Behind the Bitter Legal Clash Between Congress and the White House. Who Might Win?
This is abnormal,” says Richard Ben-Veniste. “The Founders set up a system of checks of balances, and one of those is that the legislature acts as a check on the executive.”
A former lead prosecutor with the Watergate Special Prosecution Force who is now a partner at Mayer Brown, Ben-Veniste is referring to the across-the-board resistance President Donald Trump and his administration have mounted against a broad array of House committee inquiries.
When Democrats took control of the House last January, visions of subpoena power danced in their heads. They would finally impose oversight over a President they saw as lawless, corrupt, possibly disloyal, and certainly running amok.
Since then, at least five committee chairs, led by House Judiciary Committee chairman Jerrold Nadler and House Oversight and Reform Committee chairman Elijah E. Cummings, have demanded documents or testimony from more than 100 Trump allies or businesses, including the Trump Organization, the Trump Foundation, and members of the president’s family, including his daughter Ivanka and sons Eric and Don, Jr.
Yet six months later, the question looms: Will they have anything to show for their efforts before the next election—just 17 months off.
“We’re fighting all of the subpoenas,” Trump bluntly told reporters last April.
Though not literally true, his statement “forecast an approach that nobody’s taken in the past,” says Jonathan Shaub, an attorney who worked extensively on executive privilege and Congressional oversight issues while with the Justice Department’s Office of Legal Counsel from mid-2014 to mid-2017. “What is unprecedented is the number of both privilege and immunity claims that have come about.”
“The current situation is extraordinary,” asserts Mark J. Rozell, dean of the Schar School of Policy and Government at George Mason University, and the author of a book on executive privilege. “Our system of separated powers relies on the existence of some constitutional grey areas where each branch tries to protect its own prerogatives while acknowledging the legitimacy of the powers of the other branches. … It’s not working when the administration refuses any negotiation or cooperation with congressional requests for testimony or information but merely puts up privilege claims and other constraints.”
In April, Trump and his businesses filed two preemptive lawsuits to block third parties—two of Trump’s banks and his outside accounting firm—from turning over financial documents subpoenaed by chairpersons Maxine Waters (of the House Finance Committee) and Adam Schiff (of the House Permanent Select Committee on Intelligence).
In May, White House counsel Pat Cipollone warned chairman Nadler that the White House would simply not allow House committees to attempt any “do-over” of Special Counsel Robert Mueller III’s investigation into collusion with Russia and obstruction of justice.
By then, the administration had begun invoking executive privilege, a related doctrine called “testimonial immunity,” and an array of other arguments in an effort to thwart, or at least slow, Democratic oversight inquiries. It has raised such obstacles against demands for testimony and records from former White House counsel Donald McGahn; McGahn’s chief of staff, Annie Donaldson; Commerce Secretary Wilbur L. Ross; former White House communications director Hope Hicks; Justice Department official John Gore; and former White House personnel office chief Carl Kline. (McGahn, Donaldson, and Hicks are sought to provide evidence about obstruction of justice; Ross and Gore, as to whether the administration’s addition of a citizenship question to the 2020 census form was intended to disadvantage nonwhite voters; and Kline, to explore why security clearances were granted to Trump son-in-law Jared Kushner and two dozen others, allegedly over the objection of career security officials. (Two committees
have already recommended that Attorney General William Barr be held in contempt, while one has recommended that Secretary Ross be.)
Finally, in May, Treasury Secretary Steven Mnuchin refused to turn over Trump’s tax returns to chairman Richard Neal (of the House Ways and Means Committee), in the face of a statute whose text appears to require him to do so, arguing that Neal’s demand lacked a “legitimate legislative purpose.”
The two of these disputes already in litigation—one in Washington, DC, and another in Manhattan—involve subpoenas to Trump’s banks and accounting firm. The cases are quickly climbing through the courts. This article focuses on them, because the law that will govern their outcome explains the overall legal landscape of Congressional oversight, and the role it has played in the nation’s history—at least until now. It provides the big-picture backdrop against which all the other disputes are playing out.
