Trump v. Mazars USA, LLP

No. 19-715 - Argued May 12, 2020
At Issue

Whether congressional subpoenas of the President’s personal financial records from a third-party custodian either violates Article II or exceeds the scope of Congress’s legislative authority under Article I of the Constitution?

Advocates
  • Patrick Strawbridge, for the petitioners
  • Jeffrey B. Wall, for the United States, as amicus curiae, supporting reversal
  • Douglas N. Letter, for the respondents
Background and Case Commentary

Trump v. Mazars, which also included the consolidated case Trump v. Deutsche Bank, (No. 19-760), involved subpoenas by several House of Representative committees served on Mazars USA, Deutsche Bank, Capital One, and other entities seeking various financial documents and tax records related to President Trump and his affiliates. The House of Representatives asserted that the subpoenas were issued to inform current and proposed legislation relating to banking, money laundering, foreign influence, conflicts of interest, and other subjects. However, some committee members appeared to acknowledge that the subpoenas were also aimed at uncovering wrongdoing by President Trump. After the Mazars and the other entities expressed their intent to comply with the Committees’ request, President Trump filed for injunctive relief, arguing that the subpoenas unduly interfered with his Article II responsibilities and exceeded the scope of Congress’s Article I powers.  In a 2–1 decision, a panel of the United States Court of Appeals for the District of Columbia rejected the President’s argument. On April 27, the Supreme Court requested supplemental briefs.  Specifically, the Court’s order stated that, “The parties and the Solicitor General are directed to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.”

During oral argument, none of the justices talked about original meaning, nor, for that matter, did anyone mention the political question doctrine, much less address its possible application to the case.  Although President Trump had referred to Justices Gorsuch and Kavanaugh as being in the mold of Justice Scalia because all three shared adherence to original meaning, and although the Court requested supplemental briefing on the applicability of the political question doctrine, it appears likely that the Court will decide this case on different grounds.  Specifically, because the Court’s unanimous opinions in Clinton v. Jones and United States v. Nixon already provide apposite precedent, the main question is how relevant the precedents are, and in what ways they are relevant, rather than how the parties would look to original meaning or the political question doctrine in their absence.  Indeed, in the arguments in this case, Chief Justice Roberts observed that, “It seems like at the end of the day, this is just another case in which the courts are balancing competing interests.”   

To make their arguments, however, both Counsel for petitioners, Mr. Strawbridge, and Deputy Solicitor General Wall mischaracterized a number of relevant precedents including these.  Mr. Strawbridge argued that the House had failed to show “demonstrably critical need” for the documents it had subpoenaed. Deputy Solicitor General Wall insisted that the House had failed to describe with “sufficient specificity” the legislation that its subpoenas would help illuminate.  They even cited Justice Antonin Scalia’s solo dissent in Morrison v. Olsen as the pertinent authority for President Trump’s position and Mr. Strawbridge’s arguing that the D.C. Circuit’s 1974 decision in Senate Select Committee supported requiring the House committees to show “demonstrated critical need” for the documents.  In making these arguments, they ignored the facts that (1) in that case, the court had relied on this standard for overcoming executive privilege and President Trump has not asserted executive privilege in the present case; and (2) the United States Supreme Court unanimously declared in U.S. v. Nixon that the standard for overcoming executive privilege was “demonstrated specific need.”  

Mr. Letter, the Counsel for the House of Representatives, whether by design or mistake, failed to articulate a clear standard that the Court should use for assessing the legitimacy of the challenged subpoenas.  He had a number of opportunities to propose one, and his repeated failure to do so was surprising given that everyone could have predicted this issue would have arisen in the case. His silence when asked for a standard almost certainly hurt his side.  I offer different responses to questions from Chief Justice Roberts and Justice Kavanaugh.

Trump v. Mazars USA, LLP on Oyez: https://www.oyez.org/cases/2019/19-715

Key Questions from Oral Argument

Chief Justice Roberts to Respondents (49:00): Mr. Letter, the -- let's talk about the standard you propose. The -- the -- the quotes in your -- your brief is that concern is 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?

Michael Gerhardt: Yes, Chief Justice Roberts, I can give you several plausible examples of subjects beyond any legislation that Congress could write. First, Congress does not have the authority to enact legislation that would mandate the kinds of food that people, including presidents, may eat, and therefore the House could not subpoena the President’s medical records to determine whether he is eating properly. Nor could Congress enact legislation mandating that states outlaw divorce settlements and therefore it could not subpoena the President’s divorce settlements. Your Honor, the applicable standard of legitimate legislative purpose is broad because Congress has correspondingly broad legislative authority. That standard allows the Court to do what it does best—balance competing considerations. In this case, the Court could take many factors into consideration including the broad authority of Congress, the need for the information or documents, the actual burdens placed on the President’s time, and any applicable privileges.

Justice Kavanaugh to Respondents (1:14:22): “[T]he question then boils down to, how can we both protect the House's interest in obtaining information it needs to legislate but also protect the presidency? How can the Court balance those interests? I guess the thing I would say is why not employ the demonstrably critical standard or something like that -- this is what the other side would say -- as something that's borrowed from a different context but that might serve to balance the strong competing concerns here?”

Michael Gerhardt : Thank you, Justice Kavanaugh, for your question. The case does boil down, as you say, to what standard this Court should use for assessing the legitimacy of the subpoenas challenged here. As I have noted before, it is well settled that the standard is “legitimate legislative purpose.” It is not “demonstrably critical” need, because that standard is not the law and has no place here. It was used only once by the D.C. Circuit as the standard to be met in overcoming claims of executive privilege. President Trump has never asserted executive privilege in this case, nor could he, since the requested documents were completed by third parties before he ever even became a candidate for office. And the Court has, in any event, unanimously declared that the standard for overcoming presidential claims of executive privilege is “demonstrated specific need.” But, your Honor, it makes no sense to use that standard in a case, like ours, where no one has asserted claims of executive privilege and no one could. A different standard must and does apply here, “legitimate legislative purpose.” Any higher standard would effectively destroy Congress’ unique role in making policy for the federal government, because the higher standard would enable the President and the Court each to determine for Congress when it is properly considering legislation. The principal check on Congress is the political accountability of its members. It is neither this Court’s nor the President’s disagreements over the suitability of the policies it is fashioning.

Contributors

Michael Gerhardt