As the Supreme Court prepares to hear oral argument in perhaps its most important separation of powers cases of the term, we wait, yet again, to see which Chief Justice John Roberts will show up.
Will it be the Chief Justice Roberts who is playing the long game with his reputation, the jurist with an eye towards history? This is the Judge Roberts who dazzled us at his confirmation hearings in 2005, extolled the virtues of consensus in Jeffrey Rosen’s adoring profile in The Atlantic in 2007, and avoided a partisan ruling when he abandoned his fellow conservatives to provide the fifth vote upholding the individual mandate in the Affordable Care Act in 2012.
Or will it be the Chief Justice Roberts who is determined to continue to entrench conservative legal principles as the federal law of our land? This is the chief justice who has presided over a Supreme Court that gutted a key provision of the Voting Rights Act in 2013, has invalidated campaign finance laws, and recently invoked the political question doctrine to end litigation over claims of partisan political gerrymandering.
The three cases involve access to President Trump’s financial records, including the tax returns he never has publicly disclosed. Two involve subpoenas issued by congressional committees. The third involves a grand jury subpoena issued by the New York District Attorney as part of an investigation into whether state criminal laws were violated.
The cases will be argued on Tuesday, May 12. Due to the pandemic, the Supreme Court will hear oral argument by phone. The public will be able to listen to the argument as it occurs via live audio broadcast.
The key issues to be addressed in the cases are not unprecedented. In 1974, President Nixon lost his appeal to the Supreme Court when he resisted a subpoena issued during the criminal investigation of the Watergate break-in. In 1997, President Clinton lost his appeal to the Supreme Court to avoid a pretrial deposition in the civil case brought against him by Paula Jones.
While the current Trump cases are not identical to those involving Nixon and Clinton, there are enough similarities that it seems that the Supreme Court should reject the President’s appeals here, just as it did in those earlier cases. The wild card is that the Court recently asked for supplemental briefing that suggests it may be seeking to avoid that outcome.
The Congressional Oversight Cases
The two cases involving the congressional subpoenas will be argued together and are first on the docket. Trump v. Mazars USA, LLP arises out of a dispute over a subpoena issued by a House of Representatives committee to Mazars, an accounting firm, “for records related to work performed for President Trump and several of his business entities both before and after he took office,” according to the U.S. Court of Appeals for the D.C. Circuit.
The House Committee on Oversight and Reform contends that the documents are relevant to its investigation into whether Congress should revise its ethics-in-government laws. President Trump, asserting that the demand for his records does not serve any legitimate legislative purpose, filed suit in federal district court to prevent Mazars from complying with the subpoena. The district court ruled against the President, a decision that was affirmed by the D.C. Circuit.
The second case, Trump v. Deutsche Bank AG, involves subpoenas issued by two House committees seeking financial records from two banks. The subpoenas served on Deutsche Bank seek the records of President Trump, members of his family, the Trump Organization, Inc., and several affiliated entities, while the subpoena served on Capital One Financial Corp. seeks records only of the Trump Organization and affiliated entities. The House committees say they are seeking the records as part of investigations into foreign money laundering and possible foreign electoral interference.
President Trump and others sued the banks in U.S. District Court for the Southern District of New York, asserting that the subpoenas were not valid and should be quashed. The district court ruled against the plaintiffs and in favor of the House committees. The Second Circuit essentially affirmed the district court.
Now both cases are before the Supreme Court. The House committees frame the case as ordinary, not extraordinary. They note that the subpoenas do not seek records relating to Trump’s actions as president. Rather, they assert, the subpoenas pertain to actions taken by Trump and others in their individual (or personal) capacity. Furthermore, they argue, congressional committees routinely seek and receive records from individuals in the course of performing legislative actions, such as, for example, determining whether existing laws are effective or should be revised.
Trump’s lawyers, supported by the Justice Department (which participated in both cases as amicus curiae), argue for broad protection of the President. They say the subpoenas are unprecedented, lack a legitimate legislative purpose, and have been issued as part of an improper law enforcement investigation to determine whether the law was broken.
The D.C. Circuit and the Second Circuit rejected these arguments because the governing cases hold that the bar is low for Congress to show a legitimate legislative purpose and was satisfied here. If the Supreme Court decides to apply precedent, it should affirm the decisions of the federal circuit courts and hold that the subpoenas are enforceable.
The New York District Attorney Case
After the Court hears oral argument in the congressional committee cases, it will turn to Trump v. Vance. As the Second Circuit summarized, this case arose after the District Attorney of New York County began an investigation into “whether several individuals and entities have committed criminal violations of New York law.”
Last year, the district attorney served subpoenas seeking records as part of an investigation into “suspected ‘hush money’ payments made to two women.” One of the subpoenas was served on Mazars and sought, among other things, President Trump’s tax returns.
As in the congressional oversight cases, President Trump elected to contest the subpoenas by filing suit in federal court. According to the Second Circuit, the “President’s complaint asserted a broad presidential immunity from state criminal process” and asked the district court to invalidate the subpoena. As in the other cases, the district court ruled against the President and the Second Circuit affirmed.
Before the Second Circuit, President Trump claimed “temporary absolute presidential immunity”—that is, absolute immunity “from all stages of state criminal process while in office.” The appeals court rejected this claim and “after reviewing historical and legal precedent,” concluded that “presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President.”
The appeals court described the Supreme Court’s decision in United States v. Nixon as “the most relevant precedent” for its decision. It also discussed the Court’s decision in Clinton v. Jones. While the appeals court noted language in that case suggesting the possibility of Supremacy Clause concerns raised by “state control over the President,” it stated those concerns were not implicated here when the subpoena is directed at a third party—an accounting firm—rather than the President himself.
The Political Question Inquiry
In late April, the Supreme Court directed the parties and the Solicitor General in the congressional oversight cases to file supplemental letter briefs “addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of” the congressional oversight cases. (To be clear, no additional briefing was requested in the New York District Attorney case.)
Though they fundamentally disagree on the merits, the lawyers for the parties and the Solicitor General took the same position in their supplemental briefs: The Court should not, they agreed, dismiss the cases on political question grounds.
If the Court posed the questions as a way to avoid deciding those two cases and thereby to not appear to be taking a side in a dispute between the Democratic House committees and the Republican President, it did not get any help from the supplemental briefs. Accordingly, the Court may have to decide the cases on the merits. If the other eight justices vote along ideological lines, Chief Justice Roberts will cast the deciding vote.
The current version of the television show “To Tell the Truth” is scheduled to begin its fifth season later this month, after these three cases are argued. Until the show’s premiere, we’ll have to content ourselves with listening to the oral argument in trying to determine which Chief Justice Roberts will stand up when the justices’ votes are counted.