The prevailing wisdom is that Trump will lose these two particular cases. The federal district judges hearing them (both Obama appointees) each quickly ruled against Trump in May, less than a month after each suit was filed. One appeal will be heard on July 12 in Washington, DC, while the other will likely reach a different appellate panel, in Manhattan, a few weeks later.
“These should be easy cases for the courts of appeals,” contends Brianne Gorod, chief counsel for the left-of-center Constitutional Accountability Center, in an interview. “The president’s lawyers have offered an understanding of Congress’s oversight authority that is at odds with Supreme Court precedent and is so limited that it would significantly undermine this critical component of our nation’s system of checks and balances.”
But while the committees may well prevail in these first two cases, any that might follow—like, say, a court challenge to the administration’s attempts to keep Secretary Ross or former communications director Hicks from testifying— may be more challenging. They might raise novel and weighty questions about executive privilege and related doctrines.
“They’ll be closer calls,” says Shaub, who is now the assistant solicitor general of Tennessee. “The Supreme Court has never addressed an executive privilege dispute between Congress and the Executive Branch,” he adds.
The landmark Nixon v. United States case, in which the High Court ruled that President Nixon’s Oval Office tape recordings were not shielded by an “absolute” executive privilege, resolved a dispute between two executive branch officials—Nixon and Watergate Special Prosecutor Leon Jaworski. (An “absolute” privilege is one that cannot be pierced under any circumstances. The Court found that executive privilege was, instead, only “qualified,” meaning that the lower court judge would be permitted to listen to the tapes and balance the prosecutor’s need for specific portions of them against the president’s need for confidentiality. Nixon resigned shortly after the ruling.)
Just as important, the executive privilege cases—especially those involving many pages of documents or testimony about multiple topics—may take so long to litigate that the administration will be able to run out the clock before the 2020 elections. When President Obama’s attorney general, Eric Holder, invoked the privilege in 2012 to resist a Republican inquiry into the Bureau of Alcohol, Tobacco, Firearms and Explosives’ “Fast and Furious” gunwalking scandal, it took four years to reach judicial resolution—just at the district court level. (Holder lost.)
The subpoena cases now in the court system concern financial records of Trump and his family businesses. The records sought stretch back as far as 2010, well before Trump even began campaigning for the Presidency. So executive privilege—which provides some protection to sensitive deliberations a President has with close advisers about official duties—has no relevance here.
Instead, Trump’s lawyers argue that the inquiry is abusive, harassing, and an invasion of privacy serving no legitimate legislative purpose.
“These subpoenas are the epitome of an inquiry into private or personal matters,” argued Patrick Strawbridge, an attorney for Trump, last May in the Manhattan case.
The committee’s goal, Trump’s legal team allege in their complaint in the Washington case, “is to expose Plaintiffs’ private financial information for the sake of exposure, with the hope that it will turn up something that Democrats can use as a political tool against the president now and in the 2020 election.”
The first case, which Trump filed in Washington in April, aims to block a subpoena issued by House Oversight chairman Cummings to Mazars USA, an accounting firm that did work for Trump. The subpoena sprang in part from the testimony of Trump’s former personal lawyer Michael Cohen last February before Cummings’ committee.
“Mr. Trump inflated his total assets when it served his purposes . . . and deflated his assets to reduce his real estate taxes,” Cohen testified at the time. At least two of the three financial statements Cohen displayed as illustrations had been prepared by Mazars.
Cummings argues that the Mazars documents are relevant to potential legislation relating to presidential financial disclosure obligations and strengthening government ethics and conflicts of interest rules. (Some such bills have been introduced, though their chances of passage are next to nil.) Still other documents—relating to the Trump International Hotel at the site of the Old Post Office in Washington—relate to Congress’s constitutional obligation to oversee foreign and domestic “emoluments” (gifts and titles) to federal officials.
