The Supreme Court Case That Could Destroy the Balance of Powers

By accepting Trump’s argument for keeping his finances secret, the Court could strip Congress of its ability to hold this, or any, president to account.

An illustration of shredded paper with Donald Trump's signature on top.
The Atlantic

About the author: Quinta Jurecic is a contributing writer at The Atlantic, a senior editor at Lawfare, and a fellow at the Brookings Institution.

In 1922, the United States Senate launched an investigation into what would become the most infamous story of executive-branch corruption in American history until Watergate. Teapot Dome, as the scandal came to be known, involved secret deals given out by Warren Harding’s administration for access to oil reserves in Wyoming and California. Not one but two special prosecutors were appointed to investigate alongside Congress.

The scandal led, among other things, to the laws governing tax disclosures that have allowed the present Congress to press—so far unsuccessfully—for access to President Donald Trump’s tax returns. It also established Congress’s power to investigate more generally. When senators grew suspicious of Attorney General Harry Daugherty’s failure to prosecute the Cabinet officials and oil executives at the center of the scandal, they demanded testimony from witnesses in order to obtain what they described as “information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper.”

The battle escalated to the Supreme Court, which found that the Senate had been within its rights to issue subpoenas even though the Constitution granted no explicit investigatory power to Congress. Witness testimony, the Court wrote, would help the Senate determine whether the Justice Department had been properly governed and whether action by Congress was necessary to prevent mismanagement in the future. As the justices put it, “The power of inquiry … is an essential and appropriate auxiliary to the legislative function.”

Now, almost a century later, Trump is asking the Supreme Court to gut that congressional power of inquiry. In April 2019, Congress subpoenaed financial documents from two banks that have provided services to Trump and his businesses, Deutsche Bank and Capital One, as well as from Trump’s accounting firm, Mazars. The president quickly sued to prevent those institutions from handing over the documents. Tomorrow the Supreme Court will hear oral arguments—via the phone, thanks to the pandemic—in both Trump v. Deutsche Bank AG and Trump v. Mazars USA, LLP. The Court will also consider the president’s parallel effort to block Manhattan District Attorney Cyrus Vance from acquiring similar information from Mazars in the course of a state-level criminal investigation.

In the short term, the litigation raises the question of whether members of Congress—and voters—will have access to the details of Trump’s finances before the November election. But whether or not the public sees these documents, the cases have the potential to reshape the balance of power between Congress and the president, and the power of the presidency as a whole.

Trump’s finances are so convoluted and obscure that some reporters have developed full-time beats attempting to untangle them. He refused to release his tax returns during his 2016 campaign or to divest from his businesses once he ascended to the presidency. Those aspects of his finances that have become public are, to put it mildly, strange. The New York Times, which obtained 10 years of the president’s returns, wrote that annually from 1985 to 1994, “Mr. Trump appears to have lost more money than nearly any other individual American taxpayer.” ProPublica has reported on a string of Trump projects around the world linked to local government officials and power brokers, raising questions about how the president’s investments might shape his policy judgments. In The New Yorker, Adam Davidson examined an investment in Azerbaijan that seemed to have put the Trump Organization in business with a front for the Iranian Revolutionary Guard Corps—now designated by the Trump administration as a foreign terrorist organization.

To reveal what the president might be hiding, three House committees have asked for years’ worth of documents concerning Trump and his businesses. The committees have stated that they are studying both the president’s compliance with relevant law and the conflicts of interest that may arise from his financial involvement. Central to this question is Trump’s puzzling relationship with Deutsche Bank, which began lending the future president hundreds of millions of dollars in the late 1990s when every other bank had written him off as too risky. Since then, Deutsche Bank has become, in the words of the New York Times financial editor, David Enrich, “an international symbol of greed, recklessness, and hubris”—and its dealings with Trump, Enrich wrote, are “an object lesson in how the bank lost its way.”

