Trump v. Mazars

Implications for the Federal Balance of Power

Olivia Siemens

Abstract

In Trump v. Mazars (2020), the Supreme Court held that congressional subpoenas for the President’s personal papers are subject to a higher standard of judicial review than routine subpoenas involving Executive Branch officials or agencies. It is not the intent of this article to opine on the merits of the Court’s ruling in Mazars, but rather to argue in favor of the narrowest possible reading of that opinion with regard to future oversight subpoenas for Executive Branch information. Failure to do so would a) overturn centuries of precedent stressing the Court’s limited authority to constrain congressional oversight prerogatives, and b) seriously disrupt the constitutional balance of power among the three branches of the federal government. If applied to all congressional subpoenas aimed at eliciting information from the Executive Branch, the four-part Mazarsanalysis could subvert Congress’s core constitutional functions; shield current and future presidential administrations from meaningful public accountability; and undermine the institutional legitimacy of the federal courts. When testing the validity of forthcoming oversight-related subpoenas, the Court should instead defer to the more lenient Watkinsstandard, enforcing congressional subpoenas so long as they serve a “legitimate legislative purpose.”

Introduction

In Trump v. Mazars (2020), the Supreme Court held that congressional subpoenas for the President’s personal papers are subject to a higher standard of judicial review than routine subpoenas involving executive branch officials or agencies. It is not the intent of this article to opine on the merits of the Court’s ruling in Mazars, but rather to argue in favor of the narrowest possible reading of that opinion with regard to future oversight subpoenas for executive branch information. Failure to do so would a) overturn centuries of precedent stressing the Court’s limited authority to constrain congressional oversight prerogatives, and b) seriously disrupt the constitutional balance of power among the three branches of the federal government. If applied to all congressional subpoenas aimed at eliciting information from the executive branch, the four-part Mazarsanalysis could subvert Congress’ core constitutional functions; shield current and future presidential administrations from meaningful public accountability; and undermine the institutional legitimacy of the federal courts. When testing the validity of forthcoming oversight-related subpoenas, the Court should instead defer to the more lenient Watkinsstandard, enforcing congressional subpoenas so long as they serve a “legitimate legislative purpose.”

Congressional Powers of Inquiry: Constitutional Text And Precedent

Investigations

The authority to conduct investigations is essential to Congress’ ability to fulfill its core legislative functions. While no such investigatory power is specifically enumerated in the Constitution, it is implicitly derived from various constitutional and statutory provisions which empower Congress to enact general laws as well as to oversee its co-equal branches of government. Article I, Section I of the Constitution provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.”1 Section VII accordingly enables Congress to “make all Laws which shall be necessary and proper” not only for executing its own enumerated powers, but also those powers reserved by the other federal branches and their constituent departments.2 Taken together, these two clauses clearly support Congress’ right to conduct any inquiries it deems relevant to the faithful execution of its legislative prerogatives—including investigations into the conduct of executive branch officials and agencies. The Framers agreed—so wholeheartedly, in fact, that they considered a discrete Article I clause authorizing such investigations redundant. Virginia delegate George Mason inferred as much at the 1787 Constitutional Convention, noting that “[Congressmen] are not only Legislators but they possess inquisitorial powers… to inspect the Conduct of the public offices.”3 During the inaugural sessions of the First U.S. Congress, Rep. James Madison argued that the House “should possess itself of the fullest information in order to doing justice

to the country and public officers,”4 an obvious reference to the Framers’ original recognition of the legislature’s extensive investigatory mandate. To attribute the Constitution’s comparative silence on congressional investigations to a tacit rejection of such authority would be both ahistorical and facially absurd. “It was not considered necessary to make an explicit grant of such authority,” historian Arthur Schlesinger Jr. explains. “The power to make laws implied the power to see whether they were faithfully executed.”5

