Thanks to the Court’s new experiment in simulcasting, it’s possible you’ve already listened to Tuesday’s oral arguments in the two Supreme Court cases involving subpoenas to President Trump’s accounting firm, Mazars USA, and his banks, Deutsche Bank and Capital One. If so, you may well already have your own take about the arguments, and about how the Court should, or likely will, decide the cases. Even so, I thought it might be worth flagging a couple of aspects of the congressional subpoena case(s)—Trump v. Mazars and Trump v. Deutsche Bank—that haven’t yet received the attention they warrant.
The Significance of Presidential Oversight: Distinguishing Among the House Committees and the Primary Functions of Their Subpoenas
The first is a distinction Justice Kagan drew, late in the argument, among the three different House committees seeking Donald Trump’s financial records. (The committees’ subpoenas are described in detail on pages 17-36 of the House brief.) The Financial Services Committee “doesn’t seem to be looking into the President,” said Justice Kagan, but at “a much broader topic,” namely (as the House brief describes it), “the use of banks in the United States to carry out international money-laundering as well as unsafe lending practices,” in order to assist the Committee’s “oversight of regulatory agencies’ activities in these areas.” The Committee has offered some reasons why it’s seeking information about Trump and his enterprises for such purposes (see pages 17-25 of the House brief), but at least some of the Justices were clearly concerned that the scope of the Financial Services Committee’s Trump-related subpoenas was ill-tailored to that objective, and potentially pretextual. Hence Justice Kagan’s question about whether there might be “some heightened need for Congress to say why it is that they’re focusing on presidential records for that purpose.”
By contrast, the House Permanent Select Committee on Intelligence (HPSCI) and the House Oversight Committee issued their subpoenas in order to find out important information about the President himself—information potentially relevant to their ability to assess his performance of his office’s constitutional functions. In an amicus brief I filed with several other scholars, we emphasize that one especially important function of these investigations by HPSCI and the Oversight Committee is to determine whether the President has continuing conflicts of interest arising from his undisclosed personal financial dealings (e.g. with foreign nations) that could impair his conduct in office.
Trump himself, and the Solicitor General, suggest that the Committees’ focus on Trump himself makes those investigations more constitutionally dubious. We explain in our brief, however, why they’re wrong to suggest that such an oversight function, and an “informing” objective, is constitutionally suspect, and why Congress’s investigative authority isn’t limited to inquiries primarily designed to produce legislation. Indeed, as the brief explains, congressional oversight of the government—including of the President and other Executive officers—is an inherent and vitally important legislative function that Congress has “assiduously” performed “[f]rom the earliest times in its history.” Watkins v. United States (1957). And in this case, those functions are a far stronger justification for the HPSCI and Oversight subpoenas at issue than, e.g., the need of the Financial Services Committee to collect all the Trump-related information from Deutsche Bank that it’s seeking in order to “determine whether current law and banking practices adequately guard against foreign money laundering and high-risk loans” (House Br. 17-18).
The Burdens on the President
Throughout both oral arguments, the Justices asked repeatedly about how courts should assess the burdens of the subpoenas on the President.
As we discuss at pages 27-30 of our brief, a well-established line of the Court’s cases, most of them unanimous, such as the Nixon tapes case (1974) and Clinton v. Jones (1997), teach that the President must at a minimum make a showing of a burden on his time and energy that impairs his ability to perform the duties of his office in order to invoke the judiciary’s aid in limiting judicial process.
In neither of these cases has Trump made any showing at all of an actual burden on his ability to perform his job—such as that the subpoenas will significantly divert his time and attention, or that they would reveal privileged information that would chill the President’s communications with his advisers. (Moreover, even if the President were able to show that a particular subpoena would significantly burden his time and attention, the Court held in Clinton v. Jones that that alone wouldn’t make it unconstitutional: “[P]etitioner errs by presuming that interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions. . . . The fact that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution.”)
Trump and the SG, however, argue that Trump shouldn’t have to make such a showing—that, for example, the Committees in Trump v. Mazars shouldn’t be able to obtain the records in question unless and until they show that the information they seek is (in the words of the SG) “demonstrably critical” to a specifically asserted legislative (i.e., legislation-focused) purpose. (They make a similar argument with respect to the burden that should be placed on the New York grand jury in the Vance case.)
Such a shifting of the burden of justification would be inconsistent with the Court’s precedents. So what’s the reason Trump and the SG offer for such a fundamental shift in doctrine?
