[Cross-posted at Balkinization.]
Two cases currently before the Supreme Court involve whether the Constitution prohibits subpoenas issued to Donald Trump’s accounting firm, Mazars USA, LLP, requiring Mazars to provide non-privileged financial records relating to Trump and certain of his business entities.
The first of those cases, Trump v. Vance, No. 19-635, involves a subpoena issued to Mazars by a New York grand jury. The U.S. Court of Appeals for the Second Circuit rejected Trump’s constitutional objection, and Trump has petitioned for certiorari. Trump will file his cert.-stage reply brief later today—thereby completing the briefing—and the Court could consider the petition as early as December 6, at the Justices’ next conference. [UPDATE: Here’s the reply brief. Nothing new of note in it.]
The second case, Trump v. Mazars USA, No. 19A545, involves a subpoena the House of Representatives Committee on Oversight and Reform issued to Mazars back in April. (The New York grand jury subpoena is almost identical to, and was patterned upon, the House’s earlier subpoena.) The U.S. Court of Appeals for the D.C. Circuit rejected Trump’s constitutional objection, and Trump will likely petition for cert. in that case any day now. In the meantime, Trump has filed an application to the Chief Justice asking for a stay of the court of appeals’ mandate. If the Chief Justice and/or the Court declines to issue such a stay, Mazars will be required to turn over the records to the House imminently, i.e., upon issuance of the mandate. (The Chief Justice issued an interim “administrative stay” last week to enable the Court to consider the mandate-stay motion.)
The Court will probably issue its decision on Trump’s application for a stay in Mazars shortly, perhaps as soon as today. [UPDATE, evening of 11/25: The Court, without recorded dissent, granted the application to stay the mandate, and gave Trump until noon next Thursday, December 5, to file his petition. The House should be able to file its opposition in time for the Court to consider the petition at its December 13 Conference.]
There’s a third, related case, too, which hasn’t yet reached the Court but might be there soon: In August, the U.S. Court of Appeals for the Second Circuit (Hall, Livingston & Newman, JJ.) heard oral argument in Trump v. House Committee on Financial Services, which involves Trump’s constitutional challenge to subpoenas that two House committees issued to two of Trump’s banks (Deutsche Bank and Capital One), requiring them to turn over financial records of Trump and two of his children. The court of appeals still has not issued its decision in that case, but when it does so the losing party almost certainly will quickly ask the Supreme Court to hear that case, too.
In this post, I’ll address three things: (i) the importance of the three cases; (ii) the weakness of Trump’s constitutional arguments in the two Mazars cases before the Court; and (iii) what the Court is likely to do with those two cases.
How Important Are the Cases?
The parties agreed to expedited briefing at the cert. stage in the Trump v. Vance case; and as the New York District Attorney has told the Court, “[e]xpeditious resolution of the petition for certiorari, and if necessary, the merits of this dispute, is essential to avoid further disruption of the grand jury’s ongoing investigation.” For purposes of the current national examination and understanding of the President’s conduct, however, Trump v. Vance is the least significant of the cases because the information Mazars provides to the grand jury will almost certainly stay in the grand jury: Just as under federal law, New York law mandates strict secrecy with respect to matters and information before a grand jury. See N.Y. Crim. Proc. Law § 190.25(4)(a).
Trump v. Mazars is potentially of far greater immediate, practical significance. More than perhaps any other president, Donald Trump has extensive financial holdings and has been conspicuously and idiosyncratically unwilling to disclose to Congress and to the public any details of his financial affairs and entanglements. He also has a predilection for cozying up to, and (wittingly or unwittingly) doing the bidding of, foreign autocrats from nations hostile to the United States—one of which just so happens to have made elaborate efforts to distort the American electoral system in order to help get Trump elected.
Naturally, then, the House of Representatives is interested in learning about Trump’s possible conflicts of interest, whether he’s complied with the laws designed to prevent such conflicts (including the Foreign Emoluments Clause of the Constitution), and the ways, if any, in which the exercise of his duties on behalf of the nation might be compromised by his relations with foreign entities and nations, or by his other financial entanglements.
Such matters are, in fact, of far greater potential importance to the ongoing impeachment proceedings than would be the testimony of additional, reluctant witnesses, most of whom would simply corroborate the current factual understanding of the machinations that occurred with Ukraine—a narrative that is essentially uncontested.