Trump’s second suit, in Manhattan, seeks to block subpoenas issued by chairpersons Waters and Schiff, to Deutsche Bank and Capital One Financial Corp. Deutsche Bank has been described by the New York Times as Trump’s “lender of last resort”—the bank that lent to him when no one else would—and one that advanced his businesses more than $2 billion despite concerns about his solvency voiced by senior bank officials.
Waters and Schiff maintain that these subpoenas are relevant to potential legislation or appropriations bills relating to “the safety of banking practices, money laundering in the financial sector, foreign influence in the political process, and the threat of foreign financial leverage, including over the president, his family, and his business.”
Trump’s lawyers reply that these legislative justifications are mere pretextual fig leaves.
“This is not a ‘case study’ of a well-known individual who frequently uses banks,” his lawyers wrote in a brief in May. “It is an attempt to collect private information about a political rival in the hopes of politically damaging him by 2020.”
And, as a factual matter, the Trump lawyers’ hunches about the representative’s motives might be right. But that doesn’t mean their legal claims have merit. That’s because nearly a hundred years of precedent appears to establish that, when it comes to Congressional oversight, courts give Congressional committees enormous deference and presume a legitimate legislative purpose.
“Courts have been very hesitant to inquire into what Congress’ motives actually are,” says Shaub, the former Office of Legal Counsel attorney.
The key Supreme Court precedent goes back to the Teapot Dome scandal of the Warren Harding administration in the 1920s. A Senate committee suspected Harding’s attorney general, Harry Daugherty, of wrongdoing. It subpoenaed the testimony of his brother, who was a bank president in Ohio. When the brother defied the subpoena, an Ohio federal district judge initially ruled for the him, overturning the Senate’s contempt citation. The district judge cited the political venom—the “extreme personal cast” and “spirit of hostility”—that the Senators had displayed toward the attorney general, and characterized the Senators’ avowed legislative purpose as a pretextual “afterthought.” Because the Senate was really trying to show that Daugherty had committed a crime, the district judge added, it was, in effect, “exercising the judicial function,” which “it has no power to do.”
But the Supreme Court overturned the district judge, 8-0. It restored the contempt citation and found that, “so long as the subject was one on which legislation could be had,” the “presumption should be indulged that this was the real object.” In effect, so long as Congress could articulate a facially plausible reason to investigate, courts would not look behind that and try to read the minds of individual representatives.
Writing for the Court in that case, known as McGrain v. Daugherty, Justice Willis Van Devanter also declared that Congress’s “power of inquiry” was “an essential and appropriate auxiliary to the legislative function.” It had been “so regarded and employed in American legislatures [and the British Parliament] before the Constitution was framed and ratified,” he continued. As early as 1792, he noted, when the House subpoenaed documents relating to the US Army’s defeat in a battle against American Indians, the step was supported by then representative James Madison and four other framers of the Constitution.
On the other hand, Trump’s lawyers rely on a 1957 Supreme Court case that arose during the McCarthy era—a witch hunt. That case, known as Watkins v. United States, involved a labor organizer who had been subpoenaed before a subcommittee of the House Un-American Activities Committee. He had been held in criminal contempt when he refused to name names of associates he believed to be communists. In a 6-1 decision, authored by Chief Justice Earl Warren, the Court lifted the contempt citation and exonerated the labor organizer, explaining: “There is no congressional power to expose for the sake of exposure where the predominant result can be only an invasion of the private rights of individuals.”
Though most of the ruling was ostensibly based on technical, procedural flaws in the committee’s subpoenas, in truth Warren’s decision is hard to square with Van Devanter’s reasoning in McGrain. The outcome obviously reflected the justices’ concerns about the First Amendment speech and association rights of political leftists, and the abusive nature of the inquiry.
Importantly, though, just two years later, the Supreme Court addressed a nearly indistinguishable McCarthy-era case—and came out the other way. In that one, Barenblatt v. United States, a teaching assistant had been held in contempt for refusing to answer questions about whether he was or ever had been a member of the communist party. This time the Court sustained his contempt conviction, appearing to return to its earlier approach.
