After listening to oral argument today, it became clear that there is a majority on the court ready to reconsider U.S. v. Nixon and Clinton v. Jones, and willing to devise a new standard for presidential subpoenas. It is yet another departure from precedent by the Roberts Court. And it will allow Donald Trump to run out the clock before this year’s election.
Ian Millhiser has the most cogent and thorough analysis I have seen today. The US House’s Supreme Court defense of its Trump investigation was a disaster:
Both involve congressional subpoenas seeking, among other things, many of President Trump’s financial documents. The subpoenas target banks and an accounting firm that possess many of Trump’s documents; Trump sued them to prevent them from complying with the subpoena.
The Supreme Court has said repeatedly, over the course of many decades, that courts owe tremendous deference to congressional investigators. The Court held in Quinn v. United States (1955) that congressional power to conduct investigations is “co-extensive with the power to legislate.” Legislative subpoenas are permissible, the Court later explained, whenever that subpoena is “intended to gather information about a subject on which legislation may be had.”
And yet, at Tuesday’s oral arguments on both cases, a majority of the Court seemed concerned that the House has too much power to investigate the president. The Supreme Court appears likely to create a special rule for Trump — or, at least, for sitting presidents — that it wouldn’t apply to any other person.
Part of the story here is that Douglas Letter, the lawyer for the US House, delivered a disastrous performance at Tuesday’s oral argument. Not long after Letter began his argument, Chief Justice John Roberts expressed disagreement with the Court’s longstanding rule giving Congress broad power to conduct investigations, and asked Letter if he could suggest any limits on congressional investigatory power. Letter had no good answer to that question, and he stumbled over various versions of it again and again as the argument wore on.
For someone who cares about presidential accountability, or about precedent, or about the basic rule that no one should be above the law, it was a torturous spectacle. It’s clear that a majority of the Supreme Court believes that decades of prior decisions were wrongly decided, at least when President Trump is involved. And Letter did nothing to allay their concerns.
The one silver lining for anyone troubled by the argument in Mazars and Deutsche Bank, is that the Court appeared more measured in a third case that was also argued on Tuesday, Trump v. Vance. Vance involves a New York grand jury’s investigation into possible criminal activity by the Trump Organization, and the justices appeared more sympathetic to the Manhattan district attorney’s arguments that this investigation should not be shut down than they were to Letter’s arguments in Mazars and Deutsche Bank.
But even if Trump does not prevail in Vance, it’s not clear that such a decision will matter very much in the short term. As several justices emphasized, documents obtained in a grand jury investigation are typically confidential unless they are introduced as evidence in a criminal proceeding. So, if Trump or the Trump Organization is engaged in criminal activity, it is unlikely that the public will see the evidence of that activity any time soon.
Existing law is very unfavorable to Trump
It’s tough to exaggerate just how thoroughly current Supreme Court precedents cut against Trump. The Court has repeatedly emphasized that Congress must have a broad power to conduct investigations, because it is not possible for Congress to make informed law-making decisions without such investigations.
As the Supreme Court explained in Eastland v. United States Servicemen’s Fund (1975), “the power to investigate and to do so through compulsory process … is inherent in the power to make laws.” Without such a power, “a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”
Eastland is one of many Supreme Court decisions emphasizing that Congress may conduct nearly any investigation, so long as that investigation is “intended to gather information about a subject on which legislation may be had.”
Courts, moreover, are forbidden to dig into the legislature’s reasons for conducting a particular investigation. “So long as Congress acts in pursuance of its constitutional power,” the Court held in Barenblatt v. United States (1959), “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
So that’s what the law says. And under that law, the House wins both Mazars and Deutsche Bank. The first case involves a House Oversight Committee investigation targeting the president’s accounting firm, Mazars USA. It seeks information on whether existing presidential financial disclosure laws are sufficiently robust, or whether they need to be stricter.
Similarly, the Deutsche Bank case involves two parallel House investigations targeting banks that possess some of Trump’s financial records. Among other things, those investigations seek information on whether there are “any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests.” These investigations could inform legislation seeking to reduce foreign money laundering and to reduce foreign interference in US elections.
The Court appears to believe that existing law should not apply to the president
Not long after Letter began his argument, Chief Justice Roberts revealed just how sympathetic he is to Trump’s position. Letter’s brief, Roberts noted, states that a congressional investigation must “concern a subject on which legislation can be had.” According to Roberts, this “test is really not much of a test” because it doesn’t impose significant limits on congressional investigations of the president.
Roberts isn’t wrong that the test laid out in Letter’s brief is very permissive of congressional investigations. But it’s not like Letter just made that test up. The idea that Congress may conduct any investigation that concerns “a subject on which legislation can be had” was endorsed by many prior Supreme Court decisions over the course of many decades.
Roberts’s disdain for this longstanding standard was echoed by several of his colleagues. Justice Neil Gorsuch dismissed it as “limitless.” Justice Brett Kavanaugh worried that it would permit congress to declare “open season” on presidents. And Letter was unable to offer a new limit on congressional investigations that would satisfy these justices.
