The Court Got the Trump Subpoena Cases Exactly Backward

Why is the Supreme Court giving more deference to a state grand jury than the Congress of the United States?

The Atlantic

On the last day of its 2019 term, the Supreme Court decided two cases about the degree to which President Donald Trump’s personal financial records are subject to subpoena by two different investigating bodies. In Trump v. Vance, the Court rejected the president’s claim that he is immune from state grand-jury subpoenas while in office, and even rejected the contention that such subpoenas must meet a higher standard than those issued to ordinary citizens.

Trump v. Mazars, by contrast, concerned subpoenas issued by several congressional committees. There, the Court likewise rejected the view advanced by President Trump, which would have applied the established test for executive-privilege cases even though the documents in question are not privileged. But the Court also said that these congressional subpoenas raise genuine separation-of-powers concerns, which the lower courts had not taken seriously enough. Thus the Court sent Mazars back to the lower courts for consideration under a new standard, one that offers the presidency more protection against congressional investigation.

Most of the commentary on these two cases has focused on who “won” or “lost,” and indeed, that is somewhat difficult to parse, particularly in Mazars. But while their practical effect on President Trump’s effort to keep his financial records secret is of the greatest immediate political concern, the two decisions are also interesting for what they say, taken together, about how the Court sees the different institutions involved, and the relationships among them. Evidently, in almost all of the justices’ view, it is far more appropriate, and raises far fewer concerns, for a state grand jury to investigate the president than for the United States Congress to do so. That outcome was largely expected, especially after counsel for the House of Representatives seemed to stumble at oral argument; indeed, a common prediction was that President Trump would lose Vance but win Mazars.

The Court’s view has this pecking order precisely backwards. There are genuine constitutional concerns when a state grand jury subpoenas a sitting president, even if the Vance opinion compellingly explains why those concerns do not preclude such investigations. Conversely, there is no meaningful concern when Congress investigates the president, even in his capacity as a private individual, and the Court was wrong to hold otherwise in Mazars.

Let’s start with Vance. The Court’s opinion opens with a long line of precedent—beginning with the treason trial of Aaron Burr in 1807, and reaffirmed during disputes in the Nixon and Clinton presidencies—establishing that the sitting president is amenable to subpoena in federal court. But as Justice Samuel Alito’s dissenting opinion explains, there are real differences when the subpoena comes from a state court instead. In 1819’s McCulloch v. Maryland, Chief Justice John Marshall famously held that states cannot impede, influence, or interfere with the operations of the federal government. (Specifically, McCulloch struck down a Maryland tax on the Bank of the United States.) As Justice Alito says, this principle of federal supremacy surely means that a state cannot prosecute the sitting president, let alone imprison him. That would prevent the president from carrying out his federal responsibilities, which McCulloch forbids. The federal courts have never had an opportunity to decide whether Justice Alito’s position is correct, but most constitutional scholars agree that a state cannot put the sitting president on trial.

The point is not that the Court got Vance wrong. To the contrary, the majority’s reasoning is convincing, and none of the specific arguments that President Trump’s lawyers advanced for why complying with subpoenas would interfere with his official duties holds water. Rather, the point is that Vance raised genuine, weighty constitutional concerns derived from the structure of the federal union. It’s not at all implausible or unreasonable to find a state-government-issued subpoena to a sitting president uniquely troubling, or to think that such subpoenas should be subject to a special rule. The issue in Vance is complex and difficult, exactly the kind of dispute that needs to be resolved by the Supreme Court, and that is just what the Court did.

Mazars, by contrast, should have been an easy win for Congress. But that’s not what happened. Rather, the Court held that a special rule does limit Congress’s ability to investigate the president. But where does this rule come from? Chief Justice John Roberts simply asserts that congressional subpoenas for presidential records raise “significant separation of powers concerns.” He seems to mean nothing more by this than that they involve a confrontation between Congress and the White House, which he would clearly rather not have his Court be dragged into. Hence the opening recitation of a lengthy history, this time dating back to 1792 in the Washington administration, to show that similar disputes have usually been settled through interbranch negotiation and compromise. This history informs Roberts’s refusal to accept that Congress has an essentially unlimited power to investigate the president, which, he notes, would mean that Congress could short-circuit the traditional negotiation process and simply win every time.

But what would be wrong with that? Confrontations between the branches are a routine, even inherent part of the American system of government. And when push comes to shove, one side or the other has the power to win those disputes. Moreover, each of the examples Roberts cites involved a claim of privilege, in one form or another, by the president. That history therefore demonstrates only that Congress has traditionally been sensitive to these privilege claims, and has even recognized that they do limit its investigatory power. But Mazars did not involve a claim of privilege. Why not, then, simply hold that, absent such a claim, Congress can investigate and subpoena the president to its heart’s content?

One answer has to do with how Mazars was framed. The earlier cases upholding congressional subpoenas to private parties established a rule that, as a necessary implication of its legislative power, Congress may use subpoenas to gather information on any subject “on which legislation could be had.” But, these cases teach us, Congress cannot use its subpoena power for law enforcement, which is the exclusive province of the executive and judicial branches. It cannot “expose for the sake of exposure.” Mindful of these precedents, the House of Representatives tried to justify all its subpoenas of Trump’s financial records as relevant to potential legislation. And although these arguments might satisfy the standard set by earlier cases, which is quite broad, the Court is not wrong to feel that this is a bit of a sham. Even if these records could theoretically inform potential legislation, the Democratic-controlled House of Representatives is plainly interested in them for the sake of exposure, to uncover President Trump’s misconduct and thereby hurt him politically.

But here’s the thing no one seems to realize: There is absolutely nothing wrong with this. What the Court should have said in Mazars is that the entire line of precedent limiting Congress’s subpoena power to informing legislation rather than law enforcement or exposure for exposure’s sake does not apply at all when Congress is investigating the president (or other major government officials). After all, Congress is the body uniquely charged with punishing the president for grave wrongdoing through the impeachment process. It should accordingly have far more power to investigate the president than to investigate an ordinary private citizen—and at least as much power to investigate the president as an individual state grand jury has.

Nor must Congress, as Justice Clarence Thomas’s dissent suggests (echoing Judge Neomi Rao’s dissent in the Court of Appeals), formally convene an impeachment inquiry in order to investigate presidential misconduct. The Constitution specifies nothing about the procedures leading up to a vote of impeachment in the House. And there is no reason why the House should not actively monitor the president’s conduct for possible impeachable offenses, rather than waiting passively for someone else to uncover the misconduct.

Even beyond the formal power of impeachment, the emphatic province and duty of Congress is to embarrass the president politically by bringing to light his misdeeds. That is one of the reasons we have a Congress. As James Madison said, “Ambition must be made to counteract ambition.” Part of the way the different branches check each other’s ambitions is by acting as political counterweights. The House Democrats’ political motive in embarrassing President Trump serves the American people by ensuring that no government official is able to hide truth from the public.

Instead of forthrightly defending this high prerogative of Congress, the House chose to go small, offering an unambitious and therefore unconvincing defense of only these particular subpoenas. Its reward was an opinion that ill-serves the republic. The Court rightly rejected President Trump’s claim to be effectively above the law, but it offered a twisted vision of which institutions ought to serve as law’s champion: a state grand jury that is literally powerless to indict the president while in office, yes; the United States Congress, first among the three co-equal branches of the federal government and the sole body with the power to hold a sitting president accountable, not so much.