To fend off congressional oversight being conducted by Democrats in the House of Representatives, the president’s various legal teams are waging a frontal attack on the scope of Congress’s power to investigate. It is the argument the White House Counsel has used to justify withholding records from the House Committee on Oversight and Reform (HCOR) related to White House security clearance adjudications. Treasury Secretary Steve Mnuchin has used it to deny production of President Donald Trump’s tax returns to the House Ways and Means Committee. It is also the argument Trump’s private legal team has used – unsuccessfully so far – to seek to prevent accounting firm Mazars USA from producing financial documents related to Trump to HCOR, as well as to prevent Capital One and Deutsche Bank from producing documents to the House Judiciary Committee.

This strategy is an attack that targets the legitimacy of congressional action and motives.

But, as I have previously discussed, a wholesale attack on the legitimacy of congressional oversight is inconsistent with prior precedent. In Trump v. Cummings, the case involving the HCOR subpoena of Mazars, Judge Amit Mehta observes the long line of precedent emphasizing the breadth of Congress’s power of inquiry, including obtaining information about current execution of the laws, prospective legislation, and government – including presidential — misconduct.

And there are additional reasons the courts are resistant to arguments seeking to limit the scope of congressional inquiries, or to assess congressional motives. The judiciary should afford Congress significant deference and comity, especially when the judiciary is asked to resolve controversies about how Congress is managing its own proceedings. And, as discussed below, the political question doctrine — a doctrine depriving courts of jurisdiction to resolve certain disputes between the elected branches — casts its shadow. These factors combine to suggest the appellate courts could quickly dispense with the third-party subpoena cases involving banks and accountants.

But while attempts to deny the legitimacy of congressional oversight in toto may be destined for quick demise, they point to a more fundamental doctrinal instability in the law of executive privilege. It gets more complicated, and not as easy to dismiss, when the argument shifts from ‘Congress lacks a legitimate legislative purpose’ to ‘Congress’s legitimate information needs outweigh the Executive’s confidentiality interests.’ That fault line is sure to be tested as the court cases turn from congressional subpoenas on private third-parties to congressional subpoenas of current and former Trump administration officials.

Executive Privilege is Not Without Limits

In United States v. Nixon, the Supreme Court recognized a constitutionally grounded executive privilege designed to protect presidential communications, but that “the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch.” The Court, of course, then, famously ordered President Richard Nixon to produce recordings of Oval Office conversations to the Watergate Special Prosecutor.

That logic applies as well to executive privilege assertions against congressional subpoenas. In a 2014 opinion in the litigation over the Operation Fast and Furious congressional subpoena, Judge Amy Berman Jackson noted that an assertion of executive privilege over a deliberative process is “a qualified privilege, and it can be overcome by a sufficient showing of need.” In that opinion, Judge Jackson contemplated later “tak[ing] up the question of whether the privilege has been outweighed by the need for the records.”

Political Question Doctrine

But in balancing the information needs and confidentiality interests, courts also need to avoid running afoul of the political question doctrine.

The political question doctrine recognizes that in some cases “the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” Vieth v. Jubelirer. In Baker v. Carr, the Supreme Court established six independent political question tests:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Courts have been sparing in their use of the political question doctrine when compared to other justiciability doctrines, such as standing. Part of that reluctance stems from the consequences of designating a claim a political question because it places that determination beyond court power.

Put another way, while a ruling that someone lacks standing to sue essentially says, “not you, but perhaps someone else” can bring the claim, a political question ruling says, in effect, “this court can’t decide that type of question.”

So how does that relate to ‘legislative purpose’ in congressional investigations?

Returning to the Operation Fast and Furious litigations, Judge Jackson’s 2013 opinion addressing justiciability issues suggested that the balancing process would edge up to the line of the political question doctrine. As I wrote at the time, Judge Jackson asserted:

that questions of congressional “need for the material,” the “merits of the grounds for withholding” by the Executive Branch, and the adequacy of the Attorney General’s offers of accommodation would “put the Court squarely in the position of second guessing political decisions and take it well outside its comfortable role of resolving legal questions that are amenable to judicial determination.” (Quoting Judge Jackson’s 2013 order)

Echoing that logic, in Trump v. Cummings, Judge Mehta reasons “[o]nce a court finds that an investigation is one upon which legislation could be had, it must not entangle itself in judgments about the investigation’s scope or the evidence sought.” The court also rejected Trump’s request to narrow overbroad requests, indicating the court “cannot ‘engage in a line-by-line review’ of the Mazars subpoena and narrow its demands.”

But this points to the coming tension the courts will likely have to address. In a 2014 Just Security article, I struggled with “how a court could properly weigh congressional need for information against executive confidentiality interests because both of those calculations are inherently political.” At the same time, I predicted that a court would be required to balance “congressional need, withholding grounds, and accommodation alternatives” because it is the essential inquiry. An obligation to avoid judicial evaluations of inherently discretionary political choices made by Congress and the president will run headlong into an executive privilege doctrine that calls for courts to do just that.

Perhaps the courts will be able to dispense with most of the coming executive privilege issues on other grounds such as privilege applicability, exceptions, public release, or waiver. But eventually there will be a real clash of legitimate information needs of Congress and confidentiality interests of the Executive – and assessing the relative merits of Congress’s legislative purpose will be a much tougher nut to crack than these third-party subpoenas on companies.

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