Next week the Supreme Court will hear oral argument in a trio of cases dealing with Trump’s efforts to thwart committees of the House of Representatives and the Manhattan District Attorney, Cyrus R. Vance Jr., from obtaining his financial records. The cases are Trump v Mazars USA, LLP, Trump v Deutsche AG, and Trump v Vance. The two cases regarding the House have been combined for oral argument, followed by the Vance case, all of which have been scheduled for May 12, 2020.
We will start with the cases from the House, and Lyle Denniston, who has been reporting on the Supreme Court for sixty years, starts us off with an excellent summary of the issues.
Aside from the absolute immunity claim in the New York state case, these are the issues that are raised in one or more of the newly granted cases:
- Is a subpoena a legally proper way for investigators to demand access to the President’s personal and private records, if the demand is not made directly against the President but against the financial or accounting firm that actually holds and maintains the records?
- Since the President is the highest official of the government, must any investigator’s demands for his personal and business records satisfy a higher legal standard than would apply if an ordinary citizen were the subpoena’s target?
- Does it violate the Constitution’s mandate to keep the branches of the federal government in separate spheres, if Congress demands the personal and business records of a sitting President?
- Is there any role for the courts to play in deciding controversies between the two other branches of the federal government – Congress and the presidency – because the Constitution mandates that they work out their differences?
- Did any of the congressional committees have the actual legal authority to issue a subpoena for the President’s personal and business records, because – it is claimed – the subpoenas were not explicitly authorized either by the rules of the House or by any vote of the full House?
Denniston’s full article can be found here:
constitutioncenter.org/...
In Trump v Mazars the issue regards the right of the House Committee on Oversight and Reform to obtain the confidential financial records of Trump and his business entities, including records from periods prior to Trump becoming President.
In Trump v Deutsche AG the issue is whether the House Financial Services and Intelligence Committees have the authority to obtain the President’s personal and business confidential financial records.
n Trump v Vance the Manhattan grand jury has served a subpoena on the custodian of Trump’s financial information, demanding ten years of his financial papers and tax returns.
Trump has argued that the House does not have the legal authority to obtain his financial records because the requests serve no legitimate legislative purpose. The DC District Court, and Court of Appeals ruled in favor of the House committees. Trump also filed suit in New York to block his accounting firm, and lenders, from providing information to the House claiming the requests were unprecedented and beyond the scope Congress’ powers. Both the New York federal district court and 2nd Court of Appeals decided in favor of the House committees. It’s important to remember that the House is not seeking records from the Executive branch for acts that happened during Trump’s term of office. These requests seek personal information, most of which precedes his inauguration.
Regarding the Manhattan DA case, which has requested broad financial disclosures regarding Trump, his family, and various Trump business entities, Trump has claimed that because these are criminal investigations they cannot proceed while he is in office. The District Court and 2nd Court of Appeals also decided against Trump in this case as well.
scotusblog.com, an extraordinary, non-partisan, resource regarding all case before the Supreme Court, has sponsored a symposium on these cases and has invited various lawyers and law professors, all who whom have submitted amicus briefs on this case, to post articles with their analysis of the legal issues involved.
Amy Howe, as usual, has an excellent overview and summary of the legal issues in these cases, written for the lay reader. Her summary can be found here:
www.scotusblog.com/…
At the symposium there are articles which favor the rulings of the lower and appellate courts, and others who offer a defense of the views of Trump’s counsel. I’ll provide a representative paragraph or two from each, but encourage those who are interested to read each of the articles. They are all relatively short. The first article, by two lawyers from the Constitutional Accountability Center, make the case of why the lower courts were correct, and that the legislative purpose of the House committees was more than sufficient to demand the information.
The consolidated cases Trump v. Mazars and Trump v. Deutsche Bank concern a set of congressional subpoenas for various financial records concerning President Donald Trump, his family and his businesses. There’s nothing novel about Congress’ engaging in an investigation or issuing subpoenas. Indeed, legislative oversight predates the nation’s birth, and Congress has been exercising its oversight authority since the earliest days of the Republic.
Consistent with that history, the Supreme Court has long held that the scope of Congress’ investigatory power is coextensive with the scope of its power to legislate. As the court has explained, Congress’ power to investigate encompasses “inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes,” and it includes “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”
The full article can be found here:
www.scotusblog.com/…
The second article is by law professor Neil Kinkopf who does an excellent job of summarizing the two important separation of powers issues: the scope and content of Congress’ powers of oversight and investigation, and the scope and content of the President’s immunity from prosecution.
“……..say the president’s lawyers: “These subpoenas do not have a legitimate legislative purpose.” Rather, Congress is hellbent on exposing the president’s finances for the sake of exposing them and in order to reap political gain. Congress’ articulated reasons are “makeweight” and the “real reason” is, at best, to reveal presidential wrongdoing — in other words, to engage in law enforcement. As the court said in Watkins, inquiries conducted “for the personal aggrandizement of the investigators or to punish those investigated are indefensible.”
