Subpoenas and the President

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Unlike any other federal court in the US, the Supreme Court has complete discretion over which cases it hears. Only if four of the justices want to hear a case will an appeal to the Court be granted.

As a result, you might think that only groundbreaking and critical cases are heard by the Supreme Court. In reality, while cases the Court hears are undoubtedly important to the litigants involved, and usually to a certain group of people or businesses that will be affected by the decision, most actually relate to fairly technical issues of the law and have limited impact on our nation as a whole.

But every once in a while, perhaps once or twice in a term, and maybe not even that often, a case is heard before the Supreme Court that will be remembered and cited for years if not decades to come.

Yesterday may have been one of those days.

Yesterday morning, by teleconference required as a consequence of the COVID-19 pandemic, the Supreme Court heard arguments in two sets of cases that may profoundly affect the US presidency and the separation of powers within our federal government.

The Cases

The first set of cases arise from subpoenas issued by certain committees of the House of Representatives. One case involves a subpoena issued by the House Committee on Oversight and Reform to President Trump’s accounting firm, Mazars USA LLP, for financial records relating to the president and certain related businesses. Although the subpoena wasn’t issued to the president or require him or any of his companies to respond, he filed a suit in the federal district court seeking to prevent the enforcement of the subpoena against Mazars. In both the district court and the court of appeals, the subpoena was upheld. As a result, the president appealed to the Supreme Court.

The Oversight Committee noted that the “election of a President who has decided to maintain his ties to a broad array of business ventures raises questions about the adequacy of existing legislation concerning financial disclosures, government contracts with federal officeholders, and government ethics, more generally. Whether new legislation on these subjects is needed is a natural subject of Congressional inquiry.”

In a related case, the House Financial Services Committee and the House Intelligence Committee issued subpoenas to two banks for non-privileged financial records held by those banks relating to the president and certain of his businesses and relatives, including his three oldest children. Both committees argued they were seeking information in connection with pending and future legislation and to investigate whether US intelligence is adequate to combat threats to national security, including Russian influence on the US political process. The Financial Services Committee expressly disclaimed any intent to investigate whether President Trump violated any laws. The lower courts also upheld these subpoenas.

The other case relates to a subpoena that Cyrus R. Vance, Jr., the Manhattan district attorney, served on Mazars USA LLP in connection with a grand jury proceeding to obtain financial records relating to the president and organizations affiliated with him. As with the first set of cases, the subpoena wasn’t issued to the president or require him or his companies to respond, but he similarly filed a suit in the federal district court to enjoin the subpoena. As was the case with the House committee subpoenas, both the district court and the court of appeals ruled against the president.

The grand jury subpoena seeks records, dating from 2011, for an investigation into possible criminal conduct by the Trump Organization. The transactions in question are unrelated to any official acts of the president, and largely occurred before he took office. One of the possible criminal acts involved the “hush money” payments made on behalf of the president to two women with whom he allegedly had extra-marital affairs.

The Implications

Why are these cases so important?

The US Constitution divides the federal government into three separate branches: the executive, which is headed by the president; the legislative, comprised of the two houses of Congress; and the judicial, which includes the Supreme Court and all of the lower federal courts. This division is referred to as the separation of powers, and was one of the mechanisms by which the drafters of the Constitution intended to prevent the consolidation of too much power in one person or branch in a manner that might lead to tyranny.

In addition, our government embodies a system known as federalism: one central government for the entire nation, along with independent governments for each of the 50 states. Under the Constitution, the federal government has limited powers, though where federal law or authority conflicts with that of a state, the federal law or authority prevails (which is known as federal supremacy). On the other hand, those powers not given to the federal government in the Constitution are left to the states or the people under the Tenth Amendment.

The subpoenas in these cases implicate issues of both separation of powers and federalism.

The drafters of the Constitution intended the three branches to be co-equal. As a result, anything that threatens the power of any one branch vis á vis another branch is carefully scrutinized. In the House committee cases, one power implicated is the ability of the Congress to obtain information it may need for legitimate purposes. If subpoenas issued by Congress could be ignored, it may be unable to do its job as the legislative branch. On the other hand, the case also implicates the ability of the president to perform his responsibilities, which could be impaired by congressional demands that are burdensome or constitute harassment of the president.

