Is Congress a coequal branch of government that deserves the federal judiciary’s respect when acting pursuant to its constitutional powers? Or is it a crude assembly of partisan hacks hellbent on destroying Donald Trump’s presidency that deserves no judicial deference whatsoever?
On Tuesday, the Supreme Court posed variations on this question in Trump v. Mazars and Trump v. Deutsche Bank, the most important cases about presidential power since the Nixon tapes. Mazars and Deutsche Bank ask whether the House of Representatives has constitutional authority to subpoena Trump’s financial records. The answer should obviously be yes. To reach that conclusion, however, the court must trust the House to exercise its powers responsibly. And it is unclear whether a majority of the court believes the chamber can be trusted.
Mazars and Deutsche Bank involve the House’s long-running efforts to obtain financial information from the president and his businesses. After Democrats won a House majority in 2018, several committees subpoenaed these banks to aid with investigations into potential conflicts of interest, foreign interference, and fraud—but Trump intervened, urging federal courts to quash the subpoenas. (Trump’s Justice Department then intervened on his side, too.) The president’s lawyers argued that the House failed to justify its subpoenas, rendering them invalid. Every lower court ruled against him; now the Supreme Court will have the final say.
Although these cases involve sensitive political issues, they are not especially difficult from a legal standpoint. SCOTUS has long held that Congress’ power “to conduct investigations is inherent in the legislative process.” This “power of inquiry,” the court has explained, is “an attribute of the power to legislate,” because lawmakers must gather information before writing laws. SCOTUS has expressly permitted Congress to issue subpoenas so long as they relate to some “legitimate legislative inquiry.” Courts cannot search for a secret, illicit motive behind a subpoena; so long as it is valid on its face, the judiciary must enforce it.
The House committees provided several justifications for its subpoenas here. The Oversight and Reform Committee sought to determine whether Trump accurately reported his finances so they could craft stronger ethics laws. The Financial Services Committee sought to investigate potential money laundering to bolster banking laws. And the Intelligence Committee wanted to learn about Trump’s entanglement with foreign entities to help stop election interference. It is entirely possible that these committees had mixed motives. Under decades of precedent, though, that doesn’t matter, because the committees still gave legitimate legislative reasons for their subpoenas.
Yet Patrick Strawbridge, who argued for Trump on Tuesday, questioned whether Congress can ever subpoena the president. His radical position took Chief Justice John Roberts aback. “Do you concede any power in the House to subpoena personal papers of the president?” Roberts asked Strawbridge. “I think it is very hard to imagine that the House is ever going to have the power,” Strawbridge responded, “because, quite frankly, the House has limited powers to regulate the presidency itself.”
Justice Stephen Breyer asked the obvious follow-up: What about Watergate? Sen. Sam Ervin’s investigation into Nixon’s misconduct in 1973 rested on his legislative power to subpoena the executive branch. “Are you saying that Sam Ervin’s subpoenas … were unlawful, that a court should not enforce them?”
Strawbridge responded that the Watergate investigation involved impeachment, not legislation. That’s not true—but before Breyer had a chance to retort, Justice Samuel Alito hopped on the line. Can a house of Congress, Alito asked, “justify a subpoena for a sitting president’s personal records on the ground that it wants to use the president as a case study for possible broad regulatory legislation?” Strawbridge said no, claiming that would “open the door to all sorts of oppressive requests.” Alito lobbed another softball: “Does Congress have any power to regulate the conduct of the president, which is an office that is created by the Constitution itself and not by Congress?” Strawbridge responded that Congress does not have “very much” power to regulate the president. (By “regulate,” both men seemed to mean “conduct basic oversight.”)
Justice Sonia Sotomayor then told Strawbridge that there is “a long, long history of Congress seeking records” from a sitting president “and getting them.” The practice goes “as far back as 1792.” So why should the court outlaw this practice today? Before Strawbridge got out a coherent answer, Roberts called on Justice Elena Kagan, who captured the case in a single sentence.
“What it seems to me you’re asking us to do,” she said, “is to put a kind of 10-ton weight on the scales between the president and Congress and essentially to make it impossible for Congress to perform oversight and to carry out its functions where the president is concerned.”
Justice Ruth Bader Ginsburg pressed this point. “One must investigate before legislation,” she told Principal Deputy Solicitor General Jeff Wall, who weighed in for Trump. “The purpose of investigation is to frame the legislation. You don’t have the legislation in mind. You want to explore what is the problem, what legislative change can reduce or eliminate the problem.”
