Courthouse Steps Oral Argument: Trump v. Mazars USA and Trump v. Vance

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Three cases before the Supreme Court consider the ability of grand juries and congressional committees to subpoena the personal tax records of the President. In Trump v. Mazars USA and Trump v. Deutsche Bank, three House committees subpoenaed the President’s tax records. In Trump v. Vance, a local grand jury has subpoenaed these tax documents as well. There are several issues at play in determining if these subpoenas are valid. 

Starting with the Congressional subpoenas, the President claims that these subpoenas are for information protected under the Right to Financial Privacy Act, which prohibits disclosure of a customer's financial records to "any Government authority" without certain procedures the committees concede they did not follow; but the committees claim that they are not a “Government authority” under the meaning of the Act. Secondly, the President claims the Internal Revenue Code, which allows disclosure but only with procedural requirements the committees admit that they have not done. But the committees claim this requirement only applies if the bank acquired the tax documents from the IRS. Third, the President claims there is no legitimate legislative purpose to the subpoena which is required for such a legislative subpoena. The committees note that although that requirement exists, the scope of what is within a proper legislative purpose is very broad and met in this case.

The Supreme Court has also asked the parties to brief whether these congressional subpoenas are the kind of dispute between the branches that the court should avoid.

As to the local New York grand jury subpoena, the President claims that he is absolutely immune from all stages of state criminal process while in office, including pre-indictment investigation.

Devin Watkins of the Competitive Enterprise Institute will join us to discuss the results of the Supreme Court oral argument on these cases. 


Mr. Devin Watkins, Attorney, Competitive Enterprise Institute


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Event Transcript



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Greg Walsh:  Welcome to The Federalist Society’s Teleforum conference call. This afternoon’s topic is titled, “Courthouse Steps Oral Argument: Trump v. Mazars USA and Trump v. Vance.” My name is Greg Walsh, and I’m Assistant Director of Practice Groups at The Federalist Society.


As always, please note that all expressions of opinion are those of the expert on today’s call.


Today we are fortunate to have with us Mr. Devin Watkins, an attorney at the Competitive Enterprise Institute. He previously worked at Cato as a legal associate and interned at the Institute for Justice. At the Cato Institute, Watkins worked on a variety of Supreme Court cases, and one of the briefs he worked on was cited by The Court. His op-eds have appeared in National Review, The Hill, Time, and The Federalist among others. After our speaker gives his opening remarks, we will go to Q&A. Thank you for sharing with us today. Mr. Watkins, the floor is yours.


Devin Watkins:  I’m glad to be here. In talking about the oral arguments, I want to start with one thing. I’m not a mind reader. I don’t know how the justices will decide the case. That said, the questions of the justices sometimes provide clues as how they’re likely to vote or what direction they tend to be heading. Sometimes we think they’re going one way and they end up going another way. Nothing that was said today—they could have been acting, for instance, as devil’s advocate and arguing something that they even themselves don’t believe. We don’t know for certain how the Court is going to go till we see the final decision.


      The cases today dealt with the financial records of President Trump. Most importantly his tax returns, but there were a lot of other financial records related to his businesses and a variety of other financial records other than just the tax returns, although that was, obviously, a very critical element. I’m going to start with the cases that were first on the docket, which is the congressional subpoenas. These are subpoenas that were issued by three committees at the House of Representatives against President Trump for his financial records.


As you may know, a variety of previous Presidents distributed their tax returns, but President Trump had not. There were a variety of people in the House of Representatives that wanted access to those, and they subpoenaed them. The key question that comes before the Court is, is there a legitimate legislative purpose for this? The House of Representatives, in the text of the Constitution, doesn’t actually say anywhere that they have the power to subpoena anything. That power has been implied from the other powers of Congress. To be able to do that, there has to be some type of legitimate legislative purpose.


