OP-ED: It’s Up to the Lower Courts to Speed Up Trump Subpoenas Now
On Thursday, the Supreme Court finally released its long-awaited decision in a major case concerning congressional subpoenas for President Donald Trump’s financial records, and the opinion was a mixed bag. On one hand, the decision reaffirmed Congress’ broad power to investigate in all areas on which legislation can be crafted, including investigations of the executive branch and the president, and it rejected the stringent limitations that the president wished to place on such investigations. On the other hand, however, the court held that congressional subpoenas related to the president are subject to a somewhat heightened standard, and it sent the case back to the lower courts to decide the validity of the subpoenas under this standard. Thus, whether Congress will eventually receive the documents it seeks, and whether it will receive them in time to complete its investigations, will depend on how quickly the lower courts expedite further proceedings in these cases.
As I’ve explained before, the Supreme Court has long held that the scope of Congress’ investigatory power is coextensive with the scope of its power to legislate. Here, the House committees that issued the relevant subpoenas gave ample explanation for why they needed the requested records to fully exercise Congress’ power to legislate. First, the Oversight and Reform Committee subpoenaed Mazars, Trump’s accounting firm, for financial records and other documents relating to Trump and his businesses. Congress needs these materials to help decide whether to pass legislation related to presidential conflicts of interest or financial disclosures, including whether federal disclosure laws should be strengthened. Second, the Financial Services Committee subpoenaed financial records from Deutsche Bank and Capital One, two of Trump’s creditors, to investigate whether and how to strengthen federal banking laws, particularly with respect to lending practices and the prevention of money laundering and loan fraud. Third, the Intelligence Committee subpoenaed financial records from Deutsche Bank to further the committee’s investigation of Trump’s entanglements with foreign entities and its determinations about whether and how to legislate to prevent future foreign interference.
Though Thursday’s decision from the Supreme Court did not decide one way or the other the validity of these particular subpoenas, it did include some important language reaffirming Congress’ broad oversight powers. In a decision by Chief Justice John Roberts and joined by six other justices, the court explained that Congress’ investigatory power “encompasses inquiries into the administration of existing laws, studies of proposed laws, and surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”
More importantly, the court rejected the “more demanding standard” proposed by the president and the Department of Justice, which—citing earlier cases involving President Richard Nixon—had advocated for a standard requiring Congress to show a “demonstrated, specific need” where the president’s papers are at issue. The court explained that this stringent standard derived from cases involving “Oval Office communications over which the President asserted executive privilege.” But the documents requested in Mazars are not official communications; they are private financial records. The Supreme Court therefore concluded that applying a heightened standard to private documents “would risk seriously impeding Congress in carrying out its responsibilities,” which would be 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 legislative effectively.”
The court, however, declined to decide the propriety of Congress’ subpoenas in Mazars. In the court’s view, although the president’s test was too stringent, the House’s approach “fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information.” According to the court, this is true even though the papers that Congress seeks are personal, not official.
The court then introduced a balancing test “that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President.” Specifically, a court must consider whether Congress could get the information it seeks from other, nonpresidential sources, whether the subpoena is no broader than reasonably necessary to support Congress’ legislative objective, whether Congress has put forward enough evidence to establish that a subpoena advances a valid legislative purpose, and whether there are any impermissible burdens on the president. Because it did not believe that the lower courts sufficiently considered these issues, the court remanded the case to the D.C. Circuit and the 2nd U.S. Circuit Court of Appeals to determine the legality of the subpoenas.
At first glance, this decision seems like a pretty good outcome for the House. After all, House committees have issued subpoenas that easily meet this standard. For instance, the Oversight Committee’s subpoena concerns presidential conflicts of interest and financial disclosures and is premised on known omissions from the president’s disclosures as well as many reports of his foreign entanglements. Similarly, the Intelligence Committee’s subpoena concerns foreign interference in our elections as a result of the president’s financial entanglements abroad. There is no substitute to Congress receiving the president’s financial records to determine whether and how to solve these issues through legislation. And there is little burden on the president to having his third-party accounting firm transmit those documents to Congress. Indeed, in Thursday’s other major decision, Trump v. Vance, the court held that transmitting similar documents to a New York grand jury does not impose a constitutionally impermissible burden on the president. Congress should win on the merits even under the court’s new, heightened standard.
The problem is that by remanding the cases for further proceedings, instead of just applying this new standard itself, the court threatens to grant the president a de facto win even if the courts eventually decide that Congress is right on the law. As I’ve explained before, the House is not a continuing body, and the current Congress exists only until Jan. 3, 2021, at which point its ongoing investigations will end, its subpoenas will expire, and a new Congress will be sworn in. Thus, if the case is not resolved by the lower courts for many months, the election will be over and the 116th Congress will have long since adjourned. For that reason, the lower courts should resolve these cases quickly—within weeks, if not days—in order to ensure that Trump cannot avoid accountability simply by continuing to draw out this litigation.
Thankfully, there is precedent for courts hearing important cases like this one on an expedited timeline. The Supreme Court has done it: In United States v. Nixon, for example, a case about a president’s compliance with subpoenas, the court heard argument on July 8, 1974, and decided the case just two weeks later on July 24, all during its summer break. And the 2nd Circuit moved incredibly fast when it was deciding the Vance case concerning the New York grand jury’s subpoena of the president’s tax returns last fall. The district court issued an opinion on Oct. 7, the 2nd Circuit panel heard argument on Oct. 23, and the court issued its decision on Nov. 4.
The 2nd and D.C. circuits should move just as fast when resolving these cases. The issues have been ventilated in the federal courts for close to a year now, and the parties have briefed these issues repeatedly. In short, there is no reason for any further delay. Only by moving on an expedited basis can the courts ensure that the president cannot wait out any final decision until it is too late for it to make any difference.