The president’s argument has a certain appeal. It would indeed be hopelessly naïve to imagine that Congress is interested in the president’s tax returns purely for legislative purposes and irrespective of political considerations. Yet the argument suffers from several fatal flaws. Foremost, the Supreme Court has expressly rejected it. The petitioner in Watkins made a nearly identical argument. The court noted that Congress’ motive in that case may have been problematic, “[b]ut a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly’s legislative purpose is being served.” In other words, Congress’ true motive is irrelevant as long as the inquiry actually serves its stated, legitimate purpose.
Professor Kinkopf’s full article can be found here:
www.scotusblog.com/…
The third article is by law professor Burlette Carter. She has focused on the separation of powers issues in the actions of Congress to issue the subpoenas to Trump for personal information before and during his presidency. In her view the House lacks subject matter jurisdiction under either House rules or the Impeachment clause of the Constitution. Hers is the longest article and I’ll quote three paragraphs however they are not contiguous in her article, so this will seem a little choppy. I would encourage those interested to read the entire piece.
Democrats won a House majority in the 2018 election. In January 2019, through little-noticed changes contained in House Resolution 6, the House amended Rule X(3)(i), which defined “special oversight functions” of the Oversight Committee. Originally, the rule provided that the Oversight Committee would “review and study on a continuing basis the operation of Government activities at all levels with a view to determining their economy and efficiency.” The 2019 amendments struck the words “with a view to determining their economy and efficiency” and replaced them with “including the Executive Office of the President.” Another amendment eliminated the word “Government” from the name of the Oversight Committee. Instead of the “Committee on Oversight and Government Reform,” it became the “Committee on Oversight and Reform.”
The British Parliament had the power to bring and investigate criminal charges against any individual. That power was called its power of impeachment. It shared this power with crown prosecutors and common law courts. The Founders rejected this model, narrowing the meaning of “impeachment” to crimes committed by government officials while in office. As for the parts of the Parliament’s impeachment power that affected ordinary citizens, the Founders centralized that power in the executive and judicial branches. They recognized this division of power when they provided in Article I Section 3 of the Constitution that, after a conviction and removal by impeachment, a president will be subject to “Indictment, Trial, Judgment and Punishment” in common law courts. This history indicates that Congress has no power to conduct criminal investigations outside of impeachment.
Fourth, the committees’ actions do not measure up well against traditional notions of “oversight” jurisdiction. “Oversight” has traditionally meant the authority to investigate matters of general applicability, not the authority to investigate specific accusations of personal misconduct. Notably, the words House Democrats struck in the January 2019 rules amendments mentioned above—“with a view toward determining their economy and efficiency”—date back to the Legislative Reorganization Act of 1946. Those words clearly indicate a focus on the conduct of the government and its officials, not private misconduct.
Professor Carter’s full article can be found here:
www.scotusblog.com/..
While Trump lost his cases, at the DC Court of Appeals 2-1 regarding the House’s subpeonas, the dissenting opinion carried a theme we see in all the opposing briefs. Roger Parloff at Newsweek wrote a very good article on all of these cases including this.
But there was an important dissenting voice on the appeals panel. It belonged to Circuit Judge Neomi Rao, a 46-year-old Federalist Society favorite whom Trump appointed to the bench in March, just a month before the subpoena was issued. (Her bitterly contested appointment was approved by the Senate on a party-line vote, 53-46.)
Rao homed in on a particular clause from chairman Cummings' memo to his committee, laying out the reasons for the subpoena. There Cummings had specifically admitted that he also wanted to find out "whether the President may have engaged in illegal conduct before and during his tenure in office."
Rao then drew a bright-line distinction that, if adopted by the Supreme Court, would mark a radical change from existing practice. "Allegations of illegal conduct against the president cannot be investigated by Congress except through impeachment," she wrote. This was so, she insisted, even if "the investigation also has a legislative purpose." (Although Congress did, months later, start a formal impeachment inquiry to study unrelated matters—the "favor" Trump asked of Ukrainian president Volodymyr Zelenskiy—the validity of the subpoenas now before the Court will probably be unaffected by that development.)
Parloff’s Newsweek article can be found here;
www.newsweek.com/...
The fourth article is by Joseph Lawrence, a lawyer with the Eagle Forum Education and Legal Defense Fund and focuses very specifically on separation of powers issue. His article encourages the Court to protect the presidency from politicized investigations.
On the issue of the House and its subpoenas, Lawrence claims:
Although the House has the implied power to issue subpoenas in support of its legislative efforts, that implied power does not extend to the House’s – much less a House committee’s – acting in a law-enforcement capacity. Instead, the House has only one law-enforcement function, and it is an express power: the power to impeach a president. The implied power does not displace the sole and express criminal enforcement power that the Constitution gives the House.