      The right wing of the Court tended to focus primarily on these balance of power issues at stake. What is the source of this [Audio cuts out 03:10] congressional subpoena power? What are its limits? Especially because it doesn’t appear directly in the text of the Constitution, these limits also must be implied if this power exists. The left wing of the Court didn’t focus as much on the direct questions like that, but more on the history. There’s a lot of history of subpoenas by various House committees and it’s very, very broad. They focused on the Paula Jones case, the Whitewater case, and the subpoenas that were issued for various Hillary Clinton private records. In these cases, they weren’t actually challenged. A lot of times the Congress would submit the subpoena to the President or someone else, and then they would enter into negotiations on exactly how much to give. President says, “We’re not going to give you everything you want, but we’ll give you something.” and Congress says, “Okay. That’s good enough.” and they’re given the records.


      The question first is how much does this historical precedent actually provide some type of precedent as to constitutional powers and limits of Congress? Is everything that was provided voluntarily was something that Congress could have subpoenaed and got it anyway, or was it something that perhaps Congress couldn’t have done, but the President decided to give it to them anyway? It’s very tricky there. The left wing of the Court was very focused on the history of all of these subpoenas and the records being provided even of the President or people high up in the administration.


      The next question dealt with personal records or official records. Everybody acknowledges that the Congress has to understand the operations of government to be able to legislate properly. That has one thing that is done quite often when the subpoenas are issued. For personal records like this, the question is what is that standard? Is it the same as the official standard? Is it higher, or is it lower? The left wing of the Court suggested that there should be a lower standard than for official records because official records implicate the core operations of very important functions of government. These personal records don’t have those implications.


      The next question had to do with what’s sometimes referred to as the Nixon Standard; a heightened inquiry. The Court had gone and considered the subpoena to Nixon, and so obviously, a subpoena issued to the President was going to be very important to deciding these subpoenas that were issued to the President. There was a lot of differences though, between the Nixon Standard and these standards. One of the most important differences is that Nixon had raised a claim of executive privilege.


      This is the privilege that extends between the President and his closest advisors about closely held discussions as what the President should do. When those advisors are advising the President, there is a very important protection there that those be kept somewhat secret so that the people advising the President feel free to give their candid advice rather than advice that they may not want to give if were publicly revealed later. In the case of Nixon, the Court had held that there a heightened inquiry. Is it really needed? Is there some other way to get these records? There has to be something more than just the normal subpoena amount.


The question is is that because it was the President being submitted the subpoena, or is it because he had raised the idea that this was protected by executive privilege? The left wing of the Court emphasized the executive privilege findings very strongly. I’ve been focusing primarily on the questioning of the government’s counsel. They were the first ones to come up. Then the committee’s lawyer came up to try to defend these subpoenas. Probably the biggest question, the most important question in my mind that was submitted to the committee’s attorney, was by the Chief Justice. This was whether he can give any example of a subpoena that would be invalid because there was no legitimate legislative purpose.


The Chief Justice was basically asking for the limiting principle. How far can you go and no further? The committee’s lawyer could not come up with a single example; could not say any kind of subpoena that wouldn’t potentially lead to legislation or be a legitimate legislative purpose. This becomes a much, much worse as you go on when you see a lot of the other justices continue to reiterate this point because if the only limitation on the subpoena power was this legitimate legislative purpose, and any subpoena would meet that standard, it really wasn’t a limitation at all.


That was probably the biggest point. I’ve got to say, personally, I came into this rather split. I didn’t know which side would win. There’s a lot of history. The left wing of the Court was pointing to it where a lot of previous subpoenas by Congress was issued to Presidents or other people and the Court gave very broad latitude to congressional subpoenas. The legitimate legislative purpose was very broad, and it was hard to see anything that would be limited to it. When you actually see the committee’s attorney come up and say that basically any subpoena could be valid if the committee wanted to investigate that, it seemed like there was a lot of push back to that idea even by some of the left wing of the Court which suggested that may be going too far.


      Thomas, of course, suggested that the subpoena power might not exist at all. It isn’t mentioned anywhere in the Constitution, so why does the committees have any power at all? I wouldn’t be surprised to see either dissent or concurrence, by Thomas that suggests that there isn’t such a power. He probably isn’t going to have anyone else. He might get Gorsuch to join him, but probably no one else. At the moment it looked like all of the right wing of the Court seemed to be supporting the President, and the left wing of the Court is probably opposed to the President on this issue. I’m suspecting that it will probably be 5-4 in that way. It’s hard to know. One of the justices could change their mind, or I could be reading a little bit too much into their questions.


