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Symposium: Separation of powers and federalism should guide the justices to protect the presidency and the courts from politicized investigations

Lawrence Joseph is a private attorney who filed an amicus brief for the Eagle Forum Education & Legal Defense Fund in support of the petitioner in Trump v. Vance and Trump v. Mazars.

Eagle Forum Education & Legal Defense Fund filed an amicus curiae brief in the president’s three tax-return cases to encourage the Supreme Court to protect the presidency from politicized investigations and to encourage the court to extricate the federal courts from the politics of these fights. While the Eagle Forum ELDF brief supports the president’s arguments, the brief also raises a potential jurisdictional issue (which might provide the court a way out) and shifts the emphasis of the arguments.

One general, overarching principle that supports several of Eagle Forum ELDF’s specific arguments is the canon of constitutional avoidance: Courts should try to decide cases on narrow, nonconstitutional grounds if possible. That approach may leave important issues for later, or the parties may relent or may accommodate each other. Either way, the system would be working.

If the court must reach the merits in these cases, it should rule for the president. The procedural and separation-of-powers issues in these cases transcend today’s politics. It is important to our constitutional system that the presidency function without distraction or harassment. On that score, it is telling that before the court are not one but three cases.

The House committees lack the power to subpoena the president

In the House cases, Trump v. Mazars and Trump v. Deutsche Bank, the president’s last argument was Eagle Forum ELDF’s first: The court should simply hold that the committees lack the House’s assumed power to subpoena the president. (This would be an example of the canon of constitutional avoidance.) The court has held that the two chambers of Congress have the implied power to issue subpoenas in support of their legislative function. But, just as individual legislators or even committees lack standing to enforce the laws that their bodies pass, a mere committee lacks the power of the full House unless the House has delegated that power to the committee.

The closest the House rules come to addressing the issue is to delegate to a single committee (the House Oversight Committee) the power to issue subpoenas to the “Executive Office of the President.” The EOP is a well-understood term that includes various offices around the president, but not the Office of the President. By giving only one committee the House’s implied subpoena power over the EOP, the House rules suggest that the other House committees have no such authority. And by confining the House Oversight Committee’s delegated subpoena power to the EOP, the House rules suggest that the House Oversight Committee’s power does not reach further to the Office of the President, much less to the president himself.

A holding along these lines would send the issue back to the House committees. Maybe they would obtain the full House’s authority by a resolution or by a rule amendment. Or perhaps the parties would reach an accommodation, obviating future fights. Some of these possible outcomes would avoid the need for the court to decide whether Congress has the constitutional power to subpoena the president’s personal records outside of the sole express power of impeachment.

By analogy, the first House of Representatives demanded documents from President George Washington’s cabinet, the president resisted and the House accommodated the president’s resistance with a revised request. Although the 116th House likely does not respect this president as much as the first House respected that president, a reviewing court should decide based only on the same presidential office, regardless of who is occupying it.

The subpoenas are unenforceable as law-enforcement efforts

Although the House has the implied power to issue subpoenas in support of its legislative efforts, that implied power does not extend to the House’s – much less a House committee’s – acting in a law-enforcement capacity. Instead, the House has only one law-enforcement function, and it is an express power: the power to impeach a president. The implied power does not displace the sole and express criminal enforcement power that the Constitution gives the House.

New York County’s District Attorney Cyrus Vance fares no better. In the third case, Trump v. Vance, he makes many arguments as follows, which do not apply to this situation: (1) Presidents can be subpoenaed as witnesses, but President Donald Trump is clearly a target of the investigation; (2) presidents can be sued for private civil harms in federal court, but Vance seeks documents for a public harm in a criminal case in state court; (3) courts can – per Supreme Court authority – trust U.S. attorneys to pursue cases in the public interest, but that does not apply to every county district attorney, many of whom have launched politically motivated attacks; (4) federalism protects state and local actions within the historic powers of those levels of government, but the protected field is the federal field (prosecuting presidents) not a state or local one (prosecutions generally), and that federal field has no history of state and local activity; and (5) government is entitled to a “presumption of regularity,” but this is no ordinary case, and several facets of the case raise troubling questions. In short, if Vance thinks that the president committed a crime, he needs to wait until the president leaves office to pursue it. Otherwise, every future president could face prosecutions and subpoenas from disaffected corners of the country.

The House subpoenas lack a legislative purpose

If Congress has the implied power to subpoena the executive branch, that power is implied from Congress’ power to legislate. This means that Congress cannot use its implied subpoena power for other purposes, such as law enforcement or – potentially – opposition research. As Chief Justice John Roberts held in Department of Commerce v. New York, quoting the eminent Judge Henry Friendly, for whom he clerked, the court is “‘not required to exhibit a naiveté from which ordinary citizens are free.’” These subpoenas appear to have nothing to do with legislation, beyond a pretext. And maybe not even that.

The Supreme Court should withdraw the federal judiciary from these inter-branch fights

Finally, Eagle Forum ELDF’s brief also suggests that the court deem such inter-branch subpoenas unenforceable in federal court. The legal doctrine under which the court would essentially recuse itself is known as the “political question” doctrine. Under this doctrine, federal courts dismiss suits for lack of jurisdiction under Article III of the Constitution, which defines and limits the federal judicial power. Eagle Forum ELDF does not suggest dismissing the president’s suits to quash the subpoenas; instead, Eagle Forum ELDF suggests that the court should rule for the president because the subpoenas are unenforceable.

The alternative – to allow a mere committee of one chamber of Congress to harass a president – will neither end well nor end here. A precedent that allows intrusive investigations would weaken the presidency and the nation.

Recommended Citation: Larry Joseph, Symposium: Separation of powers and federalism should guide the justices to protect the presidency and the courts from politicized investigations, SCOTUSblog (Mar. 11, 2020, 5:18 PM),