The House subpoenas to Mazars, Deutsche Bank and Capitol One are designed to try to help shed light on the President’s motives, conflicts and foreign entanglements (if any)—not only to help explain past conduct but, much more importantly, in order to assess whether and to what extent he is compromised in his continuing role as President and chief diplomat. Accordingly, the Mazars case (and potentially the Deutsche Bank/Capitol One case) is very important.
How Difficult are the Merits of the Constitutional Questions in the Mazars Cases?
Not very . . . I hope.
Neither Mazars case raises any thorny issues—indeed no issues at all—of executive privilege or the alleged immunity of any officials from legislative process. Neither case involves any inquiry into Trump’s official conduct as President. Nor does either case involve an unwilling recipient of a subpoena: Mazars has explained that it’s ready and willing to comply—only Trump’s own lawsuits against Mazars (in his personal capacity) have delayed that ordinary response to legal process.
Trump v. Vance
In the New York grand jury case, I think it’s fair to say that Trump’s argument is quite radical—namely, that a state grand jury is categorically barred from investigating, or obtaining evidence about, a sitting president, no matter how serious the crimes the grand jury is investigating, how unrelated the evidence in question is to the President’s conduct of his official duties, how important the evidence might be to the grand jury’s deliberations, and even if the statute of limitations on the crimes might be fast-approaching.
I don’t have much to add to Chief Judge Katzmann’s convincing opinion for the court of appeals explaining why that argument has no basis in law. (As Katzmann notes, the Supreme Court in U.S. v. Nixon already unanimously rejected such a presidential immunity claim with respect to federal grand juries—even where, as in the Nixon tapes case itself, the investigation involved the President’s actions qua President in the Oval Office. The Vance case merely raises the question whether anything about that precedent changes by virtue of the fact that here the subpoena comes from a state, rather than a federal, grand jury. For the reasons Chief Judge Katzmann offers, the answer ought to be “no.”)
It’s certainly noteworthy that in an amicus brief he filed last week, nominally in support of Trump, the U.S. Solicitor General rejects Trump’s argument that a state grand jury is categorically barred from investigating, or obtaining evidence about, a sitting president. The SG’s brief thus reaffirms just how groundless Trump’s argument is.
Solicitor General Francisco offers the Court an alternative argument—namely, that a grand jury can only obtain such information about a sitting President upon a showing that it has a “particularized need for the evidence” and that it can’t obtain the evidence from other sources.
Such a showing probably wouldn’t be hard for the New York grand jury to satisfy here, although of course, because of grand jury secrecy, we have no way of knowing for certain.
In any event, the SG’s proposed heightened showing also lacks any constitutional basis. The SG doesn’t cite any text, history, or precedent in support of his proposal. It is, instead, predicated entirely on a single functional consideration—the notion that a state grand jury subpoena could “impose substantial burdens on the President’s … discharge of his constitutional duties.”
The SG is right about that: A particular grand jury subpoena might conceivably impose such a substantial burden on a President’s discharge of his or her constitutional duties—just as a private lawsuit against the President for his pre-presidential acts might do so. That’s why, as the Court noted in Clinton v. Jones, a recent case involving such a private suit, the “high respect that is owed to the office of the Chief Executive * * * should inform the conduct of the entire proceeding, including the timing and scope of discovery.” If and when a state court is (for the first time in our history) unduly insensitive to such considerations, the federal judiciary would undoubtedly step in to protect the President’s official functions.
The Solicitor General, however, doesn’t identify a single way in which this particular subpoena to Mazars could possibly impose any burdens, let alone “substantial” burdens, on President Trump’s “discharge of his constitutional duties”—because of course it doesn’t do so. Indeed, any hypothetical burdens here on the President’s performance of his duties would obviously be far less intrusive than those imposed (and that potentially loomed) in the Paula Jones case itself. If the burdens in Jones weren’t enough to preclude discovery—nor even to prelude a trial—and didn’t require the sort of heightened showing the SG asks for in Trump v. Vance, then the much less significant (i.e., nonexistent) burdens raised by the Mazars subpoena likewise don’t raise any serious constitutional concern.