If Congress has the implied power to subpoena the executive branch, that power is implied from Congress’ power to legislate. This means that Congress cannot use its implied subpoena power for other purposes, such as law enforcement or – potentially – opposition research. As Chief Justice John Roberts held in Department of Commerce v. New York, quoting the eminent Judge Henry Friendly, for whom he clerked, the court is “‘not required to exhibit a naiveté from which ordinary citizens are free.’” These subpoenas appear to have nothing to do with legislation, beyond a pretext. And maybe not even that.
Regarding the case, Trump v Vance, there are fewer willing to defend Trump’s view that as President he is immune from a state criminal investigation. This seems to be the case Trump is most likely to lose. The Department of Justice’s internal policy memorandum, regarding the prosecution of a sitting president, is not statute and is not binding on state or local prosecutors. However, Lawrence does the best summary of the case for the Trump side of the argument here.
New York County’s District Attorney Cyrus Vance fares no better. In the third case, Trump v. Vance, he makes many arguments as follows, which do not apply to this situation: (1) Presidents can be subpoenaed as witnesses, but President Donald Trump is clearly a target of the investigation; (2) presidents can be sued for private civil harms in federal court, but Vance seeks documents for a public harm in a criminal case in state court; (3) courts can – per Supreme Court authority – trust U.S. attorneys to pursue cases in the public interest, but that does not apply to every county district attorney, many of whom have launched politically motivated attacks; (4) federalism protects state and local actions within the historic powers of those levels of government, but the protected field is the federal field (prosecuting presidents) not a state or local one (prosecutions generally), and that federal field has no history of state and local activity; and (5) government is entitled to a “presumption of regularity,” but this is no ordinary case, and several facets of the case raise troubling questions. In short, if Vance thinks that the president committed a crime, he needs to wait until the president leaves office to pursue it. Otherwise, every future president could face prosecutions and subpoenas from disaffected corners of the country.
Lawrence’s full article can be found here:
www.scotusblog.com/...
As noted in a very recent article by well regarded Supreme Court reporter Marcia Coyle, The Supreme Court throws a late breaking curve ball in the Trump Tax battle, the Court has asked the lawyers to brief the issue of whether the federal courts should even be involved in disputes between the House and the President on these matters. A key excerpt from the article.
Roberts explained the political question doctrine in this way: "Chief Justice Marshall famously wrote that it is 'the province and duty of the judicial department to say what the law is.' (Marbury v. Madison, 1803) Sometimes, however, 'the law is that 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.'
"In such a case the claim is said to present a 'political question' and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction," he wrote. "No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority."
The full article by Coyle can be found here:
constitutioncenter.org/...
This issue was also addressed by Lawrence in his article where he states:
Finally, Eagle Forum ELDF’s brief also suggests that the court deem such inter-branch subpoenas unenforceable in federal court. The legal doctrine under which the court would essentially recuse itself is known as the “political question” doctrine. Under this doctrine, federal courts dismiss suits for lack of jurisdiction under Article III of the Constitution, which defines and limits the federal judicial power. Eagle Forum ELDF does not suggest dismissing the president’s suits to quash the subpoenas; instead, Eagle Forum ELDF suggests that the court should rule for the president because the subpoenas are unenforceable.
As it relates to the cases involving the House the Court has several options, finding for the House which would free Mazars and Deutsche Bank to provide the financial information. This is how nearly all the federal judges have ruled who were involved at the lower courts. The Court could find for Trump, declaring that this is a fishing expedition by the Democrats in the House, with no clear legislative purpose, thereby blocking the House from receiving the information, and setting controversial precedent on the oversight and investigative powers of the Congress. The Court could rule that while Congress has the right to this sort of information, through the use of subpoenas, these specific requests had procedural errors in how the subpoenas were issued, and invite the House to have a do-over. Or the Court could decide it has no role here because of the “political question” issue. While declaring that there is no role for the Court might seem like a Trump win, it isn’t because it is Trump who is blocking the financial information, and free from his lawsuits both Mazars and Deutsche Bank have said they will comply with the House subpoenas. However, that outcome may make it more difficult for a future Congress seeking certain types of information from the President.
I would not be surprised, that if the Court finds for the House, that the Justices require extra precautions to keep Trump’s tax returns confidential and accessed only by experts, including members of the Congressional staff, looking for specific types of information. I think it is very possible that Trump’s returns will not be made public before the election, even if the House prevails.
Regarding the case of the Manhattan DA this seems the weakest of Trump’s defenses and one I think he is likely to lose. How quickly the Manhattan DA can review the documents and determine if there are criminal charges they wish to pursue is unknown. It’s also unclear whether Cyrus Vance, Jr will try and indict Trump before the election. Politically it would be helpful to the Democrats, and Vance will have to decide how big a spotlight he wants. In any event I don’t think Vance will release any Trump financial information, or tax returns, prior to an indictment, and it is possible that even then the disclosures might be limited.
