Sometime before June 29, 2020, the U.S. Supreme Court will either plunge the United States into the severest constitutional crisis of the Trump years—or save Americans from that crisis.
Three different committees of Congress, as well as New York State prosecutors, have issued subpoenas to President Donald Trump’s accountants and bankers for his tax and business records. Trump has sued to stop the accountants and bankers from complying. He has lost twice at the district-court level and twice at the appeals-court level. Now he is looking to the conservative majority on the Supreme Court to rescue him.
On March 31, the court will hear oral arguments in the cases of Trump v. Mazars and Trump v. Deutsche Bank. The decision will be rendered sometime between then and the court’s summer break.
Although Trump is suing his accountants and his bankers as a private citizen, his case has been joined by the Department of Justice. Solicitor General Noel Francisco has signed an amicus brief on behalf of the United States. It is an astonishing document. It invites the Supreme Court to junk two centuries of precedent—and to substitute an entirely new system of judicial review of congressional subpoenas that involve a president.
A legislative subpoena must therefore satisfy heightened requirements when it seeks information from the President. At the threshold, the full chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legislative purpose. A congressional committee cannot evade these heightened requirements merely by directing the subpoena to third-party custodians, for such agents generally assume the rights and privileges of their principal, as this Court has recognized in analogous cases.
All the requirements in that above paragraph were devised for purposes of this litigation. None of them has ever been enforced—none of them has ever been imagined—in the previous 230 years of skirmishing between Congresses and presidents. Every must and should and cannot was invented in this very brief, for the immediate legal purposes of this president in this dilemma. The solicitor general might as well have said that subpoenas must be delivered by a sled pulled by flying reindeer, for all the connection between these demands and the previous constitutional history of the United States.
As the House of Representatives noted in the brief it filed, previous Congresses have obtained the bank records of Presidents Andrew Johnson and Jimmy Carter, and the tax records of President Richard Nixon. They have read the diaries of President Ronald Reagan and the law-firm billing records of first lady Hillary Clinton.
It’s never before been the law that a subpoena of the president must be authorized by “the full chamber,” much less that this authorization be “unequivocal”—whatever that means.
It’s never before been the law that the president’s privileges—whatever they are—also extend to his private business agents.
It’s never before been the law that the courts set themselves over Congress as scrutinizers of its subpoenas, approving or disapproving. Until now, instead, courts have always extended the utmost deference to congressional investigations, from the first Washington administration onward.
The Trump administration cannot cite case law for any of its new demands. It quotes few cases, very briefly and tangentially, and strikingly often with ellipses in the middle of the quote. Instead, it bases its argument on its own vision of the awesome and unassailable power of the presidency. “The President faces a unique risk of harassment in response to his official policies or actions,” his lawyers argue. To heighten that risk, they quote the 1952 case involving President Harry Truman’s seizure of steel plants during the Korean War: “In drama, magnitude and finality [the president’s] decisions so far overshadow any others that almost alone he fills the public eye and ear.” They continue, this time quoting the Supreme Court’s language in the Paula Jones lawsuit against President Clinton: “Likewise, the President ‘occupies a unique office with powers and responsibilities so vast and important that the public interest demands he devote his attention to his public duties.’”
The history-minded reader will recall that Truman lost the steel-seizure case, and that Clinton likewise lost his fight to be immune from civil liability for sexual harassment. Oftentimes, such effusive compliments to the office of the presidency in the language of a Supreme Court decision serve as consolation prizes for some rebuffed claim of presidential power. But Trump’s Department of Justice deploys the compliments as if they constituted the law itself, not the wrapping paper around the law.
The House brief hits back with actual precedents from pertinent law—and this bottom line: “In more than twenty cases concerning the scope of Congress’ power to investigate, this Court has only once held that a Congressional inquiry exceeded its constitutional limits.” That case—Kilbourn v. Thompson—dated from 1880 and dealt with the aftermath of the bankruptcy of a big bond house, J. Cooke and Sons. And even that case was effectively overruled in 1962. “At most,” the Supreme Court said, “Kilbourn is authority for the proposition that Congress cannot constitutionally inquire ‘into the private affairs of individuals who hold no office under the government’ when the investigation ‘could result in no valid legislation on the subject to which the inquiry referred.’” But otherwise, as the Supreme Court held in 1951, for a court “to find that a committee’s investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested” elsewhere.
All told, the record supports the dry opening of the House brief: “Many momentous separation-of-powers disputes have come before this Court,” it reads. “This dispute, regarding four document subpoenas to third parties for records not covered by any privilege, is not one of them.” The only thing remarkable about the Mazars and Deutsche Bank cases, the House adds, “is the extraordinary breadth of the arguments that President Trump and the Solicitor General make about the supposed power of a President to thwart investigations in furtherance of Congress’s Article I legislative and oversight functions.”
By all rights, these cases should end in the kind of defeat for Trump nicely described by a favorite joke of Chief Justice John Roberts. When asked how a certain case could have been decided against a petitioner 9–0, Roberts is said to have replied: “You must remember, there are only nine justices on the Supreme Court.”
But this is the Trump era. The courts are partisan and getting more so. Although Trump lost every previous round of this litigation, one appellate judge did agree with him on the merits: his own appointee to the D.C. Circuit, Neomi Rao.
In her dissent from the majority opinion against Trump, Rao advanced an arresting new claim: “When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose … Allegations that an impeachable official acted unlawfully must be pursued through impeachment … [and] cannot be investigated by Congress except through impeachment.”
This is wild talk that would shut down almost all congressional investigations. It asks that Congress decide whether an act was unlawful before it begins its investigation of that act. It’s an argument that cannot be applied in real life—and is probably not meant to be applied in real life beyond this one and only application: shutting down an unwanted investigation of President Trump.
Plainly, there is something in those documents that Trump dreads letting the world see. We now seem on track to one of three possible outcomes of this dispute.
The first is that precedent and law prevail. Trump loses his lawsuit against his accountants and bankers, and the subpoenaed documents are surrendered to Congress.
The second is that the political imperative to save Trump that swayed Rao will sway the conservative justices on the Supreme Court—and that Trump’s secrets will be protected by a 5–4 decision.
The third is that Trump loses—but continues to devise new delays to thwart the subpoenas and defy not only Congress but also the courts.
Every one of these possible outcomes leads to explosive controversy in the summer before the 2020 election.
In the first case, we are surely plunged into a screaming hurricane of Trump scandals.
In the second, the legitimacy of the Supreme Court will be called into doubt in a way not seen in decades, if ever.
And in the third, we confront a full-blown crisis of the rule of law.
Under all three scenarios, the issues raised by impeachment in early 2020 come roaring back for the election finale. Trump’s evident corruption, the questions over his thralldom to the Putin regime in Russia, the refusal of the Republican Party to uphold law when inconvenient to Trump—you thought we’d talked them to death during impeachment? There is so much more to come.