      Now I’d like to go on to the second case here; Trump v. Vance. Both of these cases concern the financial records of the President, including his tax returns. Trump v. Vance dealt with a local grand jury subpoena rather than a congressional subpoena. It doesn’t have the legitimate legislative purpose requirement behind it, but instead has another requirement that it has to be relevant to these potential criminal investigations of various misconduct.


The President’s attorney, a personal attorney--there was actually two different attorneys. One representing the President personally, and then there was another attorney representing the United States by the Department of Justice. The President’s personal attorney put forward the argument that the President cannot be investigated, at all, for any criminal behavior, by any state or local attorney, while he’s in office. This was quite a stretch.


I’ve got to say I listened to the arguments before, when they were at the lower court, and I did not see them as very likely to have a lot of weight going forward, but they brought them up again before the Court. I didn’t see almost any of the justices that seemed to go along with that. Even Justice Thomas, which was the next to ask questions, asked, “Where does this immunity come from in the Constitution? It isn’t listed anywhere in the Constitution. What historical precedent for this immunity exists?” The attorney for the President talked about the letters being discussed among the Founders about how there could be hostile process against the President. To me, it seemed very weak on the arguments that were given.


Now, the DOJ argument was a lot more refined. They didn’t argue the blanket immunity that Trump’s personal attorney argued. They instead argued for a special need standard as to why the local or state prosecutor needed the information. They had to show something more than, “Yeah. Maybe there might be a crime in there. Let’s go dig through the financial records and see if we can find something.” They’ve got to do more than a fishing exercise. They’ve got to meet is there another way that they could get this information without subpoenaing the private records of the President? Is there some reason that they have to have it now rather than later after the President is out of office?


The interesting thing is that the New York attorney, he had a standard that was mostly similar to the DOJ’s standard, but he flipped the order. Rather than the DOJ’s standard, which basically said to the attorney, “You’re requesting this information. Okay. Give us why you need this information. Let the court consider that. Then we’ll move on to what the other privileges and other claims are.” The New York attorney says, “We submit the subpoena, and then it’s the President’s responsibility to come and say why that subpoena should be quashed. What is the Second Amendment interest that potentially harmed here?” Then the court is going to balance that Second Amendment—I’m sorry the Article II interest; the Article II interest that’s potentially harmed. Then the court can balance the interests in Article II against the interests of the local or state attorney to try to get the information, so that they can bring a potential case.


One of the other interesting or important aspects to this isn’t necessarily the prosecution of the President, either after he’s out of office or whenever, but the prosecution of other people that are closely associated with the President. For instance, imagine the President just talking with someone else on the phone or via email. This local or state attorney wants to prosecute, not the President, but that other person. Can the attorney go and get that email without going through all this rigmarole and heightened standard and stuff like that? Do they have to go to federal court to ask permission to get these just because they were talking with the President rather than the target of the investigation? I definitely see a lot of similarities, and I saw among the justices’ questions. Justice Gorsuch had asked what the differences are. He didn’t see almost any differences between the DOJ position and the New York position.


I suspect that the justices are probably going to pick something that’s kind of an amalgam of the DOJ position and the New York position. Maybe a little bit more towards one side or more towards the other side where it won’t be a blanket absolute immunity to any investigation of the President, but more some type of special standard; some type of heightened standard when they’re going to seek the records of the President. Maybe they’ll require that the President just say why there’s some harm to an Article II interest first. They will probably say that there’s got to be something more than just a fishing exercise into the President’s records.


That said, both DOJ and New York agree that this should be decided in federal court, not state court. That’s important because state courts are going to be more amenable to the local interests of that state and not the more federal interests of the entire United States.


