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The Supreme Court decimated Congress’ investigative power. Or it reinforced it. Or it totally punted.
Interpretations of last week’s bombshell ruling in the House’s effort to obtain President Donald Trump’s financial records have polarized the legal community and lawmakers, leaving behind uncertainty about the balance of power between Congress and the president at one of the most sensitive moments in U.S. history.
“It's definitely a Rorschach opinion,” said Rep. Jamie Raskin (D-Md.), a member of the House Judiciary Committee and a former constitutional law professor. “You can draw out different strands and take out completely different messages.”
The Supreme Court ruling effectively delayed the House’s effort to obtain Trump’s financial records from his accounting firm, Mazars USA, as well as Deutsche Bank and Capital One. The justices indicated that lower-court rulings upholding the House’s subpoenas had failed to fully scrutinize whether the demand for the president’s personal financial data is an incursion on the separation of powers.
Now, the House’s top lawyer, Doug Letter, is asking the justices to quickly put their ruling into force so the parties can revisit the matter with lower courts.
The high court’s ruling is unlikely to deter the House’s investigative efforts in the immediate future. In fact, it might accelerate them as Congress tests the new parameters defined by the Supreme Court.
Yet without direction, Democrats and Republicans have drawn starkly different conclusions about the court’s message, and the legal community is still grappling with its implications.
For example, House Republicans on the Judiciary Committee cited the ruling to accuse Chairman Jerry Nadler (D-N.Y.) of conducting “illegitimate” oversight of Attorney General William Barr’s actions.
And a former top lawyer for the House, Thomas Hungar — who helped engineer a successful legal drive to subpoena information from Fusion GPS, the firm that commissioned the infamous Trump dossier — said the Supreme Court’s ruling could jeopardize future investigative efforts.
"The Court’s decision is another illustration of the principle, ‘be careful what you ask for,’” Hungar said in a statement. “Legitimate congressional oversight will likely be hindered over the long term as a result of this unfortunate strategy call."
While Democrats push forward with the effort to obtain Trump’s financial records, legal observers are torn over the broader implications of the ruling.
On one hand, the justices cemented Congress’ power to issue and enforce subpoenas — a power challenged by the Trump administration. On the other, they chipped away at the outer limits of the information Congress can demand for the first time in decades, a rollback that some legal experts warn is a road map for Trump and future presidents to evade congressional scrutiny.
Some legal minds even say the ruling could become a broader excuse for individuals and companies to resist congressional subpoenas, even as House Democrats and aides say the ruling should apply only to a narrow set of confrontations between Congress and the president.
In short, the Supreme Court has raised, rather than answered, questions about the checks and balances that have kept the country on course since its founding. And the only way to resolve them may be with future legal clashes.
To determine whether a request for the president’s records is proper, the high court’s majority laid out a four-part test to determine whether the information lawmakers are seeking is necessary to support legislation and whether their demands are tailored narrowly and justified with specifics to ensure that they’re not simply on a fishing expedition to embarrass the president. But the test is ambiguous, leaving it to individual judges to interpret. And it raises the amorphous notion that “other considerations” may factor into their determinations.
Some legal experts said the high court ruling could have an even broader impact on congressional power, potentially creating hurdles even for investigations aimed at private individuals or businesses.
Those concerned the ruling will impede future congressional investigations pointed out language in the court’s test that requires subpoenas be “no broader than reasonably necessary,” a restriction that could invite challenges to almost any future inquiry. And some judges, they note, will be less forgiving than others in determining whether Congress has met its burden to justify a subpoena.
“This is going to spawn people challenging congressional subpoenas,” said Stan Brand, another former House counsel. “You’re going to throw that out like a mantra — ‘Show me why you need it’ — even if you’re not the president.”
“There is a lot in there for lawyers who represent clients in congressional investigations to chew on,” added Michael Stern, a former House lawyer.
To House Democrats though, the most consequential part of the court’s ruling is its flat declaration that Congress’ power to investigate should be both robust and enforceable. Any limits set by the ruling apply only to the exceedingly rare case when Congress seeks a president’s personal documents from a third-party company like Mazars, they say, and are not applicable to more traditional efforts to obtain official documents from the executive branch.
And the Supreme Court did something else that heartened Democrats: It carved out a role for the courts to consider the validity of subpoenas. The Trump administration has been arguing in court for months that judges have no role resolving disputes over congressional subpoenas of the executive branch and even questioned Congress’ ability to subpoena at all.
That argument became most pronounced in the House’s fight to obtain testimony from former White House counsel Don McGahn. A three-judge panel of the powerful U.S. Court of Appeals for the D.C. Circuit issued a 2-1 ruling in February accepting the Justice Department’s longstanding claim that courts have no role in resolving such disputes. The House has asked the full bench of the appeals court to reconsider that critical holding, but the court has not yet acted on the request.
A top House aide indicated that the House may now be better positioned to prevail in that case than it was before.
The very fact that the justices — led by Chief Justice John Roberts — sought to set a standard for courts to use in resolving such fights seems to suggest that a majority of the high court believes congressional subpoenas targeting executive branch information can be enforced in court. But the Supreme Court stopped short of directly answering the central question in the McGahn case: whether such battles belong in court at all.
Still, the four-part test the justices did set out could help guide future investigative efforts, ensuring that subpoenas are designed to meet the burden established by the Supreme Court and therefore won’t simply be ignored.
“Now there are balanced guidelines for getting it from Trump or other future presidents when necessary, not to mention a ruling upholding Congress’ oversight power,” said Norm Eisen, a former counsel to the House Judiciary Committee.
Raskin also emphasized that the test was so “mushy” that it would almost certainly end up back before the Supreme Court again and could ultimately be tossed as unenforceable.
“The fate of most multifactor balancing tests is oblivion because the court ends up saying that it is completely indeterminate and useless,” he said.
One area of broad agreement is that Congress may need to set up a more formal mechanism to negotiate with the executive branch on demands for information. A formal process for such negotiations could help expedite them and ensure that there’s a formula for disputes that doesn’t require going to court to resolve, except as a last resort.
“Congress needs to consider building more structure into its oversight/subpoena process so as to provide the parties an opportunity to reach an accommodation on information requests before reaching the stage of contempt/litigation,” Stern said.
Stern also said Congress needs to get more serious about using other, more aggressive avenues to demand information, such as invoking impeachment or even the House and Senate’s power to imprison or fine recalcitrant witnesses.
In addition, some pointed to efforts by lawmakers to require the courts to prioritize congressional subpoena disputes as a method for confronting the challenging of resolving fights within the confines of a two-year congressional term.