Well, for one thing, in the congressional subpoena cases Trump invokes the specter of abusive subpoenas made for pretextual reasons. Justice Sotomayor, for example, asked about some hypotheticals Trump raised “that are troubling: [asking for records of] the President’s transcripts simply to pass on educational reform legislation or subpoenas of his personal medical records simply to enact general healthcare reforms.” Justice Kavanaugh likewise asked why, on the House’s theory, a committee couldn’t seek a President’s health records for the ostensible purposes of informing consideration of health-care reform legislation. As we explain at page 32 of our brief, however, the existing standards for assessing the validity of congressional subpoenas already adequately address such hypotheticals:
The President’s private health records would plainly not be pertinent to an inquiry into general healthcare reform because there would be no basis for singling out the President, of all people, for the demand. Likewise, it is hard to imagine the possible relevance of the President’s high school grades to any legitimate congressional objective. Here, by contrast, there is an obvious connection between the President’s undisclosed financial records—records that he alone, unlike all other recent Presidents, has refused to publicly disclose—and the possibility that he has conflicts of interest that could impair his official conduct and interfere with his constitutional duties.
The more noteworthy theme of Deputy Solicitor General Wall’s argument on Tuesday, however, was a new justification for flipping the burden to the congressional committees—namely, the risk of “undermining.” Several times, Wall referred to the “the dangers of harassing and distracting and undermining the President.” As for “harassing and distracting,” again, Trump hasn’t shown that these subpoenas will have any such effect, let alone one that would significantly impair his ability to perform his constitutional duties. Indeed, there’s far less risk of those things here than in Clinton v. Jones.
But that still leaves “undermining”—a notion that appeared rarely if at all in the briefing. What did Wall mean by that?
He didn’t say. Presumably, however, he meant that if the subpoenas do uncover wrongdoing, or conflicts of interest, that could “undermine” at least this President in the sense that the public will come to question his ability to perform the duties of his office.
If that’s what Wall meant, however, then there’s nothing constitutionally problematic about such “undermining.” To the contrary, that’s one of the most important benefits of congressional oversight: to offer the People and Congress the information they need to take steps to address any legitimate concerns about the individual wielding such vast power in office. Here’s how we put the point in our amicus brief:
Congressional oversight of Executive officers, and the related function of informing itself and the public of what it has uncovered, . . . provides the public with information about whether government officials are faithfully performing their duties on behalf of the Nation—indispensable information for the People to be able to choose their agents wisely (and decide whether to retain them in office). In Woodrow Wilson’s words, “[u]nless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government,” the country would “remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.”
Second, congressional oversight of Executive officers’ conduct is a central component of the checks and balances by which the “ambition” of each branch can “counteract ambition” in the other and thereby “keep … each other in their proper places.” The Federalist No. 51 (Madison). If such oversight reveals Executive abuses, for example, Congress can respond with new legislation or changes in allocations of appropriations. In other instances, Congress may rebuke, condemn, or reprimand Executive officials, including the President, for wrongdoing or maladministration. In extreme cases, an inquiry may reveal evidence of impeachable conduct—something that the House ordinarily cannot assess at the outset.
Do revelations of wrongdoing, or conflicts of interest, or bad judgment, “undermine” the President and other Executive officials in the eyes of the people? Of course they do. And indeed, that’s often an objective of the investigation for at least some legislators, as it has been in virtually every high-profile congressional investigation in our history, from the St. Clair expedition to the Committee on the War in Lincoln’s time, to the Teapot Dome scandal, to Watergate, to Whitewater, to Iran/Contra, to Benghazi, and on and on . . . . (See pp. 4-12 of the House brief and pages 21-24 of our brief for chapter and (many) verses.)
On at least two occasions in the Mazars arguments, Deputy SG Wall stressed that the potential harm is not only that the subpoenas might “undermine” President Trump, but that they could “harm and undermine the presidency of the United States–not just this President, the institution of the presidency going forward.” It’s deeply unfortunate, of course, when the presidency or any other of our institutions is tarnished by disclosures of the wrongdoing or malfeasance or negligence of those who hold office in them. But the fact that such things are brought into the light, thereby “undermining” the officeholder, is one of the most important functions of congressional oversight. As Justice Ginsburg noted in the Vance argument, the Nixon tapes had a devastating impact on the President: He resigned from office—the ultimate “undermining.” But that was a feature, not a bug, of the Ervin Committee’s justly celebrated investigation.
 We also stressed that “just as critically, congressional oversight acts as a potent deterrent to Executive abuses in the first instance.” See Fitzgerald, 457 U.S. at 757 (“Vigilant oversight by Congress also may serve to deter Presidential abuses of office.”). “Without some outside check on the Executive Branch, there would be little to discourage unscrupulous officials from acting in their own, and not in the nation’s, best interests.” William Marshall, The Limits on Congress’s Authority to Investigate the President, 2004 U. Ill. L. Rev. 781, 799; see also Wilson ( “[D]iscussed and interrogated administration is the only pure and efficient administration.”) “The very prospect of congressional oversight,” we wrote, “may stop Executive officials, including the President, from engaging in corruption or misconduct. As the amici who have worked in the Executive branch can attest, the possibility of having to explain one’s decisions to Congress has a significant tempering impact on how one performs one’s work. It checks impulses to overstep, cut corners, or disregard norms designed to protect the public interest.”