On Tuesday, the Supreme Court will hear three cases that could upend one of the most basic assumptions that the Court has maintained since the Nixon years — that the president of the United States is not above scrutiny or immune from investigation. The Court will hear these cases, moreover, in an unusual remote argument — the Supreme Court’s building remains closed to the public due to the coronavirus.
They are maddening because, in all three cases and especially in the first two, existing law is clear that President Trump should lose. Mazars and Deutsche Bank concern Trump’s attempts to immunize himself from congressional oversight seeking access to many of his financial records. Meanwhile, Vance involves a New York prosecutor’s investigation into alleged criminal activity by the Trump Organization — which also seeks some of Trump’s financial records.
In all three cases, Trump’s lawyers have made extraordinarily expansive claims that the president is beyond the reach of investigators. Indeed, in Vance, Trump lawyer William Consovoy literally told a federal appellate judge that Trump is immune from criminal investigation, at least while he’s in office, if he were to shoot someone in the middle of Manhattan’s Fifth Avenue:
Here is Trump’s lawyer, William Consovoy, telling Judge Denny Chin that if Trump were to shoot someone on fifth avenue, he could not be criminally investigated while in office.
Very normal argument. pic.twitter.com/xlDBwmCUnR
— Erick Fernandez (@ErickFernandez) October 23, 2019
In all three cases, investigators targeted third parties with access to Trump’s records — banks and an accounting firm — so the president cannot resist these subpoenas simply by refusing to comply with them.
In any event, the cases present a very basic question about what it means to hold power in the United States. Should the most powerful man in the nation be given extraordinary legal immunity? Or does the fact that the president wields such power demand oversight of the man who holds that office?
Up until now, the Supreme Court has generally erred on the side of oversight. But it remains to be seen whether this Supreme Court, with its Republican majority, will act consistently with the Court’s prior decisions.
What these investigations are about
In Mazars, the House Oversight Committee subpoenaed the president’s accounting firm, Mazars USA. As a lower court that upheld this subpoena explained, this investigation began after “the Office of Government Ethics announced that it had identified an error in one of the several reports that President Trump had filed since he became a presidential candidate in 2015.” Later on, Trump’s former lawyer, Michael Cohen, testified that Trump “‘inflated his total assets when it served his purposes’ in some situations and had ‘deflated his assets’ in others,” thus exacerbating fears that Trump did not comply with federal ethics laws requiring him to disclose his finances.
Among other things, the House says that this investigation is needed to determine whether stronger ethics laws are necessary to prevent presidents from misrepresenting their finances in the future. Mazars, for its part, says that it will comply with the subpoena if courts determine that it should.
Similarly, the Deutsche Bank case involves two parallel House investigations targeting Deutsche Bank and Capital One.
One probe is being run by the House Financial Services Committee, which seeks many documents, most of which are actually unrelated to Trump. Among other things, it is investigating “the influx of illicit money, including from Russian oligarchs,” which “has flowed largely unimpeded into the United States through … anonymous shell companies and into U.S. investments, including luxury high-end real estate.”
But the broader investigation into foreign money laundering and similar crimes touches on Trump and his businesses. According to a 2017 article in USA Today, Trump “and his companies have been linked to at least 10 wealthy former Soviet businessmen with alleged ties to criminal organizations or money laundering.”
The Financial Services Committee also says that its investigation may inform proposed legislation that, among other things, would make it easier to determine if US businesses are enabling international money laundering.
Meanwhile, the second probe by the House Intelligence Committee also seeks many of the same documents from Deutsche Bank. Its investigation touches more directly upon Trump himself, as it seeks to answer questions like whether there are “any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests.” This investigation may also inform legislation seeking to reduce foreign interference in US elections.
Finally, the Vance case involves Manhattan District Attorney Cyrus Vance’s criminal investigation into the Trump Organization and related businesses. Vance’s brief to the Supreme Court points to “multiple public reports” describing “transactions and tax strategies . . . spanning more than a decade,” which suggested that Trump’s businesses were engaged in criminal activity within Vance’s jurisdiction. Vance points specifically to “‘hush money’ payments made on behalf of [Trump] to two women with whom [Trump] allegedly had extra-marital affairs.”