Subpoenas

Furthermore, the Supreme Court has consistently held that the legislature’s “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”6 Although Congress has exercised its right to send for official documents and compel witness testimony since the Founding Era, the Court’s specific recognition and enforcement thereof began in earnest at the turn of the 20th century. While investigating the so-called Teapot Dome scandal in 1922, the Senate issued a subpoena to compel the testimony of the brother of Attorney General Harry Daugherty, whom investigators suspected of improperly shielding top Harding administration officials from prosecution related to their corrupt dealings with private energy tycoons. Daugherty refused to comply, ultimately landing the subpoena and the Senate’s subsequent contempt order in the Supreme Court.7 In McGrain v. Daugherty(1927), the Court ruled against Daugherty, holding that the Senate’s power to issue and enforce subpoenas for witness testimony was constitutionally sound. As the McGrainmajority 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 where the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.”8

Congressional subpoenas for executive branch information, the Court noted, fall expressly within the legislature’s subject matter jurisdiction. Because Congress is solely responsible for the oversight, regulation, maintenance, and appropriation of funds to all federal agencies, it must also reserve the right to obtain relevant information from these agencies in order to effectuate appropriate and relevant legislation. In other words, Congress’ general power to both issue and enforce subpoenas is a requisite adjunct to its wellestablished investigatory and legislative prerogatives. The McGrain decision also established a secondary but equally central precedent regarding the appropriate standard of judicial review for cases involving congressional subpoenas for executive branch information. “We are bound to presume,” the Court held, “that the action of the legislative body was with a legitimate object … we have no right to assume that the contrary was intended.”9 This passage makes clear that the judiciary has precious little authority to challenge a congressional subpoena’s legislative validity. McGrain

thus maintains, in effect, that the burden of proving the absence of a subpoena’s legislative legitimacy lies squarely on the individual or agency disputing that subpoena, not on the congressional chamber or committee that issued the subpoena. In the absence of compelling evidence to the contrary, the Court “is bound” to defer to the legislature’s stated objective. This deference, of course, is not absolute. Under the reigning Watkinstest, a congressional subpoena must be “related to, and in furtherance of, a legitimate task of Congress.”10 Congress cannot issue subpoenas with the sole objective of humiliating a witness; nor cite an overly general “public need” to “unjustifiably encroach upon” an individual’s constitutional civil liberties; nor use its investigatory powers for the purpose of law enforcement.11 Still, as the Court recognized in Eastland v. United States Servicemen’s Fund (1975), the “scope of its power of inquiry … is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.”12

Trump v. Mazars: Analysis and Outstanding Questions

Despite its acknowledgement of Congress’s broad powers of inquiry, the Court’s decision in Mazarslargely broke from its prior deference to the stated legislative purpose. Mazarsplaced unprecedented limitations on the legislature’s subpoena power, outlining a new four-part balancing test for cases involving disputed congressional subpoenas for the president’s personal papers. Under the majority’s new balancing test, courts are required to determine the following before enforcing a congressional subpoena for the President’s personal information: 1) whether Congress’s stated legislative purpose “warrants the significant step of involving the President and his papers”; 2) the subpoena is narrowly tailored to “support Congress’s legislative objective”; 3) the nature of the evidence offered by Congress “[establishes] that a subpoena advances a valid legislative purpose”; and 4) “the burdens imposed on the President by a subpoena … do not cross constitutional lines.”13 Crucially, this test is not exhaustive: other unspecified considerations, the majority indicates, may also factor into lower courts’ evaluations of congressional subpoenas involving the president’s personal information.14 Rather than clarifying this area of the law, then, the Mazarstest is still certain to lead to greater ambiguity regarding the outcomes of future litigation. Litigators and courts alike are left with outstanding questions surrounding the scope and applicability of the Mazarstest. How should courts decide whether and which kinds of legislative purposes warrant the involvement of the president’s papers? How might courts learn whether “other sources” could “reasonably provide” Congress with the information it needs? How narrow must a reasonable subpoena be, and what is the metric of such breadth or reasonableness? How much evidentiary detail is necessary to establish the legitimacy of Congress’s legislative objective? And which subpoenas might be simply too burdensome on a president, given that the president is rarely, if ever, personally responsible for delivering the requested information? Mazarsshines no light on how courts should weigh these various

considerations, nor does it explain how jurists might approach cases where some, but not all, of the test’s prongs are met. Moreover, though the Mazarstest ostensibly applies only to congressional subpoenas seeking access to the president’s “personal” information, it is unclear how Congress or the courts should distinguish between personal and official information. The Court recognizes as much, writing that, “The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs.”15 It does not, however, offer any meaningful guidance for interbranch disputes that might straddle this imprecise line.

