The Supreme Court tackled questions of Congress’s constitutional subpoena powers, which some justices fear could be used to “harass” a co-equal executive branch.
On Tuesday, the high court heard arguments in Trump v. Mazars USA, a landmark case involving Trump’s financial records. Justices are exploring the question of whether the House Oversight Committee exceeded its authority by issuing a subpoena for the private documents in President Trump’s accounting firm, Mazars USA, and business Deutsche Bank, a creditor for Trump’s properties as a private citizen.
Trump sued the panel to prevent the accounting firm from releasing the records, arguing that they served no legitimate legislative purpose. The House argues they need the documents to determine whether it is necessary to amend ethics-in-government laws.
Conservative Chief Justice John Roberts, nominated by President George W. Bush, questioned Douglas Letter, general counsel for the House, who argued that the Democratic-led House committee could subpoena records that “concern a subject on which legislation could be had.”
“Could you give me a plausible example of a subject that you think is beyond any legislation that Congress could write,” Roberts began the line of questioning. “It doesn’t seem in any way to take account of the fact that we’re talking about a coordinate branch of government: the Executive Branch. Do you have any alternative to that limitless test that would take account of the fact you’re dealing with a coordinate branch of government.”
Several justices took issue with a response Letter provided to liberal Associate Justice Ruth Bader Ginsburg, who asked about claims from critics that the broad limiting principle the committee argues it has could be used to burden a president belonging to an opposing political party.
“Mr. Letter, I was somewhat baffled by your answer to Justice Ginsburg about the use of congressional subpoenas for purposes of harassing a president,” conservative Associate Justice Samuel Alito said. “Your final answer is, ‘Courts can take care of that.’ But that’s the issue here.”
Conservative Associate Justice Neil Gorsuch concurred with Roberts’s characterization of the House’s standard for a legitimate legislative purpose as “limitless,” but Associate Justice Brett Kavanaugh asked additional questions related to the limiting principle of “concerns a subject on which legislation could be had.”
“What about medical records?” Kavanaugh asked Letter. “Why wouldn’t they be pertinent to say, ethics legislation, healthcare legislation, or the like, in your view?”
Associate Justice Clarence Thomas, also a conservative, asked about the potential of subpoenas to burden the president in aggregation. “One [subpoena] could be manageable, but 100 [subpoenas] could be impossible,” Thomas said.
The concerns voiced about the potential for the subpoenas to burden the presidency was not shared solely among the conservative justices. Liberal Associate Justice Stephen Breyer stated the subpoenas were hoping to obtain “a lot of information, and some of it’s pretty vague.”
“And if somebody subpoenaed you for that information, or subpoenaed your tax account, or subpoenaed somebody in your business, wouldn’t you at least want to know what was being turned over? And might not that take time? And might that not take effort? So my problem is there may be burdens here,” Breyer said.
Still, liberal Associate Justices Ginsburg, Sonia Sotomayor, and Elena Kagan were inclined to agree with Congress’s argument for procuring information from the president.
“I also took the brief not to be making that claim, that this subpoena would impair the president in carrying out his constitutional functions,” Kagan said, but later asked if it could undermine the president’s ability to perform his job.
Though the legal challenge deals with lawmaking when it comes to ethics in government, some House Democrats have said the information could be used for investigative purposes.
California Rep. Adam Schiff, the House Intelligence Committee chairman, said he wants the records as part of the committee’s “oversight authority and authorized investigation into allegations of potential foreign influence on the U.S. political process.”
The high court also considered Trump v. Vance, which focuses on subpoenas issued by the district attorney of New York County.
On Wednesday at 10 a.m., the court will also hear final oral arguments over the telephone on Chiafalo v. Washington, which examines a law from Washington state that requires electors to cast their votes for the candidate who wins the popular vote.
In 2016, some electors cast their vote for former Secretary of State Colin Powell for president and were subsequently fined $1,000 by the Washington secretary of state. The Supreme Court will examine whether the law violates the electors’ First Amendment rights.