Trump v. Mazars
In the case involving the House subpoena to Mazars, Trump’s claim is entirely predicated on the alarming argument that, outside the context of impeachment, Congress lacks any constitutional authority at all to investigate a sitting President’s possible conflicts of interest and violations of law.
Yes, you read that right—Trump insists not only that Congress lacks the authority to compel a third-party custodian to share records relating to the President, but that the Constitution doesn’t even provide Congress with the authority to ask any party to voluntarily provide records about the President (as Judge Millett put the point during the oral argument in Mazars, the logic of Trump’s argument is that the House Oversight Committee couldn’t even send a “polite letter” to the President asking for information) because Congress lacks authority to investigate the President in the first place. (That implication of Trump’s argument is made plain by another suit Trump has filed—now pending before Judge Nichols in the District Court for the District of Columbia—seeking an injunction that would prohibit the Ways and Means Chairman from even requesting the New York government to furnish Trump’s state tax returns and from reviewing or using such tax information if New York voluntarily tenders it to the Committee.)
Although not quite as extreme as the argument Judge Rao offered in her dissent in the D.C. Circuit—an argument that Trump’s lawyers wisely do not press at the Supreme Court*—Trump’s argument about the alleged limits on Congress’s investigative authorities would, if credited, be a radical departure from our constitutional history and tradition.
In an earlier post I explained in some detail why that’s so. I won’t repeat those explanations here except to stress, as did Judge Tatel in his opinion for the D.C. Circuit, that Congress has often investigated potential wrongdoing by Presidents. That practice goes back at least to 1832, when a House select committee investigated, inter alia, whether President Jackson approved or allowed Secretary of War John Eaton’s potentially fraudulent contract for supplying rations to Native Americans. And it includes such well-known modern investigations as Iran/Contra, Whitewater, and, perhaps most notably, the “Ervin Committee” investigation of the Watergate break-in and cover-up in 1973. As far as I know no one, during any of these contentious investigations, ever suggested that Congress lacked the constitutional authority to inquire into the President’s potentially wrongful conduct. Yet Trump’s argument in the Mazars case is just that.
What is the Court Likely to Do?
Because the merits of Trump’s objections in the two cases are so weak, I hope that, if the Court ever reaches the merits, it will unanimously reject the claims, just as it did in United States v. Nixon and in Clinton v. Jones, both of which involved claims about protecting the President’s functions that were more compelling than those Trump raises here.
But will the Court grant the certiorari petitions—and, before that, Trump’s application for a stay of the mandate in the Mazars case?
I agree with Steve Vladeck that it would not be at all surprising if the Court, simply as a matter of comity to the President, grants the motion to stay the mandate. [UPDATE: It did so.] Nor would I be surprised if the Court, for the same reason, grants the petitions themselves. If it does so, it would be a mistake to read too much into such grants: As I explained above, the Court should still reject the claims on their merits, as it did unanimously in Nixon and in Jones.
* * * *
It’s possible, however, that the Court might not grant the petitions—and even that the Chief Justice might deny Trump’s application to stay the mandate in Mazars. Indeed, there’d be recent precedent for such denials. In 1998, the Court twice denied petitions filed to protect the President’s constitutional functions in connection with the investigation of President Clinton.
The first case involved a petition filed by the Solicitor General arguing that the Court should recognize a “protective function privilege” for testimony of Secret Service Agents assigned to protect the President. The SG sought a stay of the court of appeals’ judgment, requiring the Agents to testify, but Chief Justice Rehnquist denied it on July 17, 1998. 524 U.S. 1301. He explained that “a stay applicant must also show that there is a likelihood that this Court, having granted certiorari and heard the case, would reverse the judgment of the Court of Appeals.” The SG, according to Rehnquist, “simply has not made that showing to my satisfaction, and I believe my view would be shared by a majority of my colleagues” because “[t]he opinion of the Court of Appeals seems to me cogent and correct.” That’s true of Judge Tatel’s opinion in Mazar’s, too—and, therefore, perhaps Chief Justice Roberts will follow Rehnquist’s example.
