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Thursday, August 6, 2020

House Blunders to Blame for Setback in Trump Subpoena Case

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Just a few minutes into Supreme Court arguments over congressional subpoenas for President Donald Trump’s financial records, it was clear that House Democrats were in trouble.

The House had argued that it has far-reaching subpoena powers and can compel disclosure of documents related to any legislation it’s considering. Chief Justice John Roberts was not so sure. Congress can consider legislation on any number of subjects, and Roberts pressed House lawyer Doug Letter for just one example of information beyond the reach of a congressional subpoena under the House’s proposed theory.

“Your test is really not much of a test,” Roberts told Letter, adding that the House’s approach would unduly weaken the presidency.

Justice Samuel Alito delivered the body blow a few minutes later, pointedly reminding Letter he could not give “even one example of a subpoena that would not be pertinent to some conceivable legislative purpose.”

“That’s correct,” Letter replied. “Because this Court itself has said Congress’s power to legislate is extremely broad.”

It was a startling moment—advocates always have a limiting principle in their back pocket when arguing before the Court—and the chief justice made Letter pay for it in Thursday’s decision.

“Any personal paper possessed by a president could potentially ‘relate to’ a conceivable subject of legislation,” Roberts wrote in the majority opinion. “Indeed, at argument, the House was unable to identify any type of information that lacks some relation to potential legislation.”

Letter’s audacious legal strategy fell flat before the nation’s highest judicial tribunal. When the decision in Trump v. Mazars came down Thursday, not a single justice voted in the House’s favor. Instead, the Court awarded Trump a short-term tactical victory that gives future presidents a boost when congressional investigators come looking for their personal papers. It was an outcome that might have been avoided had the House tempered its claims.

“At oral arguments, the House could offer no meaningful limiting principles, and that likely added to the justices’ skepticism of the House’s position,” University of Iowa law professor Andy Grewal told the Washington Free Beacon.

The House also sabotaged itself in other ways. A congressional subpoena must be connected to some “legitimate legislative purpose,” but the justices said some of the House’s stated purposes didn’t hold up.

For example, Democrats pointed to ethics bills as proof of the subpoenas’ legislative purpose. The House Oversight Committee claimed the subpoenas would inform its decision to compel new financial disclosures from the president, or extend conflict of interest laws to the presidency.

Trump’s lawyers countered that such legislation would be unconstitutional, since it effectively sets new qualifications for serving as president, which the Constitution alone dictates. The late chairman of the Oversight Committee, Rep. Elijah Cummings (D., Md.), confidently dismissed such arguments as “baseless” and accused the president of an “unprecedented coverup” in a May 2019 statement.

The justices were more equivocal. The Court agreed such bills raise “sensitive constitutional issues,” meaning Democrats can’t bank on the Oversight Committee’s rationale going forward.

Likewise, the House Financial Services Committee told lower courts it wished to comb through Trump’s financial records “as a useful case study” in suspect lending practices that would guide possible changes to the Bank Secrecy Act and anti-money laundering regulations. On that point, the High Court rejected Democrats outright.

“The president’s unique constitutional position means that Congress may not look to him as a ‘case study’ for general legislation,” the Court’s decision reads.

All told, the Court rejected the House’s chosen theory of its subpoena powers and found some of its subpoena-specific explanations shoddy. Despite the self-inflicted errors, however, the House’s case still has life. The Court held that the House’s subpoenas will stand if Congress makes certain showings, and the cases will now return to forums where Democrats prevailed at earlier stages.

Yet the decision contains many roadblocks for congressional investigators that will bolster future presidents in standoffs with Congress. For example, the Court warned that Congress may not seek the president’s personal records if other sources could yield the information it needs.

Mazars offers significant protections for presidents in the future because the Court made clear that a congressional request for a president’s personal information, whether held by the president or someone else, implicates separation of powers concerns,” Grewal told the Free Beacon. “The Court also emphasized that those concerns cannot be dismissed lightly.”

Placing the decision in the full sweep of the House’s other investigative efforts is doubtless demoralizing for Democrats. Impeachment failed, but the quest for Trump’s financial records has no end in sight.

Kevin Daley covers the Supreme Court for the Washington Free Beacon. He has covered the Supreme Court since 2016. His email is [email protected]



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