But the conservatives seemed to struggle to distinguish “oversight” from outright harassment. Wall warned that if courts don’t second-guess Congress’ justifications, legislators might start “harassing and undermining” the president. “Once the House has this weapon,” Wall said, it “will harm and undermine the presidency of the United States—not just this president, the institution of the presidency going forward.”
At this point, Strawbridge and Wall seemed to be losing. Then Douglas Letter, the bumbling general counsel for the House, began to talk, and the ground shifted. Roberts asked Letter for one “plausible example of a subject that you think is beyond any legislation that Congress could write.” Letter floundered for a while, then said “there would be a limit if Congress is interfering with the president’s ability to carry out his Article 2 functions.” But when does Congress interfere with the president’s constitutional duties? Justice Clarence Thomas then cast doubt on the entire constitutional basis for legislative subpoenas. He asked Letter for “the first example of Congress issuing a legislative subpoena to a private party for private documents.” Letter said he could not remember “off the top of my head.”
Ginsburg asked Letter for “the limiting principle” that would prevent Congress from “harass[ing] a president from the opposing party.” Letter indicated that “if there is harassment, the courts can take care of that.” Alito sounded shocked. “Well, that’s not much protection,” he told Letter. “In fact, that’s no protection, isn’t it?” He then reminded Letter: “You were not able to give the chief justice even one example of a subpoena that would not be pertinent to some conceivable legislative purpose, were you?”
“So the end result,” Alito concluded, “is that there is no protection” against the use of congressional subpoenas “for the harassment of a president.”
This exchange was a disaster for Letter that may have turned the tide of arguments. Previously, Strawbridge and Wall sounded extreme when asserting a presidential prerogative to ignore congressional subpoenas. Suddenly, it was Letter who sounded extreme: He couldn’t name a single limitation on Congress’ power to subpoena the president. Sotomayor tried to stop the bleeding, telling Letter “there’s no congressional power to expose for the sake of exposure. And the other side points of some hypotheticals that are troubling. … Tell me what we say to ensure against those hypotheticals.” But Letter couldn’t give a straight answer.
Justice Neil Gorsuch picked up the thread. “Normally, we use law enforcement investigative tools like subpoenas to investigate known crimes,” he said, not to fish around for a certain individual’s secret misdeed. “I’m wondering what limiting principle you offer us here that can prevent that danger.” All Letter could give him was the “pertinent legislative purpose” test. Justice Brett Kavanaugh also asked if Congress has “limitless authority” here. “Just about everything can be characterized, in terms of a subpoena, as pertinent to a legislative purpose,” he said. “I don’t think you could answer the chief justice’s question about something that wasn’t.” Kavanaugh asked if a president’s medical records would be pertinent. Letter wasn’t sure. Nobody was satisfied.
Letter did not have to wither under this questioning. He could’ve proposed a balancing test that weighs Congress’ interests against the president’s. Instead, he took a hard-line position that plainly alienated a majority of the justices. By doing so, Letter lent credence to Alito’s fears that Congress will use investigations to “regulate” the president instead of conducting lawful oversight. The conservative justices needed reassurance that Congress won’t exploit its subpoena powers to harass the president. Several seem to share Trump’s view of the House as a hotbed of dirty political operatives who will use every tool at their disposal to take down the president. Letter needed to assure the justices that the courts can restrict Congress’ subpoena power in some meaningful way. He failed.
There is irony in the fact that SCOTUS is so skeptical of Congress’ integrity when it is the president who is accused of committing crimes. These subpoenas present an existential threat to Trump’s presidency: They could reveal that he committed egregious fraud and financial misconduct, as his former associates have alleged. That, presumably, is why Trump is so desperate to keep them secret. If the House obtains proof of wrongdoing and presents it to the public, it could tank Trump’s reelection chances. If SCOTUS lets Trump conceal that evidence, Trump can continue to insist that he is perfectly innocent, framing these investigations as presidential harassment.
It is still possible that the House could win this case. Roberts might create his own rule, honoring these subpoenas while drawing a line in the sand for the future. He could dismiss the case as a political question outside the court’s reach (though that seems unlikely). Or he could establish a new standard for congressional subpoenas, then send the case back down to the lower courts to apply it. If Roberts has five votes for a punt, he could run down the clock on Trump’s presidency, ensuring that the House never gets its hands on his financial records. Without a clear command from SCOTUS, Trump will never let Mazars and Deutsche Bank turn over those papers. A muddled ruling will only help the president, giving him new reasons to stall. Unfortunately, Tuesday’s arguments brought the court no closer to clarity.