Vance’s office subpoenaed Mazars, seeking financial documents that may inform this criminal investigation.
What existing law actually says about congressional subpoenas
Current law governing the House’s power to issue subpoenas and conduct investigations is so favorable to the House’s legal position that it is more than a little surprising that Mazars and Deutsche Bank needed to be heard by the Supreme Court at all.
As the Supreme Court explained in Eastland v. United States Servicemen’s Fund (1975), “the power to investigate and to do so through compulsory process . . . is inherent in the power to make laws.” Without such a power, “a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”
For this reason, the Court recognized in an earlier case that Congress’s investigative power is “co-extensive with the power to legislate.” Thus, the Court held in Eastland, Congress is entitled to gather information — and to use compulsory subpoenas to gather such information — whenever that subpoena is “intended to gather information about a subject on which legislation may be had.”
The Supreme Court, moreover, has cautioned that courts must be extraordinarily cautious about interfering with congressional investigations. “To find that a committee’s investigation has exceeded the bounds of legislative power,” the Court held in Tenney v. Brandhove (1951), “it must be obvious that there was a usurpation of functions exclusively vested in the Judiciary or the Executive.”
Finally, courts are forbidden to dig into the legislature’s motives for conducting a particular investigation. One of Trump’s lawyer’s primary arguments against the House’s subpoenas is that Congress’s real purpose is to catch Trump in a criminal act, not to actually conduct investigations that could inform pending legislation. But even if the House does have a hidden motive, the courts are prohibited from digging into that motive under the Supreme Court’s precedents.
“So long as Congress acts in pursuance of its constitutional power,” the Court held in Barenblatt v. United States (1959), “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
Given these extraordinarily deferential precedents, there’s really no doubt how Mazars and Deutsche Bank should be resolved, at least going by existing law. Each of the subpoenas seek to gather information about “a subject on which legislation may be had” — whether that subject be presidential financial disclosures, money laundering, or foreign interference in elections. And the Supreme Court is forbidden from digging into whether the House had some other motive for issuing these subpoenas.
What existing law actually says about law enforcement subpoenas of Trump
Trump claims even broader immunity from Vance’s subpoena than he seeks from House investigations. “The President cannot effectively discharge [their] duties if any and every prosecutor in this country may target him with criminal process,” Trump’s lawyers write. They claim that “the Constitution gives to Congress, through its power of impeachment, the sole right to prosecute the sitting President for wrongdoing,” and that the president may not be subject to any criminal process whatsoever until after they leave office.
But the Supreme Court’s precedents do not support such a claim of sweeping immunity for the president, at least when an investigator seeks information unrelated to the president’s conduct while in office.
The Supreme Court did hold in Nixon v. Fitzgerald (1982) that a president “is entitled to absolute immunity from damages liability predicated on his official acts.” So civil lawsuits seeking to hold a president to account for his conduct as the nation’s chief executive will generally fail.
Similarly, a president may have some immunity from criminal process when prosecutors seek information related to that president’s official actions. But the scope of this immunity is much more limited. As the Supreme Court explained in United States v. Nixon (1974), allowing the president to “withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.”
But both Nixon cases involved a president’s conduct in office. They did not involve an investigation into a private business that happened to be associated with a sitting president. And this distinction matters a great deal. As the Supreme Court held in Clinton v. Jones (1997), “we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”
Now, there is some language in Clinton that is favorable to Trump’s position in the Vance case. Clinton held that a president may be subject to a private civil lawsuit filed in federal court, but it also punted on the question of what should happen if a president is sued in state court.
“Because the claim of immunity is asserted in a federal court and relies heavily on the doctrine of separation of powers that restrains each of the three branches of the Federal Government from encroaching on the domain of the other two,” the Court explained in Clinton, “it is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal.”
But Vance also doesn’t involve a “comparable claim” to the one at issue in Clinton. As the two Nixon cases suggest, the president has much weaker immunity to criminal process than his immunity to civil lawsuits. And Vance involves a criminal investigation.
Moreover, as a federal appeals court that upheld the Vance subpoena concluded, the subpoenas, in that case, do not target Trump directly. Rather, they target an accounting firm. And they seek documents that may inform a broad criminal investigation that stretches well beyond Trump himself. As the lower court noted, “the grand jury is investigating not only the President, but also other persons and entities.”