The question of Trump’s finances has long served as a B plot of sorts to other presidential scandals. Special Counsel Robert Mueller looked into Trump’s efforts to finance a prospective Trump Tower Moscow. House Intelligence Committee Chairman Adam Schiff made the link between the Russia matter and his committee’s investigation into Deutsche Bank explicit when he stated that it was probing “the scope and scale of the Russian government’s operations to influence the U.S. political process.” The U.S. Court of Appeals for the Second Circuit pointed to that announcement as evidence that the congressional probes into Deutsche Bank are not a fishing expedition but legitimate oversight. “The Committees’ interests” in seeking the president’s financial information “concern national security and the integrity of elections,” the court wrote.

The Russia investigation and later the Ukraine impeachment scandal were testing grounds for Trump’s vision of the presidency as an office beyond any constraints imposed by Congress or criminal law. In both instances, he was successful: He has not faced any consequences for his obstruction of the Russia investigation as documented by Mueller. His acquittal in the impeachment trial, meanwhile, represented a tacit endorsement by Senate Republicans of his stonewalling tactics during the House impeachment investigation, during which he encouraged current and former officials not to testify and blocked agencies across the government from providing the House with documents. The Mazars and Deutsche Bank cases are the next phase of the battle over whether or not, as Trump put it, “I have the right to do whatever I want as president.”

The Supreme Court’s 1927 decision in the Teapot Dome case granted Congress a wide-ranging authority to investigate, but that authority is not unlimited. Congress cannot dig into private lives just to “expose for the sake of exposure,” as the Supreme Court ruled in a 1957 case rejecting an effort by the House Un-American Activities Committee to force a witness to provide information about former members of the Communist Party in the midst of the Red Scare. Nor can it try to play the role of law enforcement. But if lawmakers are looking into an issue that could lead to legislation, the courts have traditionally granted Congress a great deal of deference, even if an investigation might uncover criminal conduct. So far, at every stage of the Mazars and Deutsche Bank litigation, the courts have agreed that the House is within its authority in subpoenaing the records. “Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office,” wrote Judge Amit Mehta of Washington, D.C.’s federal district court. “This court is not prepared to roll back the tide of history.”

But rolling back the tide is exactly what Trump is asking the Supreme Court to do. His most audacious claim is that Congress simply cannot subpoena the president’s personal records in the first place, designating this material as beyond the reach of legislative power. Less bold, but still aggressive, is his argument that the subpoenas lack a “legitimate legislative purpose”—that the goal of Congress is not to build a record for possible legislation, but instead to embarrass the president and ferret out legal wrongdoing. The Supreme Court, he says, should set aside the public statements by congressional leadership explaining that the subpoenas are necessary to investigate Trump’s compliance with financial-disclosure obligations (as well as the emoluments clause of the Constitution), his possible conflicts of interest, the sufficiency of anti-money-laundering laws, and more. In Trump’s view, these are merely excuses for what he likes to call “presidential harassment.”

Perhaps Trump is right, and these high-minded statements really are just pretext. But the judiciary has long taken Congress at its word when it says that it has a legislative purpose, giving lawmakers room to cast their nets widely. Trump’s argument encourages the Supreme Court to examine Congress’s intentions more closely. The Justice Department, which filed its own brief before the Court (Trump is suing in a personal capacity), took a similar tack, suggesting that the particular constitutional issues raised by a congressional investigation of the president require, among other things, a “heightened standard” of scrutiny from the justices. As David Frum wrote in The Atlantic in March, these arguments rest on a “vision of the awesome and unassailable power of the presidency.”

“If the Court rules in Trump’s favor on the merits, it is hard to see how this would not have some detrimental effect on congressional investigatory authority,” Michael L. Stern, who formerly served as senior counsel to the House, told me. The idea that courts should dig for the true purpose of the subpoenas, as opposed to the typical standard of whether the investigation could result in legislation, is “particularly insidious,” Stern said. “If the Court endorses this approach, it will be opening up a whole new front for both the executive branch and private parties to resist congressional subpoenas.” This would be a blow to a legislature already reeling from Trump’s flat defiance of the House’s requests for information during the impeachment inquiry—and would come on the heels of the recent and devastating ruling by an appeals court that Congress cannot turn to the courts for help in forcing current or former government officials to testify. It would grant Trump—and future presidents—even more leeway in ignoring Congress’s attempts to hold the office accountable.