In the Vance case, a district attorney – an arm of a local government – is attempting to obtain information about a sitting president through a grand jury subject to state law and state court supervision. This implicates the doctrine of supremacy, whether a state proceeding can impose burdens on the head of the executive branch of the federal government, potentially impairing the ability of the president to perform the duties of the office.

It may be a surprise that these exact issues have never come up directly before in the Supreme Court.

The vast majority of congressional subpoenas with respect to the president or the executive branch over the years have been resolved through negotiation and mutual agreement. And litigation involving the president has been quite rare. As a result, there just haven’t been that many occasions where these issues have arisen.

Not many. But not none.

The Leading Prior Cases

In 1974 in US v. Nixon, the Supreme Court ordered President Nixon to deliver to a federal district court tape recordings and other documents that had been subpoenaed by a federal special prosecutor in connection with the prosecution of the co-conspirators involved in the Watergate break-in. President Nixon had claimed, among other things, that the material was unnecessary to that prosecution. He also claimed complete executive privilege over any communications with his staff. The Supreme Court unanimously found that the special prosecutor had produced sufficient evidence that the information was necessary, and that executive privilege is not absolute and did not protect the president from being required to comply with the subpoenas in this case. Nixon resigned sixteen days later.

The other leading case in this area is Clinton v. Jones, which arose from a sexual harassment claim made by a former Arkansas state employee against President Bill Clinton. The case was filed in a federal district court, but was stayed by the judge on the basis of the president’s assertion of immunity to civil actions while his term continued. In another unanimous decision, the Supreme Court rejected the assertion of presidential immunity, holding that separation of powers does not require federal courts to delay civil lawsuits against a president during their term. The Court expressly noted that the analysis might be different had the case been brought in a state court, and also said they did not reach the issue of whether a court could compel the president to appear at a specific time or place. In a concurrence, Justice Breyer argued that presidential immunity should only apply if the civil suit would impair the ability of the president to perform the duties of the office.

In the Supreme Court

The subpoenas that were the subject of yesterday’s arguments are different from those in the Nixon and Clinton cases in potentially important ways.

Neither Nixon nor Clinton involved a congressional subpoena. The ability of Congress to issue a subpoena is not set forth anywhere in the Constitution, but instead is an implied power of Congress, necessary to the fulfillment of its role as the legislative branch of the government. As a result, a congressional subpoena is only valid to the extent that it serves a purpose consistent with Congress’ role.

Similarly, the New York grand jury subpoena arises in a state context, not within federal court, and the Clinton case expressly said it was limited to the context of a federal court.

With this as background, we can consider the arguments made by the lawyers in the Supreme Court yesterday, and what it may mean to the ultimate decision by the Court. Before doing so, however, there are two points worth making.

Right here and right now, you should set aside all of your biases for or against President Trump. These cases relate to the balance of power between any president, on the one hand, and Congress and state criminal proceedings, on the other. If you dislike President Trump and want these subpoenas to be enforced, remember that the next time such a case arises may be with respect to a president that you support. And if you believe President Trump is being harassed and should be able to quash these subpoenas, consider whether you would feel the same way should the next president be one you oppose or even distrust.

Second, we can only predict so much from the justices’ questions at oral argument. I will make some educated guesses as to how the decisions may come out, but the process between hearing and final opinion can be lengthy, and there is no telling what may develop in the meantime.

As these arguments were held by teleconference, each of the justices was given a specific amount of time to ask questions of each advocate in the order of seniority (starting with the chief justice). Needless to say, what follows is a very abbreviated summary of almost three and a half hours of oral argument, and I am only noting the questions and answers with respect to a few of the justices in each case. If you are interested, I highly encourage you to listen in to some of the hearings while they are available on livestream.

The House Committee Subpoenas

The first case heard by the Supreme Court yesterday related to the subpoenas by the House Oversight Committee, the House Financial Services Committee and the House Intelligence Committee.

President Trump was represented by one of his personal lawyers, Patrick Strawbridge. The Justice Department also argued before the court, and was represented by Jeffrey B. Wall, a deputy solicitor general. Arguing on behalf of the House of Representatives was its general counsel, Douglas N. Letter.

