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Separation of powers; Congressional subpoena for the President’s personal papers

by | Jul 17, 2020 | Business Litigation

TRUMP v. MAZARS USA, LLP, ___ U.S. ___, No. 19-715 (9 July 2020)

During April 2019, three committees of the U.S. House of Representatives issued subpoenas for information about the finances of President Trump, his children, and affiliated businesses.  The House claimed that generally the financial information would help guide legislative reform in money laundering, terrorism, and foreign involvement in U.S. elections.  The chairman of one of the committees said that the purpose of the subpoenas was to determine whether President Trump had violated the law before and during his tenure in office.  The President resisted complying with the subpoenas but did not argue that the records were protected by executive privilege.  The question before the Supreme Court was whether the subpoenas exceeded the authority of the House committees under the Constitution.

Historically, disputes over congressional demands for presidential documents have not ended up in court.  Instead, they have been settled in the give-and-take of the political process between the Congress and the President.  This practice began with George Washington and has continued to the current era.  Congress and the Executive have managed for over two centuries to resolve such disputes without guidance from the Supreme Court.  Although the parties agreed that the instant controversy is justiciable, the longstanding practice of settling disputes through compromise is entitled to great weight in cases concerning the allocation of power between the two elected branches of government.

Congress has no enumerated constitutional power to conduct investigations or issue subpoenas.  However, the Court has held that each house of Congress has power to secure information needed to legislate.  McGrain v. Daugherty, 273 U.S. 135, 161 (1927).  Congress has auxiliary powers that are appropriate to law-making, and issuing subpoenas is an appropriate auxiliary power.  Because this power is justified solely as an adjunct to the legislative process, it is subject to important limitations.  Most importantly, a congressional subpoena is valid only if related to and in furtherance of a valid legislative purpose.  Quinn v. United States, 349 U.S. 155, 161 (1955).  Congress may not issue a subpoena for the purpose of law enforcement because those powers are assigned under our Constitution to the Executive and the Judiciary.  Congress has no general power to inquire into private affairs and compel disclosures, and there is no congressional power to expose for the sake of exposure.  Recipients of legislative subpoenas retain their constitutional rights throughout the course of an investigation.

Because the subpoenas for the President’s personal information did not implicate sensitive Executive Branch deliberations, the House did not have to satisfy a standard of heightened need for the information of the type required by United States v. Nixon, 418 U.S. 683 (1974).  The House need not demonstrate “specific need” for the information or that the information is “demonstrably critical” to its legislative purpose.  However, there must be a legislative purpose.  

The Court said that it could not ignore that the subpoenas involve the President.  A congressional subpoena to the President is not like a subpoena to an ordinary person.  Congressional subpoenas for the President’s information unavoidably pit the political branches against one another.  The President is the only person who alone comprises a branch of government.  A subpoena for the President’s personal papers can abridge separation of powers even if executive privilege does not apply.  Assertion of executive privilege is not a necessary condition for the President to resist a congressional subpoena.  In assessing whether a subpoena directed at the President’s personal information is related to and in furtherance of a legitimate task of Congress, courts must perform a careful analysis that takes adequate account of the separation of powers at stake, including both the significant legislative interests of Congress and the unique position of the President.

When reviewing the propriety of a congressional subpoena for the President’s personal records, courts should consider the following:

(1) The President’s personal documents must be necessary to Congress’ legislative purpose, not merely convenient or helpful.  

(2)  The subpoena must be narrow and specific.  

(3) A court must scrutinize the nature of the evidence Congress offers in support of its claim of legislative purpose and should not accept broad brush statements of legislative purpose.  

(4)  A court should assess the burdens imposed on the President by the subpoena and assure that the subpoena is not being used to gain an institutional advantage.  

The lower courts did not take sufficient account of these points, and the Supreme Court remanded for further consideration in accordance with its opinion.

The was a seven-to-two decision.  Justices Thomas and Alito dissented

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].