The key problems from the New York point of view is the statute of limitations. If, as the President’s attorneys argued, there’s an absolute blanket immunity to any investigation at all, the statute of limitations might run before the President gets out of office, and they could investigate these things. That would lead to them never being prosecuted at all for the crime. That just doesn’t make any sense at all. There has to be some way that the statute of limitations is either tolled, which there’s not currently in law and statutes or in the Supreme Court’s precedent, but perhaps they might add some type of tolling provision to the statute of limitations. I’m not sure about that yet. It was suggested by several of the justices’ questions, but we don’t know yet if they’re going to actually think about adding that or not.


Even if there is or isn’t a statute of limitations problem, it seems likely that the Court is going to say that there can be investigations of the President or people closely associated with the President at the local level with the protections that the grand jury provisions apply. That means that there would be protections that would prevent this information even though it was given to the grand jury and the local prosecutor, from then being distributed to the public.


Those are kind of my initial thoughts for how the oral arguments went today and how I see the cases likely to be going.


Greg Walsh:  We’ll now go to the first question.


Danny Ogden:  Thanks. This is Danny Ogden in Waco, Texas. I thought one of Justice Breyer’s questions was quite interesting when he brought up, in a future case perhaps you might have Senator Joe McCarthy -- I can’t remember the exact words, but something about subpoena, something about Franklin Roosevelt. I thought that really as quite telling as to the skepticism of Breyer as to the House subpoena. I’d just like your comments on that, please.


Devin Watkins:   Yeah. There seemed to be a lot of discussion and [Audio cuts out 18:05] here among the justices that these subpoenas [Audio cuts out 18:12] used for harassment and in other ways trying to undermine the presidency. There was a lot of fear that if they set too low a standard for what subpoenas could be issued that that would be a problem. I hope that answered your question.


Greg Walsh:  Thank you. We’ll now go to the next question.




Danny Ogden:  [Inaudible 18:31]


Mike Stern:  Hey. This is Mike Stern in Virginia. Thank you, Devin, for that summary. I think it was an excellent description of the cases. My question is, There is currently pending in the D.C. Circuit en banc, the McGahn case which revolves around whether the House has standing to sue the former White House counsel to make him testify. Do you think the arguments today will have any bearing on that? Do you think the D.C. Circuit it likely to wait to see how the Court comes down, or do you think it won’t have any effect?


Devin Watkins:  I wouldn’t be surprised if the D.C. Circuit waits [Audio cuts out 19:21] have the Supreme [Audio cuts out18:23] They don’t want to get this decided and then maybe there’s some small difference in the change in the Supreme Court opinion that invalidates one piece of their opinion, and they have to redo it again. My guess is they’re going to wait and see. It probably isn’t going to have a huge impact on that case. That said, I wouldn’t be surprised if there’s some pretty strong limits to the subpoena power of Congress. I don't know if these are going to be generalized though. They may be very specific limitations when the Congress is trying to subpoena presidential records. They may not be generalizable even to close advisors like [Audio cuts out 20:07].


Greg Walsh:  We’ll now go to a caller from D.C.  


Caller Three:  Yes. I listened to the argument also, and just to run a thought by you. I sensed bipartisan concern with the issue of the burden. Breyer raised that in particular on the left side. Several on the right side raised it, and I can see the Court sort of adopting the absolutist position of Jay Seculow—which I think was a bad argument, by the way, a bad argument to raise— couching it with a time frame. In other words, the burden is potentially so great on the President while he’s serving in office that unless there’s some special need to advance an investigation while the President is sitting that the investigation, when it involves presidential documents or presidential depositions or whatnot, must wait until the President leaves office given the following risks that -- and Breyer raised this that when documents are requested, even if they're private documents, the President has to spend time and make judgements as to what should be disclosed and confer with his lawyers about that when documents are disclosed. This was a question that I think Alito alluded to.


Once the investigation’s underway at the state level while the President is still sitting, that investigation has repercussions on the capacity of the President to perform his office even if the investigation is only on private matters. He cited the Clinton impeachment as an example of that. Do you think that the Clinton investigation had no lasting effect after the investigation was concluded? The counsel for the city tried to get around that. They did not.


