Jurisprudence

The Supreme Court Is About to Decide Whether or Not to Place Donald Trump Above the Law

U.S. President Donald Trump speaks to U.S. Supreme Court Chief Justice John Roberts during the State of the Union address in the chamber of the U.S. House of Representatives on February 4, 2020.
The choice is his.
Mark Wilson/Getty Images

On Tuesday, the Supreme Court will hear telephonic oral argument in two blockbuster cases concerning President Donald Trump’s financial records. In one consolidated case, Trump v. Mazars and Trump v. Deutsche Bank, the court will consider whether Mazars, Deutsche Bank, and Capital One must turn over a variety of Trump’s financial records to three congressional committees, which subpoenaed the records to aid their consideration of a variety of possible pieces of legislation. In the other case, Trump v. Vance, the court will consider whether Mazars must comply with a New York state grand jury subpoena for Trump’s tax returns, which the grand jury is seeking as part of a criminal investigation into state campaign finance violations. The two cases raise different legal issues: The former concerns the breadth of Congress’ investigative powers, while the latter concerns the extent of the president’s immunity from criminal process. Yet they both concern legitimate fact-finding bodies’ attempts to investigate this president, and they raise the fundamental question of whether the president is above the law.

The first case the court will hear is Trump v. Mazars and Trump v. Deutsche Bank, which concerns a number of congressional subpoenas for Trump’s financial records. As I’ve previously written, the case implicates Congress’ power to investigate. The Supreme Court has previously held that, at minimum, Congress can investigate in any area on which it can pass legislation. Congress’ power to investigate encompasses “inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes” and includes “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”

Here, the House committees that issued the relevant subpoenas have plainly shown valid legislative purposes. First, the Oversight and Reform Committee subpoenaed Mazars, Trump’s accounting firm, for financial records and other documents relating to Trump and his businesses to help Congress decide whether to pass legislation related to presidential conflicts of interest or financial disclosures, including whether federal disclosure laws should be strengthened. Second, the Financial Services Committee subpoenaed financial records from Deutsche Bank and Capital One, two of Trump’s creditors, to investigate whether and how to strengthen federal banking laws, particularly with respect to lending practices and the prevention of money laundering and loan fraud. Third, the Intelligence Committee subpoenaed financial records from Deutsche Bank to further the committee’s investigation of Trump’s entanglements with foreign entities and whether and how to legislate to prevent future foreign interference.

In a surprising and last-minute order, the Supreme Court recently requested additional briefing from the parties concerning whether the court is prohibited from hearing the dispute because of the so-called political question doctrine, which says that the courts cannot resolve certain disputes between the political branches when it would be impossible for a court to fashion a judicially manageable standard to resolve the issue in the case.

The order was surprising in part because neither the parties nor any of the lower courts that have previously considered these cases so much as suggested that the political question doctrine barred judicial resolution of these disputes. And with good reason: The political question doctrine plainly does not apply here. As the court explained in an opinion by Chief Justice John Roberts in the 2012 case Zivotofsky v. Clinton, “the Judiciary has a responsibility to decide cases properly before it, even those it would gladly avoid.” Thus, in that case, the court said that it had the power to decide if a citizen’s “interpretation of [a] statute is correct, and whether the statute is constitutional,” because doing so was “a familiar judicial exercise.” That was so even though the case dealt with the politically sensitive issue of whether Jerusalem is the capital of Israel.

That decision applies squarely here. Mazars and Deutsche Bank simply require the court to determine whether congressional subpoenas are lawful under Congress’ long-standing constitutional power to investigate subjects on which legislation could be had. That is “a familiar judicial exercise” with manageable standards that the Supreme Court has applied to congressional subpoenas repeatedly in the past. Moreover, just because the cases require the court to resolve an interbranch dispute does not mean that it should avoid its “responsibility to decide cases properly before it.”

Unsurprisingly, in response to the court’s order, both Trump’s lawyers and the House committees agreed that the cases are justiciable. As Trump’s lawyers argued, holding that there is no judicially manageable standard for resolving this subpoena dispute could mean that “nobody—not even ordinary individuals, associations, and businesses—may judicially contest a congressional subpoena.” That holding would overturn centuries of precedent of the Supreme Court judging the propriety of congressional subpoenas. And as the House noted in its briefing, “these cases are justiciable,” which explains why “no party or amicus has questioned that the federal courts have an appropriate role in resolving them” before the Supreme Court or in the lower courts.

If the court were to disagree with both sides and shirk its responsibility to decide these cases, the result would be deeply troubling. While a holding that the political question doctrine applies would be a win for the House committees in these cases—the financial institutions have said they would have complied with the subpoenas but for the president’s lawsuit to stop them—it could significantly hamper Congress’ ability to investigate the executive branch. As I’ve written, there are a number of other cases currently pending in the lower courts regarding House efforts to enforce its subpoenas in federal court—from the case regarding former White House counsel Don McGahn’s testimony, to the case regarding secret portions of the Mueller report, to another case regarding Trump’s tax returns. A decision that the political question doctrine prevents the president from challenging the Mazars and Deutsche Bank subpoenas could mean that the courts could not review and enforce the subpoenas in these other cases as well, dealing a potentially serious blow to Congress’ ability to hold the executive branch accountable and make informed decisions about crafting laws. Thankfully, particularly given the parties’ agreement that the doctrine does not apply here, there is every reason to think the court will agree and will decide these cases on the merits.

Importantly, even if the court ends up holding that the political question doctrine prevents its consideration of the issues in Mazars, that doctrine has no impact on the second case the court will hear—Trump v. Vance—because that case is not between two branches of the federal government. To avoid that state grand jury subpoena, the president has argued that he enjoys an absolute immunity from all criminal process so sweeping that it prevents a third party like Mazars from complying with a pre-indictment grand jury subpoena simply because the matters under investigation pertain to the president.

The Supreme Court’s precedents do not support so broad a theory of immunity. Indeed, the court has held that any claim of immunity is subject to a balancing test that weighs the importance of judicial process against the president’s ability to fulfill his constitutional function. Applying that standard, the court held that President Richard Nixon had to comply with a judicial subpoena for the Watergate tapes despite the importance of the confidentiality of presidential communications. Similarly, the court required President Bill Clinton to comply with a civil subpoena, and even permitted a civil trial to go forward against him while he was in office. If those judicial processes could go forward against sitting presidents without impermissibly interfering with their duties, this pre-indictment subpoena against Mazars—not the president—surely can go forward too. Indeed, the disruption associated with complying with a grand jury subpoena is far less than that of criminal indictment, and less even than being named as an unindicted co-conspirator—something that happened to Nixon in the Watergate tapes case.

At bottom, although these two cases raise a variety of different legal questions—from justiciability to Congress’ powers to the president’s immunity—they ask the Supreme Court to decide whether to allow investigative bodies to do their jobs and complete legitimate investigations related to the president. If the court concludes that they cannot, it will be tantamount to saying that the president is above the law. Precedents in both cases fall squarely on the sides of the congressional committees and the grand jury seeking these documents. It remains to be seen whether the court will follow its past precedents or give this president the protections of a king.

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