On November 9, 1998, the Court denied the SG’s cert. petition, 525 U.S. 990, even though (as Justice Breyer explained in dissent) the Court of Appeals had conceded that the question was important and “fairly disputed,” and even though “former President George Bush, several past and present directors of the Secret Service, and all of the now-living former Special Agents in Charge of the Secret Service detail assigned to protect the President presented statements . . . declaring that the absence of a privilege will cause the President to lose trust in his agents and keep them at a distance.”
The second case involved petitions filed by the President and the Office of the President challenging rulings denying assertions of attorney-client privilege regarding certain Executive Office communications by Deputy White House Counsel Bruce Lindsey. One again, Chief Justice Rehnquist denied an application for a stay of the mandate pending the filing and disposition of a petition for a writ of certiorari, 1998 WL 438524, and, once again, on November 9, 1998, the Court denied certiorari, 525 U.S. 996, even though, as Justice Breyer noted in dissent, the “divided decision of the Court of Appeals ma[de] clear that the question presented by th[e] petition ha[d] no clear legal answer and is open to serious legal debate,” and even though “[b]oth parties agree[d] that the question presented [wa]s important and warrant[ed] this Court’s attention.”
These examples involving President Clinton offer at least some basis for the prospect that Chief Justice Roberts might deny the stay in Mazars, and/or that the Court might deny either or both of the petitions. Indeed, although I agree with the court of appeals in the Clinton cases that the asserted privileges there were meritless–in particular, although I think it’d be a fine idea for Congress to craft some sort of privilege for Secret Service Agents, I don’t think there currently is one–the arguments in favor of privilege in those cases were stronger than those here. (In their reply brief on the stay motion, Trump’s lawyers state that the 1998 cases are distinguishable because they allegedly did not “involve[] the President himself.” I confess to not understanding what that means. There, as here, the subpoenas were directed to third parties, rather than to the President, and they concerned information about the President (indeed, in those cases, about Clinton’s conduct in office). And there, as here, the objections to the subpoenas—including in one petition filed by Bill Clinton himself—were premised on a need to protect the President’s Article II functions and responsibilities.)
There’s yet another compelling reason for the Court to deny cert. in Mazars, too–namely, that on anyone’s theory, even Judge Rao’s (see footnote below), now that the House has initiated something it has formally designated an “impeachment inquiry,” it is constitutionally empowered to compel Mazars to share the information in question, which obviously might be of great relevance to that inquiry. That has rendered moot any conceivable immediate, practical need for the Court to resolve the question of the scope of Congress’s oversight and “informing” functions in other contexts, where impeachment isn’t in the picture.
* * * *
If the Court grants the motion to stay in Mazars, the important things to look for will be any clues as to whether a majority of Justices wish to resolve that case quickly, in time for the Mazars documents, if relevant, to be of potential use in the ongoing impeachment proceedings—either before the House votes on Articles of Impeachment (which is very unlikely, given that the House will likely do so in the next three or four weeks) or (much more likely) before the Senate trial.
In particular, watch for answers to these questions:
— Does the Court expedite the cert.-stage briefing in Mazars so that it can consider the petition at its December 13 Conference? (The House has urged the Court to do so, and Trump’s lawyers have represented to the Court that they “are prepared to proceed on any schedule that the Court deems appropriate should the stay pending certiorari be granted.”) [UPDATE: The Court has done so, thereby giving itself the opportunity to rule on the petition at its December 13 Conference.]
— Does the Court rule on the petition in mid-December? (Some Justices might be inclined to want to wait to see what the Court of Appeals for the Second Circuit says in the Deutsche Bank case–all the more reason the judges in that case should try to issue their decision ASAP.)
— If it grants the petition, does the Court also expedite briefing on the merits—which would be a sign that it hopes to resolve the merits in a timely way that might be of practical use to the House and Senate? Or does the Court adhere to an ordinary briefing schedule, in which case it likely won’t resolve the case until late June, long after the Senate trial is over?
________________________________
* Judge Rao reasoned that Congress cannot investigate possible wrongdoing of any impeachable officer—not a judge, not an executive branch official—unless and until it formally approves something called an “impeachment inquiry.” For good and obvious reasons, even Trump’s lawyers are not asking the Supreme Court to embrace Judge Rao’s even more extreme argument. After all, the Court has repeatedly affirmed the obvious point that Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government” (Watkins v. U.S. (1957)).