The third example is that the production of documents wasn’t enabled -- [Inaudible 22:23] to the grand jury. A suggestion was made, I could almost hear the snicker on some sides of the bench, that the competency of those documents cannot be assured. We can also look at what the law says they will be leaked and used publicly for political purposes.


I can see—and I want your response to this—I can see a decision which says we won’t adopt an absolute standard that the President cannot be investigated while he’s sitting, but we will adopt a standard which says the investigation will be barred while the President is sitting unless you can make a compelling showing of the need for that investigation and a compelling showing that the investigation will not intrude upon the President’s capacity to perform his job, either at the time of the investigation or thereafter while he’s sitting in office, and unless you can show, Mr. State Prosecutor, that the production of documents will not, under any circumstances, be made public for any purpose.


Devin Watkins:  The question of burden is obviously very important. I’ll deal with that and then I’ll get to the second question there. The question of burden, I think, was pretty broadly understood as potentially [Audio cuts out 23:45]. The New York attorney liked to say, “Yeah. We didn’t subpoena the President. We only subpoenaed third-party person, and therefore, there was no actual burden on the President.” That was rather absurd, and I think a lot of the justices realized that from the questioning. Even Justice Breyer seemed to realize that there is actually a burden on the President. These are his records. He has to go into court. He has to talk to his attorney. One of the lawyers for the President was like, “What am I supposed to do as the attorney to the President? Go and talk to him and say, ‘I need to go talk to you for three or four hours about these documents. You’re just going to have to stop your day in dealing with the coronavirus and everything else that’s going on to go deal with that.’”


I think it was pretty obvious that there was at least some burden on the President. Now, the question is, how much of a burden. Is the Court going to say that this burden is possibly too much to stop these subpoenas? I think the Court is going to acknowledge that it may get too far. It may get too burdensome, and the Court may have to stop in, but I’m not sure that this case in particular is going to reach that case. I doubt the Supreme Court is going to say either way in this. I just think they’re going to remand back to the lower courts to deal with the burden issues and some of the other stuff once they define the standards.


More likely, I think, they’re going to say, “This probably doesn’t meet that standard,” but it’s hard to say. There’s obviously people on the right wing of the Court that saw this a very strong burdensome. People on the left wing of the Court that saw this as very little burdensome, not that big of a problem. It was fairly widely acknowledged that there’s at least some burden imposed and that if there were a tremendous number of subpoenas issued by a lot of different prosecutors and a lot of different situational subpoenas and a lot of other stuff, that these kind of things could add up to being too much and really interfere with the President’s ability to conduct his office.


I think that was something that was very clear and was very much on the mind of all the justices. Even some of the left wing of the Court realized and acknowledged that these are potential burdens that the Court has to watch out for. The question is is this going to be more of a per se thing? There’s probably a few people, especially Alito, that’s seemed to really push hard for this to be more of a per se, too burdensome, we’ve got to stop this while the President’s in office. The left wing of the Court, obviously, was totally opposite. “No. This is fine. The courts will just balance this and move forward.” They saw this as that they could -- it’s hard to say exactly where the Court is going to end up. I doubt it’s going to be a per se rule, but no doubt that will be a huge part of whatever tests that the Court comes out with in the end.


      There was a second part to your question besides burden, but I’m not remembering it at the moment. Let me think. I’m sorry.


Greg Walsh:  Caller, if you’d like to ask that second question again. Devin, do you happen to have predictions on the eventual ruling on any of these cases? I know at the outset you said that you don’t have a crystal ball, but you must have perceptions.


Devin Watkins:  Sure. I suspect that the congressional ruling is probably going to be 5-4 against the committee. They’re probably not going to say, “No. [Inaudible 27:14] you can’t ever subpoena the presidential records.” But they’re going to raise the bar a bit. They’re going to say, “In this particular case you didn’t lay out enough of a standard of why this meets the legislative purpose.” And they’re going to send it back to lower court on that basis. The four on the left wing of the Court are going to dissent to that. I think Thomas is going to have a concurrence and probably say that the legislative subpoena power doesn’t exist.


