright said. 

The upshot for Congress of Thursday’s Supreme Court decision is that it may want to more seriously consider the other options it has for getting compliance with its subpoenas. Those tools include attaching subpoena compliance to funding or other must-pass legislation, though such an approach comes with political risks and only works if both chambers are on the same page.

Congress could also pass rules for the judiciary that would expedite cases dealing with subpoena disputes so that the “delay tactics are not that effective,” Turberville said.

To some, the delay caused by the decision itself qualifies as a clear win for President Trump, who prevailed in raising the bar for what Congress must show in order to get court enforcement of its subpoenas. 

“That’s more or less a win, not because they won on the substance but because they won on there having to be a heightened standard,” said Jed Shugerman, a law professor at Fordham. 

 

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