Trump’s aggressive view of presidential power is also on display in his effort to block Mazars from complying with Vance’s subpoena. The question of whether a state prosecutor can bring criminal charges against the president is genuinely tricky, and touches on many of the same issues that arose regarding presidential immunity from criminal prosecution following the release of the Mueller report. (The secrecy that protects grand-jury investigations means that what Vance is investigating is not clear, though reporting suggests that the probe may be linked to illicit payments made by Trump’s former lawyer Michael Cohen to the adult-film actor Stormy Daniels.) But it’s one thing to argue that presidents cannot be indicted while in office, and quite another to suggest, as Trump does, that they cannot even be investigated—to the extent that a state prosecutor’s subpoena to a third party would be barred. District Judge Victor Marrero, ruling against the president in October, wrote that Trump’s argument goes against “the fundamental notion that the president is not above the law.”

For those eager to get a look at the president’s financial documents, the outcome of Trump v. Vance might seem to be of less interest than the congressional-subpoena cases, because any material provided to Vance will be shielded from public view. But the institutional stakes are high in both cases. As with Trump v. Mazars and Trump v. Deutsche Bank, the Justice Department in Vance is playing the good cop to the bad cop of the president’s personal lawyers. The department has argued that state grand-jury subpoenas for the president’s records aren’t unconstitutional per se, but must show a “heightened standard of need.” Here, too, the Court could give presidents cover to dodge accountability while in office.

How will the Court rule? Chief Justice John Roberts is—as always—at the center of the drama. Roberts is an institutionalist, concerned with maintaining the legitimacy of the high court and shielding it as best as he can from accusations of partisanship. The Mazars and Deutsche Bank cases place him, once again, in the uncomfortable position of deciding whether to endorse an aggressive legal posture staked out by a president who insists on dragging the Court into the political fray. Further boxing Roberts in is the fact that every single lower court to have heard one of these cases has so far ruled against the president.

Roberts could try to duck the issue by ignoring the congressional-subpoena cases altogether. Stern argues that it’s uncertain whether the Court will allow Trump to insert himself between Congress and the financial institutions without pointing to a constitutional right that’s damaged by the subpoenas. This might allow a Supreme Court weary of controversy to simply drop the cases without deciding the underlying question, though it would leave the Vance case on the table. The Court has given some indication of interest in this option, asking Congress, Trump, and the solicitor general to weigh in on whether the litigation might be outside the scope of what the justices can decide—though all three parties argued in response that the Court has the power to resolve the questions at issue.

Another possibility, Josh Chafetz, a law professor who studies Congress, says, is that Roberts might rule in favor of Congress but pass the cases back down to the lower courts for further proceedings—to hash out the details of what information Mazars and the banks are compelled to hand over, for example. “The result,” Chafetz told me, would be “that nothing gets released until after the election,” but Roberts “will have ‘proven’ that the Court is not a partisan institution by ruling against a same-party president.”

The Supreme Court’s previous blockbuster cases concerning Trump—regarding the legitimacy of the travel ban and the administration’s effort to ask about the citizenship of respondents to the 2020 census—involved questions about the extent to which the judiciary should presume good faith on the part of an administration that routinely acts without it. In the Mazars and Deutsche Bank cases, the arguments presented by both Trump and the Justice Department question the good faith of Congress and state-level prosecutors. (What is really motivating Vance’s demands of Deutsche Bank, Trump’s lawyers insist, is that “he thought he could get away with it.”) The point of these investigations, they say, is to persecute the president. As it was during the Russia investigation, and during the impeachment proceedings, the core of Trump’s claim is: Everything I do is beyond questioning; everything you do deserves the closest scrutiny.