On behalf of President Trump, Strawbridge argued that in the absence of an impeachment proceeding, Congress could subpoena the personal papers of a president only where it was “demonstrably necessary” in connection with the adoption of legislation. In this case, he argued that the House was really seeking the papers for investigatory purposes or to harass and embarrass the president. Moreover, since Congress has a very limited right to even legislate issues relating to the president, circumstances where a valid subpoena for personal records could be issued would be very few indeed.

Deputy Solicitor General Wall also emphasized that the purpose of the subpoenas was investigatory, to expose wrongdoing, which is not a legitimate use of a congressional subpoena outside the context of an impeachment. Justices Ginsburg and Sotomayor pressed him on this, noting that investigation often is required before legislation can be crafted. Wall responded that where the president is involved, a high standard needs to be met to avoid harassment and undermining the president, which he said had not been met by the committees.

Justice Kagan asked Wall what made these subpoenas so burdensome that they should be stopped. Wall replied that the burden here is the effect of harassing and undermining the president. He argued that if these subpoenas are permitted to stand, it will reshape the balance of the separation of powers and damage the institution of the presidency by putting a weapon in the hands of Congress.

Several justices pressed Letter, on behalf of the House, on whether there are any limitations to the scope of a potential congressional subpoena for the personal documents of a president. Justices Roberts, Alito and Kagan separately asked him if there are any subjects that could be beyond a legislative purpose. Letter responded each time a bit hesitatingly, but ultimately said he couldn’t think of any subjects that would be beyond Congress’ reach. The only limitation that he could identify related not to the subject matter of the subpoena, but a requirement that Congress not interfere with the president’s ability to perform the duties of the office or harass the president. Toward the end of the argument, several justices asked whether medical records could be subject to subpoena, and whether the president could be used as a “case study” for legislation. That led Justice Alito to ask if one house of Congress could subpoena the medical records of the members of the other house, as case studies.

At one point, Justice Thomas, noting that the subpoena power was an implied power of Congress, asked Letter whether there were any other implied congressional powers. Letter said he didn’t know if there were any. He also was unable to identify the first time the implied power of subpoena was ever used by Congress.

Justice Kavanaugh seemed throughout the day’s arguments to be seeking a standard that would guide when subpoenas against a president are permitted. In that vein, he asked Letter why the “demonstrably necessary” test that the president’s counsel had proposed wasn’t a workable option to define the scope of a permitted congressional subpoena. Letter responded that this would upset the separation of powers, as it would require Congress to identify a law before it had done the investigatory work necessary to determine what is needed.

In all, I think it is fair to say that Mr. Letter did not have a good day before the Supreme Court. He had a hard time with some basic historical questions from Justice Thomas, and a number of the justices seemed very troubled by the apparent unlimited scope of a congressional subpoena should his position be upheld.

On the other hand, Letter did explain why the standard proposed by the president’s team – the “demonstrably necessary” standard – would not work in the context of the legislative process.

So where does that leave the Court? I don’t think there is support for Letter’s position that any congressional subpoena that doesn’t keep the president from performing the duties of the office is OK. But a problem with the “demonstrably necessary” standard was identified. Given that none of the litigants made a third proposal, that might leave the court without anything to work with. Were it not for the case that followed.

The New York District Attorney Subpoenas

In this case, President Trump was represented by another of his personal attorneys, Jay A. Sekulow. The Justice Department again weighed in, represented by the solicitor general, Noel J. Francisco. Cyrus Vance, the Manhattan district attorney, was represented by a member of his office, Carey R. Dunne.

Sekulow’s essential argument mirrors the argument originally made by President Clinton in the Clinton v. Jones case: so long as the president remains in office, he is immune from any process in a state proceeding. He distinguishes Clinton because that was in a federal court. He also suggested that a civil case, such as with Clinton, is less burdensome than a criminal proceeding. He repeatedly pointed out that the president is not just a person, but is a branch of the government by himself, and so is treated differently than any other person. Sekulow further noted the potential enormous burden that could be put on the president if all 2300 state district attorneys in the country decided to empanel grand juries to investigate the president.

While Sekulow was unbent, insisting on a categorical prohibition, it didn’t seem to me that any of the justices were giving this proposition serious consideration. The rest of the arguments all centered around a search for a standard by which the propriety of a subpoena could be determined. I am left wondering if Sekulow’s arguments were really for an audience of one: President Trump.

