On July 9, 2020, the Supreme Court delivered its long-awaited opinions in two cases concerning efforts to obtain President Donald J. Trump’s tax returns and other confidential financial documents. In Trump v. Mazars USA, the Court considered the House of Representatives’ suits to compel third parties (banks Capital One and Deutsche Bank and accounting firm Mazars USA) to provide confidential documents they possess regarding the finances of President Trump, his children, and affiliated businesses. In Trump v. Vance, a grand jury under the direction of New York County District Attorney Cyrus Vance issued a criminal subpoena for financial records relating to the President and his businesses. This post discusses the Mazars decision and the impact it will have on the practice of congressional investigations.
Legally speaking, the Court declined to shut down the subpoenas by a 7-2 margin in both cases; in Mazars, a normal 7-2 split, and in Vance, a five-Justice majority opinion with two Justices (Justices Gorsuch and Kavanaugh) concurring. Justices Thomas and Alito dissented in both cases. But practically speaking, in the short term, the President’s political team might see both cases as victories, for the result of both decisions is likely that the documents at issue will not come to light, if at all, before the 2020 election. Political commentators have noted that both of the President’s Supreme Court appointees, Justices Gorsuch and Kavanaugh, joined the Court’s majority opinion in Mazars.
The Mazars decision has major implications for congressional investigations going forward. After Democrats gained control of the House of Representatives in the 2018 midterm elections, multiple House Committees initiated investigations into the President, ranging from his administration’s actions to his own personal dealings. In December 2019, the House even impeached the President, charging him with abuse of power and obstruction of Congress, though the Senate declined to convict.
The abuse of power charge related to allegations the President had threatened to withhold military aid to Ukraine unless that country investigated possible corruption of former Vice President Joe Biden and his son Hunter. The obstruction of Congress charge related to the President’s refusal to cooperate with the House’s attempt to prove the abuse of power charge.
The subpoenas at issue in Mazars, however, were unrelated to the impeachment effort. Instead, three House Committees (Financial Services, Oversight and Reform, and the Permanent Select Committee on Intelligence) issued the four subpoenas in question to, they argued, “guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U.S. elections.” For his part, the President argued that the subpoenas for his personal documents had no “legitimate legislative purpose” and that such subpoenas “violated the separation of powers.”
Chief Justice Roberts, along with six of his colleagues, charted a middle ground. The majority opinion highlighted the peculiarity of the fact that the Supreme Court was even hearing the case, noting that battles between Congress and the President over investigative subpoenas had been resolved through the political process “until the present dispute.” But, because this case involved third parties, the dispute differed from a regular request for personal papers of the President.
While the Chief Justice rejected the President’s (and Solicitor General’s) argument that the Court should apply a heightened standard from the Nixon era for the enforceability of the House’s subpoenas, he also disagreed with the House of Representatives’ assertion that the Court should treat this subpoena like any normal request for documents, without any regard for the fact that it was the President’s papers at issue.
To do this, Chief Justice Roberts claimed, the Court “would have to be blind” to the reality of the interbranch clash here. The House’s approach, the Chief Justice wrote, “fail[ed] to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information.”
To determine “whether a subpoena directed at the President’s personal information is related to, and in furtherance of, a legitimate task of the Congress,” the majority developed a four-factor test that balances “both the significant legislative interests of Congress and the unique position of the President.” With the caveat that “[o]ther considerations may be pertinent as well,” courts are to weigh at least the following four considerations in this and future such cases:
- “[W]hether the asserted legislative purpose warrants the significant step of involving the President and his papers.”
- Whether the subpoena is “no broader than reasonably necessary to support Congress’s legislative objective.”
- “[T]he nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.”
- “[T]he burdens imposed on the President by a subpoena.”
With this new test in place, the Court vacated the decisions of the lower courts and remanded the cases in light of the four factors now to be considered. The President and the House will now argue in the Courts of Appeals about how the test should come out with regard to these subpoenas. This is likely to take some time. The scope of Congress’s legislative interests will undoubtedly be a strong point of contention in this and future litigation, and some—like Judge Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit and Ilya Somin—have compellingly argued that the prevailing conception of those legislative interests is too broad.
Justice Alito dissented, noting that “legislative subpoenas for a President’s personal documents are inherently suspicious.” He would have applied a higher standard than did the majority, requiring the House to “provide a description of the type of legislation being considered,” “spell out its constitutional authority to enact the type of legislation that it is contemplating,” “justify the scope of the subpoenas in relation to the articulated legislative needs,” and “explain why the subpoenaed information, as opposed to information available from other sources, is needed.” Given the similarity between the majority’s test and the showing that this dissent would have mandated, it appears that Justice Alito’s difference with the majority was merely a matter of degree.
Justice Thomas also dissented. He took a view of Congress’s investigative authority that was narrower than that of both the majority and Justice Alito, writing that he “would hold that Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not.” Justice Thomas needled the majority for developing “a nonexhaustive four-factor test of uncertain origin.” To be sure, Justice Thomas has criticized what he calls “made-up” tests before. And while he conceded that “[t]he majority’s solution . . . is better than nothing,” this dissent stands as a strong denunciation of what Justice Thomas sees as an unduly expansive interpretation of congressional investigative power.
Although the Court did not apply the heightened standard that President Trump and the Solicitor General urged for congressional subpoenas of the President’s personal documents, the majority nonetheless established a potentially high bar for such inquiries. Now, Congress will have to jump through a few hoops to justify such a subpoena’s necessity, and the new test equips the lower courts with a framework for analyzing these document requests.
Say that a court decides that a given subpoena for personal presidential documents moves a legitimate legislative aim forward (which may itself be difficult to prove in some cases); it could still hold that said subpoena is too broad or that the presidential intrusion is simply unwarranted. And even if Congress satisfies the first three elements of the test, a court could conceivably find the subpoena is just too burdensome for the President. It remains to be seen how lower courts will apply the test, and how judges will interpret the Court’s “other considerations” language, particularly in future cases where the legislative interest seems less contrived.
The House and the President will continue to battle over these subpoenas. But it is entirely possible, and indeed likely, that this case is not resolved before the 2020 election. And in theory, if the GOP retakes the House and the President is re-elected, new Republican committee chairs could rescind these subpoenas and moot the issue before a final judgment. While the Mazars decision is not a total win for executive power hawks, it certainly is not what the House Democrats were hoping for. More importantly, in the long run, it may lead to more judicial and scholarly deliberation about what, exactly, are the limits of Congress’s power to investigate.