Court Says Congress Can Subpoena Trump Financial Records, but Must Account for Separation of Powers Concerns

Steven D. Schwinn, UIC Law School

The Supreme Court ruled today that while Congress has authority to issue subpoenas for the President's personal financial records, courts that judge those subpoenas must take more careful account of the separation-of-powers considerations at play.

The ruling in Trump v. Mazars vacates the lower courts' rulings and remands the case for reconsideration in light of the balancing test that the Court sets out.

The ruling means that the congressional committees won't get President Trump's financial records yet, and maybe never. It all depends on whether Congress can meet the test set out in the Court's opinion. Either way, it almost certainly won't happen before the 2020 election.

The ruling, like Vance, is a short-term victory for President Trump, in that his records probably won't come out soon. But on the other hand, it's a decisive long-term defeat for the presidency (and victory for Congress), as the Court affirmed Congress's power to subpoena the President's personal records, even with a somewhat higher-than-normal requirement.

Our argument preview is here; the review is here.

Chief Justice Roberts wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Justice Thomas dissented, and Justice Alito dissented. (If you're keeping count, that's the same line-up as in Vance.)

The Court first rejected the President's sweeping claim that tried to shoe-horn executive privilege into the case: "We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations."

The Court then acknowledged that Congress has very broad, but still defined, powers of investigation and subpoena, even against the President, and even for the President's personal papers. But the Court said that because these subpoenas sought personal information of the President (as the single head of the Executive Branch), they raised especial separation-of-powers concerns that the lower courts failed sufficiently to account for:

The House's approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information. . . .

Without limits on its subpoena powers, Congress could "exert an imperious controul" over the Executive Branch and aggrandize itself at the President's expense, just as the Framers feared.

The Court set out a non-exhaustive list of things that courts should look for in judging congressional subpoenas for a President's personal information:

First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. . . .

Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective. . . .

Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better. . . .

Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. . . .

Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.

The Court vacated the lower courts' opinions and remanded for reconsideration under these factors.

Justice Thomas argued that "Congress has no power to issue a legislative subpoena for private, nonofficial documents--whether they belong to the President or not," unless Congress is investigating an impeachment.

Justice Alito dissented, too, arguing that the bar for Congress should be set higher than the Court's setting, and that "the considerations outlined by the Court can[not] be properly satisfied [on remand] unless the House is required to show more than it has put forward to date."