“The investigation here involved was related to a valid legislative purpose,” wrote Justice John Harlan II, “since Congress has wide power to legislate in the field of communist activity in this country.” (Chief Justice Warren dissented this time, along with three other champions of First Amendment rights: Justices Hugo Black, William O. Douglas, and William Brennan, Jr.) As a practical matter, this later case appears to have restored the presumptions of McGrain, while leaving some room for court oversight in cases of extreme legislative abuse.
But readers have probably noticed that there’s been something conspicuously missing from all of the discussion so far about whether the House committees investigating Trump have a “legitimate purpose.” There’s been no mention of the i-word: impeachment. Isn’t that the obvious, number-one, real-world reason the House is seeking all this information? To help it decide whether to exercise its constitutional impeachment power? And isn’t that a legitimate purpose for an inquiry?
Oddly, in the House committees’ briefing before the lower court, this was the dog that didn’t bark. Apparently their lawyers were uncertain whether Congress could justify a subpoena on those grounds without first convening a formal impeachment proceeding. (The committees’ lead lawyer in both cases, House general counsel Douglas Letter, did not respond to an emailed inquiry.)
Despite the omission, US District Judge Amit Mehta of Washington, DC—presiding over the case involving the subpoena to the Mazars accounting firm—brought it up on his own. Though he based his May 20 ruling—rejecting Trump’s arguments—mainly on the McGrain line of precedents, he also finally addressed the elephant in the room.
“It is simply not fathomable,” he wrote, “that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.”
Mehta also observed that, in the cases of both Nixon and President Bill Clinton, Congress began investigating before initiating impeachment proceedings. In Clinton’s case, moreover, the inquiry—stemming from the Whitewater land deals—involved alleged wrongdoing many years before he ran for President.
“Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office,” Mehta wrote. “This court is not prepared to roll back the tide of history.”
US District Judge Edgardo Ramos, of Manhattan, dismissed Trump’s arguments two days later, in a ruling read from the bench. “Simply put,” he concluded, “the committees’ subpoenas all are in furtherance of facially legitimate legislative purposes.”
It is likely that the two federal appellate panels will rule in these cases by August. If they come out the same way as one another, the Supreme Court would most likely decline review in the fall, when it returns from its summer recess. In the unlikely event that the appeals courts reach inconsistent rulings, the Court would probably hear the cases. And even without a split, says Supreme Court advocate Thomas Goldstein, of Goldstein & Russell, there is at least an outside chance that the Court might still take the cases, given the importance of the separation-of-powers issues presented. Even in that event, though, we will almost certainly have a ruling before the next election.
Still, those hoping to see Trump get a judicial spanking from a unanimous Supreme Court, the way President Richard Nixon did in the Oval Office tapes case, may be disappointed. That dispute arose a different setting, before a different Court, in different era. As noted earlier, that case didn’t involve Congressional oversight at all. It stemmed from a criminal prosecution of eight Watergate defendants. Both the prosecution and the defendants wanted access to Nixon’s tapes—an urgent and specific need that judges might regard as more pressing than an oversight committee’s more diffuse oversight demands. Finally, an impeachment inquiry had already been convened at the time of Nixon v. United States, and Nixon was advancing an extreme position, seeking “absolute” immunity.
On top of all that, add in the fact that we’re just living in different times. If the Supreme Court does elect to hear one these cases, it need not rigidly follow precedent—and, in any case, has some conflicting precedents to choose from. With the swearing in last October of Justice Brett Kavanaugh, the Court appears to be the most conservative since 1937. More disorienting still, pro-Trump and anti-Trump partisans see the world through radically different lenses. Lawyers and judges are not immune to these funhouse-mirror distortions. When Attorney General Barr summarily exonerated Trump of obstruction of justice charges in the face of evidence that more than 1,000 former federal prosecutors have since opined would merit indictment, even many old-school Republicans—who had supported Barr’s nomination—were left shell-shocked.
These days, partisanship conquers all. It’s hard to imagine that this Court’s intensely polarized membership would all come together and sign a ruling that would chastise the president and vindicate his harshest critics.