Solicitor General Francisco immediately distinguished his position from Sekulow’s by saying that the grand jury subpoenas should be considered under a “special needs” standard that was first set forth in US v. Nixon. He didn’t discard Sekulow’s argument; rather, he said that since the district attorney had not met the special needs standard, which should apply here, the Court did not need to consider the broader question of presidential immunity.

Several of the justices seemed concerned that the special needs standard would not work in the context of a grand jury investigation, or would be difficult to adjudicate. Justice Breyer noted that the special needs standard set forth in Nixon was in the context of a claim of executive privilege; why should that standard be imported into this case, where no privilege claim is being made? Francisco fell back on the need to avoid undue burdens on the president.

Francisco did suggest, while being questioned by Justice Gorsuch, that his standard still might mean that a subpoena where the president is a potential defendant might have to wait until the end of his term, since he can’t be indicted while in office.

In my opinion, Dunne, on behalf of the Manhattan district attorney, did an outstanding job, and may have saved the case for the House subpoenas as well.

He started by noting that his office was investigating actions prior to President Trump’s inauguration, in his capacity as a private citizen. The investigation had no ill animus, and was started because of public disclosures of potentially illegal business transactions. Under the principles of federalism, the subpoenas should be enforceable.

Much of the discussion with the justices that followed related to exactly what standard should apply in evaluating whether a subpoena would be appropriate. Dunne argued that the first requirement was for the president to show that the subpoena imposed an “Article II burden”. He noted that the lower courts in this case had already found that there was no burden in fact on the president. But if a burden were found, then instead of the Department of Justice’s proposal for the “special needs” standard, the subpoena should be enforced if there is a reasonable basis for the request and there is a reasonable prospect for obtaining the requested information. He noted that the DoJ standard would be an unreasonable burden on the grand jury process, and cannot be satisfied under the circumstances of a normal grand jury (where a charging decision has not been made, so the particularity required by that standard cannot be met).

Dunne was quick to acknowledge that even his standard was a higher standard than applied to normal individuals, and that unreasonable burdens on the president would be a basis for quashing a subpoena. But he then noted that the lower courts had found no such burden, and that the district attorney had indeed already been found to have satisfied the standard he proposed.

With respect to the fears that there could be waves of litigation from district attorneys around the country against presidents of the opposite political party, Dunne noted that most local prosecutors would not have jurisdiction over the president; New York did in this case, because it was the base for the Trump Organization. He also noted that federal courts normally assume good faith on the part of their state counterparts, not ill intent as proposed by the president’s lawyer.

Dunne also addressed the issues raised if the subpoena had to be stayed until the end of a president’s term. Statutes of limitations may pass, either with respect to the president or related businesses, which would forever bar the investigation. Moreover, witnesses may die, memories may fade and documents may be lost or destroyed. So even if an indictment must wait, the investigation should not.

A Little Prognosticating

As I said, it’s hard to evaluate where the justices stand based just on their questioning.

However, I believe a few things can be said with some degree of certainty. The Supreme Court is very unlikely to adopt President Trump’s assertion of categorical immunity from process while he is in office. With respect to the subpoenas issued by the Manhattan district attorney, I think the only real question is the standard that must be satisfied for the subpoenas to be enforced. I think there is a good chance that the standard proposed by Vance’s office will be adopted, though there is certainly the chance that something different is agreed by the justices. To me, there seems a real possibility that the decision in this case is 8-1 or even 9-0.

The House committee subpoena case is a bit harder to divine, since I don’t think either side’s position is likely to be adopted in whole. The Court could agree with the president that the stated bases of the subpoenas were pretextual, and that they therefor are invalid. If that opinion carries the day, I suspect there will be multiple dissents. On the other hand, the justices could take advantage of the standard set forth by the Manhattan district attorney, and apply that to the congressional subpoenas as well. In that case, they would likely send the case back to the district court to evaluate the subpoenas under this new standard.

If the cases come out somewhere along these lines, I think this would be a good outcome. There really are important competing interests here. Presidents cannot be above the law, and Congress must be able to do its work, which includes the expectation that its valid subpoenas will be honored. On the other hand, the president must be able to perform the duties of the office, and politically motivated legal process should not be available as a weapon against the president in the hands of the other party.

Now, we just need to wait and see.