Meanwhile, Justice Samuel Alito repeatedly accused the House of issuing these subpoenas to harass the president — a fact that is irrelevant under Barenblatt’s holding that “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
Even Justice Stephen Breyer, a Clinton appointee, appeared to lose confidence in Letter’s arguments. Shortly before those torturous arguments came to an end, Breyer said that he’s concerned that the House is seeking “a lot of information and some of it is pretty vague,” and that the task of sorting through these requests and figuring out what information is being turned over could prove too much of a distraction.
Note: The lawyers kept coming back to Justice Breyer’s concurrence in Clinton v. Jones, in which he argued (excerpts):
I agree with the majority that [prior] precedents reject any absolute Presidential immunity from all court process. But they do not cast doubt upon Justice Story’s basic conclusion that “in civil cases,” a sitting President “possess[es] an official inviolability” as necessary to permit him to “perform” the duties of his office without “obstruction or impediment.”
I concede the possibility that district courts, supervised by the Courts of Appeals and perhaps this Court, might prove able to manage private civil damage actions against sitting Presidents without significantly interfering with the discharge of Presidential duties–at least if they manage those actions with the constitutional problem in mind. Nonetheless, predicting the future is difficult, and I am skeptical. Should the majority’s optimism turn out to be misplaced, then, in my view, courts will have to develop administrative rules applicable to such cases (including postponement rules of the sort at issue in this case) in order to implement the basic constitutional directive.
It would be hard to sugarcoat this: It was a disaster for Letter and the House. Letter began his argument with a wealth of precedents that clearly support his client’s position, and he appeared completely unprepared for a Court that just does not believe that existing law should apply to President Trump.
With great power comes great immunity
A majority of the justices appeared very sympathetic to an argument, pushed by Trump’s Justice Department, that the president is special and should enjoy special immunity. “The President occupies a unique position in the constitutional scheme,” Trump’s solicitor general argued in his brief, and thus the president must enjoy “immunity from any process that would risk impairing the independence of his office or interfering with the performance of its functions.”
Such immunity is a precious thing indeed, as the Court has historically allowed Congress to conduct investigations that truly did appear to be motivated entirely by political animus.
* * *
[T]he Supreme Court upheld this subpoena in Eastland, and it warned future judges against going “beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province.” So long as a subpoena “may fairly be deemed” to support a legislative investigation, the courts may not second-guess that subpoena.
Perhaps Eastland was wrongly decided. Perhaps men like James Eastland should not have this power to harass political enemies into oblivion. But that was emphatically not the posture that the Supreme Court appeared to adopt in the Mazars and Deutsche Bank arguments.
Rather, the Court’s primary concern seemed to be that the most powerful man in the world — the president of the United States — must be given extraordinary immunity from an investigation that could potentially reveal corruption or worse.
The Court probably won’t shut down investigations of the president altogether
It should be said that, while the Court appears likely to give Trump special immunity from investigations, it is still unlikely that he will be given total immunity. Justice Kavanaugh, for example, suggested that a congressional investigation could still go forward if the information sought was “demonstrably critical” to a broader investigation of whether a particular bill is necessary.
Similarly, in Vance, the Court appeared unmoved by Trump’s argument that he should be completely immune from any criminal investigation while in office. Instead, several of the justices appeared to believe that an investigation could move forward, but only if the prosecutor could show that there was a solid basis to believe that the investigation would uncover evidence of wrongdoing — and potentially that there was no other way to obtain relevant evidence, and that this evidence could be lost if the investigation didn’t move forward right away.
It is unlikely, in other words, that the Supreme Court will toss out either the House’s subpoenas or the grand jury subpoenas in Vance altogether. But it is very likely that the Court will announce that the president enjoys special protections against investigations, and then send the cases back down to a lower court to determine if those protections can be overcome in these cases.
That means months, or even years, of additional litigation before these cases are resolved. Enough to push any final resolution past the November election. And enough to ensure that voters will go to the polls without knowing what evidence might have been revealed if the Supreme Court applied the same law to Trump that it applies to anyone else.
Mark Joseph Stern at Slate has a very similar analysis, worth the read, and comes to the same conclusion, The Supreme Court May Trust Trump More Than Congress:
There is irony in the fact that SCOTUS is so skeptical of Congress’ integrity when it is the president who is accused of committing crimes. These subpoenas present an existential threat to Trump’s presidency: They could reveal that he committed egregious fraud and financial misconduct, as his former associates have alleged. That, presumably, is why Trump is so desperate to keep them secret. If the House obtains proof of wrongdoing and presents it to the public, it could tank Trump’s reelection chances. If SCOTUS lets Trump conceal that evidence, Trump can continue to insist that he is perfectly innocent, framing these investigations as presidential harassment.
It is still possible that the House could win this case. Roberts might create his own rule, honoring these subpoenas while drawing a line in the sand for the future. He could dismiss the case as a political question outside the court’s reach (though that seems unlikely). Or he could establish a new standard for congressional subpoenas, then send the case back down to the lower courts to apply it. If Roberts has five votes for a punt, he could run down the clock on Trump’s presidency, ensuring that the House never gets its hands on his financial records. Without a clear command from SCOTUS, Trump will never let Mazars and Deutsche Bank turn over those papers. A muddled ruling will only help the president, giving him new reasons to stall. Unfortunately, Tuesday’s arguments brought the court no closer to clarity.