On the other case, I think it’s probably going to be unanimous that the President has no absolute immunity from any criminal investigation while in office. I think that probably is [Audio cuts out 27:56] the Court. That said, the Court will probably try to get a standard fairly close to what the DOJ is saying, but with some substantial caveats. I wouldn’t be surprised if that opinion was unanimous in the end.


Greg Walsh:  Caller from 703, you’re on the line.


Caller 4:  I am. Sorry about that. I listened to the oral arguments, but I have not read the briefs and I thought that the advocate for the House of Representatives did a very poor job of explaining why the House of Representatives wanted these records. I was wondering was that just a failure of oral advocacy and the briefs made it more clear? What was the reason why the House was asking for these?


Devin Watkins:  It’s hard to know. If I was the attorney for the House of Representatives, I could have devised a very clear limiting principle, explained why these subpoenas are well within the legislative purpose, and I don’t think it would have been all that difficult. The question of why they didn’t do that is a more difficult question, I think. It may just be the attorney for the House of Representatives, they felt that they didn’t want to limit the House of Representative’s subpoena power in any way. Anything that they concede would be a limitation on the power of the House of Representatives. As their attorney, they felt that they didn’t want to make any of those concessions. I think it substantially weakened their case, by basically saying that the standard that I am proposing has no limits. Any time you’re doing that before the Court, it’s a really bad idea.


Greg Walsh:  We’ll now go to our next caller.


Ken Konop:  Hello. My name is Ken Konop, and I’m in Michigan. I have really a couple of questions, maybe three. The first question is, obviously, I have not seen the subpoena, but I do enough litigation to understand that once you have a tax return which is—I don't know if you guys are tax guys—called a 1040. The 1040 gathers information frequently, for people who have a lot of business interests, from other tax returns. The tax return, when you do the 1040, has a one-page form from another partnership or other entity. There could be --I don't know anything about President Trump’s taxes, obviously, but there could be dozens and dozens of other entities in which he has all or part of an interest.


Am I correct in assuming they could then subpoena all these other partnerships or LLC’s or whatever the heck he’s got if he has money out of a trust? Then can they also, in effect, audit it. They see a deduction for travel and expenses, so they could ask him for his MasterCard record and his phone records. They could ask him for—this is almost an endless audit of a return. I guess that’s the part I don’t -- just as a practical matter, I don’t really understand.


The second question is, I don’t understand criminal jurisdiction, but I think New York has jurisdiction over this because President Trump was, or is, whatever the heck he is, a New York resident. I assume a prosecutor in Kansas or in Michigan couldn’t start per se law proceedings against the President.


The third question, which I think you alluded to pretty clearly, and that is that a lot of this is obviously politically driven. I don't know if you can prove it or not, but wasn’t there some cases in California or someplace where the judge commented about what some comment President Trump made at some press conference, how much was that emphasized? Thank you very much.


Devin Watkins:  Let me deal with the first question. I’m sure the 1040 does talk about a lot of other entities associated with the President or the President owns or whatnot. The House of Representatives has already preempted you. They’ve already subpoenaed those records of the other organizations. They didn’t just subpoena the President’s personal records. They subpoenaed the Trump Organization’s records and a whole bunch of LLC’s and other entities that are closely associated with the President. So even if they didn’t get the tax records in particular, they subpoenaed those other entities’ records already. They’re definitely saying that they should have access to those records.


Let’s see, you asked about the criminal jurisdiction. Yes. In this case. It is the New York attorney. President Trump, he lived in New York. These entities, many of them are New York entities. This is why the New York attorney is investigating potential violations of New York law as related to either President Trump or these entities. That’s where the criminal jurisdiction comes from.


I did remember the other question that was given by the previous caller. This had to do with the revealing of these records. Officially, as grand jury records, they are prohibited from being disclosed publicly. There is always a fear that they might get leaked. There were some of the justices that questioned, “We might turn it over to you and then it shows up in the New York Times the next day.” It definitely appeared to be a risk. I think it was Alito that had questions about this. I think in the back of the mind, the justices understand that there is at least a risk that the information could get leaked, even if officially there’s an order not to. The New York attorney did everything he could to suggest that that doesn’t happen, that won’t happen. He isn’t aware of any grand jury information that got leaked like that in the past, and it won’t happen at all in this case. Some of the justices, I’m sure, believed him. Some of the justices, I’m sure, didn’t believe him. Some of the justices, I’m sure, aren’t sure. I’m sure that is in the back of their mind.