Thus, if Trump were afforded the broad immunity that he seeks, that could have ripple effects that extend far beyond the president. Such immunity could frustrate a much broader investigation, and effectively immunize third parties who engaged in criminal activity, and who are not the president.
This is exactly the sort of ripple effect the Supreme Court worried about when it warned that allowing a president to “withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” As the Supreme Court warned in the 1974 Nixon case, if presidential immunity leaves courts “without access to specific facts,” then “a criminal prosecution may be totally frustrated.”
All of which is a long way of saying that, while the Vance case is not as clear cut as the Mazars and Deutsche Bank cases, existing law still weighs heavily against Trump.
Is the president special?
Trump’s personal lawyers take unusually maximalist positions in their brief, often relying on highly dubious factual claims in the process. Trump’s lawyers begin their argument with a rhetorical flourish — “to call these subpoenas unprecedented would be an understatement,” they claim, adding that “this is the first time that Congress has subpoenaed private records of a sitting President.”
But the House’s brief lists numerous examples where Congress did, in fact, obtain private records from a sitting president, including an 1860 investigation into President James Buchanan, which subpoenaed Buchanan’s private letters; an 1867 investigation into President Andrew Johnson that examined Johnson’s “private financial dealings and bank accounts”; 1973 and 1974 investigations into President Richard Nixon, which obtained Nixon’s tax returns; and a 1980 investigation that subpoenaed tax and bank records from President Jimmy Carter’s brother as part of a larger investigation into the president’s business dealings with that brother.
Nevertheless, the Trump Justice Department also filed briefs arguing, in effect, that the president is special. They argue that investigators must jump through novel hoops if they seek information concerning a president. “The President occupies a unique position in the constitutional scheme,” Trump’s solicitor general argues, quoting the Fitzgerald decision, and thus the president must enjoy “immunity from any process that would risk impairing the independence of his office or interfering with the performance of its functions.”
As a historical matter, this argument is dubious. After the Supreme Court allowed the Clinton lawsuit to move forward, the private plaintiff in that lawsuit subpoenaed Monica Lewinsky to testify that she had an affair with President Bill Clinton. That set in motion a chain of events that led to Clinton’s impeachment.
So, if the Supreme Court were willing to tolerate a lawsuit that interfered so substantially with Clinton’s ability to focus on his functions as president of the United States, it’s hard to argue that subpoenas seeking some of Trump’s financial documents will be even more disruptive of Trump’s ability to do his job as president.
Nevertheless, the Supreme Court recently signaled that it is open to the argument that there should be special rules for subpoenas targeting the president. In late April, the Court ordered the parties to file additional briefs “addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.”
The political question doctrine provides that courts should not decide certain matters that are better decided by the elected branches. Among other things, it applies when judges fear the “impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.” The Supreme Court’s order calling for supplemental briefing is brief and cryptic, but it suggests that at least some members of the Court are open to an argument that a court decision ordering enforcement of the subpoena would show “lack of respect due” to President Trump.
That said, it is unclear whether Trump would benefit from a Supreme Court decision dismissing this case under the political question doctrine. Trump, after all, is the plaintiff in these cases. He is suing to prevent Mazars and the banks from voluntarily complying with the House’s subpoena. If the Supreme Court says that federal courts may not decide Mazars and Deutsche Bank, the House might still obtain the documents that it seeks because the banks and accounting firm could still choose to turn the documents over voluntarily.
With great power …
Ultimately, the solicitor general’s brief frames these cases as fundamental disputes about what it means to wield power. That brief argues, in essence, that the president plays such an important and singular role in our system of government that whoever occupies that office must be protected from interference.
That’s one way to approach such a powerful office. But another way is to say that with great power must come great responsibility. Under this view, the president should be a subject of investigation because he is powerful — and because that power gives an unchecked president tremendous ability to behave in an abusive and corrupt manner.
Especially in the congressional subpoena cases, existing law clearly indicates that Trump should lose before the Supreme Court. The question for the justices is whether they believe that protecting the most powerful man in the nation is so important that it is worth scrapping much of that existing law.
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