Symposium: Mazars and Vance may be political blockbusters, but they aren’t legal ones
on Mar 10, 2020 at 10:01 am
Brianne Gorod is chief counsel and Ashwin Phatak is appellate counsel at the Constitutional Accountability Center, which filed an amicus brief in support of the respondents in Trump v. Mazars, as well as an amicus brief on behalf of former Department of Justice officials in support of the respondents in Trump v. Vance.
In three weeks, the Supreme Court will hear two oral arguments in cases involving subpoenas for the president’s financial records. These cases may be political blockbusters, but they shouldn’t be legal ones. Although these cases are different in important ways, at bottom, both are about the simple question of whether investigating bodies—congressional committees in one and state grand juries in another—can access the information they need to make critical decisions about, respectively, the wisdom of proposed legislation and whether and against whom to issue indictments. The answers to the questions presented in both cases are clear: The investigating bodies have a right to the information they seek.
The consolidated cases Trump v. Mazars and Trump v. Deutsche Bank concern a set of congressional subpoenas for various financial records concerning President Donald Trump, his family and his businesses. There’s nothing novel about Congress’ engaging in an investigation or issuing subpoenas. Indeed, legislative oversight predates the nation’s birth, and Congress has been exercising its oversight authority since the earliest days of the Republic.
Consistent with that history, the Supreme Court has long held that the scope of Congress’ investigatory power is coextensive with the scope of its power to legislate. As the court has explained, Congress’ power to investigate encompasses “inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes,” and it includes “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”
Congress’ power to investigate is broad because it needs a wide array of information before it chooses whether and how to exercise one of its most significant powers: the power to legislate. As the court has observed, “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” And, explaining how investigative bodies do their work, the court has noted that “[t]he very nature of the investigative function—like any research—is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.” In short, Congress is empowered to search far and wide for all relevant information as it considers whether to legislate in a particular area.
Here, the House committees that issued the relevant subpoenas have plainly shown a valid legislative purpose. First, after hearing substantial evidence that Trump may not have complied with certain financial disclosure requirements, and that he may have conflicts of interest that could affect his ability to make impartial decisions as president, the Oversight Committee subpoenaed Mazars, Trump’s accounting firm, for financial records and other documents relating to Trump and his businesses. This information would help Congress decide whether to pass legislation related to a president’s conflicts of interest or financial disclosures, including whether the president is complying with disclosure requirements in the Ethics in Government Act of 1978, and whether that law or other laws should be strengthened. Similarly, the Financial Services Committee subpoenaed financial records from Deutsche Bank and Capital One, two of Trump’s creditors, following reports of questionable financing provided to Trump and his businesses as part of the committee’s investigation into whether and how to strengthen federal banking laws, particularly with respect to lending practices and the prevention of money laundering and loan fraud. Finally, the Intelligence Committee subpoenaed financial records from Deutsche Bank to further the committee’s investigation of Trump’s entanglements with foreign entities following reports of decades of intersection between Trump’s business interests and Russia-linked entities, and whether and how to legislate to prevent future foreign interference.
Trump has argued to the court that the real purpose of these investigations is to conduct what he sees as law enforcement—that is, determining whether Trump or others have broken the law. But the Supreme Court’s precedents foreclose that argument. As the court has said, “surely a congressional committee which is engaged in a legitimate legislative investigation need not grind to a halt … when crime or wrongdoing is disclosed.” Holding otherwise would mean that Congress couldn’t even investigate illegal conduct before it passes criminal laws—a notion that defies all common sense. In short, a congressional committee is entitled to all relevant information before choosing to legislate, even if the information it uncovers may also reveal illegal conduct.
In the same breath that Trump is arguing that these congressional subpoenas are invalid because they might reveal illegal conduct, he is arguing in a different case that a state grand jury cannot obtain his financial records as part of a legitimate criminal investigation. In Trump v. Vance, the president maintains that he enjoys an absolute immunity from all criminal process—an immunity so sweeping that it not only prevents him from being indicted or criminally prosecuted while in office, but also prevents a third party like Mazars from complying with a pre-indictment grand-jury subpoena simply because the matters under investigation pertain to the president.
The Supreme Court’s precedents do not support so broad a theory of presidential immunity. Rather, the court has explained that any claim of presidential immunity must be subject to a balancing test that weighs the importance of the judicial process at issue against any effect on the president’s ability to fulfill his constitutional functions. Thus, for instance, in United States v. Nixon, the Court understood “the importance of … confidentiality of Presidential communications in performance of the President’s responsibilities” when it considered the disclosure of the Watergate tapes. But in the end, the court believed that the judicial “need to develop all relevant facts in the adversary system” outweighed that consideration, and it ordered President Richard Nixon to deliver the tapes to a federal district court. Similarly, in Clinton v. Jones, the court understood that there would be some distraction if a president could be civilly sued for unofficial conduct while in office, but decided that the importance of courts’ “exercis[ing] their core Article III jurisdiction to decide cases and controversies” outweighed that interest, and permitted a civil trial to go forward against President Bill Clinton.
In Vance, Trump has failed to show that Mazars’ compliance with the state grand-jury subpoena would impair his ability to fulfill his constitutional duties. After all, it is Mazars that must comply, not the president, and the president is not required to do anything. Moreover, Mazars’ compliance with the subpoena will not require the same energy and attention—if it requires any attention of the president at all—as would defending oneself in a civil trial. Further, the stigma associated with complying with a grand-jury subpoena is far less than the stigma of criminal indictment, and less even than being named as an unindicted coconspirator—something that happened to Nixon in the Watergate tapes case.
On the other side of the equation, there are strong reasons to ensure that grand juries can fulfill their investigative function by gathering all the evidence they need before determining weighty issues like whether and whom to indict. As the Supreme Court has explained, because the grand jury’s “task is to inquire into the existence of possible criminal conduct and to return only well founded indictments, its investigative powers are necessarily broad.” Said another way, the grand jury “is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.” Constraining the ability of the grand jury to subpoena all relevant documents would thus hamper its important constitutional role.
The president argues that the Department of Justice’s past memoranda and briefs support his position, but DOJ has at most taken the position that the president is immune from indictment and prosecution, not pre-indictment grand-jury subpoenas, especially when those subpoenas target a third-party accounting firm. In fact, DOJ has acknowledged the importance of allowing a grand jury to continue to fulfill its investigative function while a president is in office. As the Office of Legal Counsel noted in a 2000 memorandum, although a president may be immune from indictment, “[a] grand jury could continue to gather evidence throughout the period of immunity,” and so postponing indictment would not lead to “a prejudicial loss of evidence in the criminal context.” Thus, even DOJ has acknowledged the important goals served by ensuring that a grand jury can continue to exercise broad investigative powers.
In short, the court’s precedents make clear that the powers of Congress and grand juries to investigate are broad, and the court should uphold the subpoenas in these cases. And that would be a good thing—the court’s answer in each of these cases not only will determine whether these congressional committees and this grand jury can access these financial documents, but also could affect the ability of all future congressional committees and grand juries to properly carry out their important investigative functions.