As it relates to the political nature of this, I think it was very clear to the justices that there is politics involved, but any time that the Court is dealing with different branches of government litigating against each other there’s usually politics involved. The Court doesn’t like to call that out too much if it doesn’t have to, and so it tends to be a lot in the background. I’m sure it’s in the mind of the justices. They know the political situation. The question they’re crafting isn’t really for Trump. Yes, Trump is the person it’s going to be directly decided about, but they’re trying to craft rules that are not going to be about Trump, but about future Presidents as well. When you consider the long term of any court decision, that can impact Republican administrations, Democrat administrations, all kinds of different stuff. It isn’t necessarily a pure politics thing. From the justices’ point of view, they have to decide this question for the next 30 years, and that’s very important. That makes it a lot less about the current political situation.


Greg Walsh:  Wow. I think that’s the first time anyone has ever answered four questions back to back to back to back to back. Congrats. We’ll now go to our next caller.


Caller 6:  Okay. Yes. I’m sorry I didn’t get a chance to watch the arguments this morning. I taped them, so I’ll watch them later. When we’re talking about congressional subpoenas, I worked in the Senate for several years, and I was general counsel on a committee. We did a lot of investigations. I believe there is a legitimate use to congressional subpoena power when it’s properly used. We did all sort of investigations like with the Takata airbags or the GM ignition interlock situation where there was ample evidence of a consumer protection issue. We subpoenaed companies for documents. And, yes, that’s a lot of hours going through documents, but there was a tighter tie. What did the House counsel articulate as their legislative need or the direct tie of evidence that this would fulfill it rather than be a fishing expedition?


Devin Watkins:  So [Audio cuts out 36:39] do a very good job of that. They could have done a lot better. That’s for sure, but there were a lot of different legislative purposes that were at least raised if not by the counsel, then by other justices. The biggest tended to be either—probably the most important was on disclosure. There are statutes right now that require certain disclosures of financial information of the President. Potentially, the legislature might be looking to amend those statutes; maybe to expand them or change them in some way. The idea is somehow by looking at the President’s financial information they can then realize what they should have been asked for in those statutes, and so they can move forward with those legislation that would amend them. That was probably the strongest case they put forward.


There was a few others around potential maybe conflict of interest cases. The left wing of the Court also seemed to make a very strong difference between the financial services subpoena which was very broad, about all kinds of records that the President and all kinds of different organizations associated with the President, and the intelligence committee subpoena which they said there’s a very legitimate purpose in trying to see what kind of foreign influence might impact the President; and so those foreign relations impacts.


Now, even the President’s counsel and the DOJ counsel seemed to suggest that, if possible, that the intelligence committee subpoena might be valid, but they have to do a better job of explaining why and perhaps limiting it slightly, so that perhaps they only subpoena certain records with foreign individuals or things like that. For instance, in a situation like that, they would say, “Okay. That’s valid purpose. Go forward with that.” But they said that these were, one, very broad, they went back a very long time, and so they weren’t really connected to the legislative purpose that was being claimed. Secondly, that many of these didn’t even explain at all [Audio cuts out 38:57] considering possible legislation that might [Audio cuts out 39:02] which isn’t really enough to really go forward and say what exactly the legislative purpose was.


Greg Walsh:  Doesn’t look like we have any questions in the queue. Devin, is there anything you’d like to say before we wrap up?


Devin Watkins:  Let’s see. I suspect that the first one, the congressional subpoenas, is going to be highly contested, but if, as I suspect, the second one is the unanimous decision, hopefully, people can see at least a little bit of unity on the Court and moving forward on things like that.


Greg Walsh:  Absolutely. On behalf of The Federalist Society, I want to thank our speaker for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.




Dean Reuter:   Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at