Against The Expansion Of Trump v. Mazars

Myriad concerns over the constitutional separation of powers, democratic norms, legal precedent, and judicial humility should guide the Court toward a profoundly narrow reading of Mazars.

Checks and Balances

The legitimacy of any republican government hinges on its capacity for institutional accountability and self-correction. The tripartite system was intended to guarantee just that, by instituting a division and balance of power between the three branches of the U.S. federal government. Moreover, to ensure that no one branch could aggrandize itself at the expense of the others—or worse, misuse its authority to trample on the rights of citizens—the Framers fashioned a complex delegation of powers where each branch would be responsible for “checking” the powers of the other two. “In framing a government which is to be administered by men over men, the great difficulty lies in this,” wrote James Madison in Federalist 51. “You must first enable the government to control the governed; and in the next place, oblige it to control itself.”16 Checks and balances, then, are best understood as the institutional guardrails of republican government. They protect the liberty of the governed from the tyranny of the government, and they shield each branch of government from the abusive incursions of the others.

Broadly interpreted, the Court’s ruling in Mazarscould radically transform the federal government’s existing balance of power and undermine the checks and balances system. In its current form, Congress’ oversight prerogative functions as an imperative political check against the potential for presidential abuse and mismanagement. Indeed, scores of congressional investigations to date have yielded key revelations about improper and unlawful executive branch activity. From Teapot Dome to Watergate to Iran-Contra to the Truman Committee, subpoenas have been an indispensable tool of presidential transparency and accountability. Furthermore, the congressional subpoena—and the predictability of judicial enforcement thereof—is not only a necessary coercive mechanism, but also a crucial

instrumental force in facilitating compromise between the legislative and executive branches. An individual or agency that refuses to comply with a congressional subpoena risks citation and prosecution for contempt of Congress, an offense bearing serious legal consequences. But even the threat of a subpoena can bring public officials seeking to avoid the appearance of secrecy and noncompliance to the negotiating table. As the majority aptly elucidated in Mazars, previous presidential administrations have taken concrete steps to avoid involving the courts in interbranch informational disputes. Rather than seeking formal judicial resolutions for congressional documents requests, the Washington, Jefferson, Reagan, and Clinton administrations each worked alongside investigators to reach mutually beneficial compromises with their legislative counterparts.17 The Court’s apparent concern for the “hurly-burly, the give-and-take of the political process between the legislative and the executive”18 should accordingly preclude the applicability of its Mazars analysis to routine congressional subpoenas for executive branch documents. Mazarsundercuts the Court’s prior deference to legislative purpose, leaving the medium of judicial recourse dangerously unreliable. Absent the high probability of judicial enforcement, congressional subpoenas lack any substantive legitimacy. For if there is no predictable penalty for executive noncompliance with congressional oversight, or no real penalty at all, then the executive branch can block subpoenas with near impunity. Broadly interpreted, Mazarsis rife with constitutional contradictions: not only does it undermine the inquisitorial function of the legislature, but it also effectively immunizes the executive branch from meaningful public accountability. In unduly constraining the enforceability of oversight-related subpoenas, the judiciary would incentivize presidents to walk away from the bargaining table and challenge such subpoenas in court. Ironically, the Mazarsopinion concerns itself only with the converse scenario, wherein Congress leverages judicial enforcement to gain an upper hand in interbranch documents disputes.19 The Court inexplicably ignores the very issue at stake in Mazarsitself—that is, the downright necessity of judicial intervention in cases where the president has rebuffed everyopportunityto negotiate with the legislature over subpoenas for his personal documents. Should the Court adopt the four-part test for all subpoenas aimed at eliciting executive branch information, it would exacerbate the precise dilemma Mazarspurports to address: the weaponization of judicial recourse as a point of leverage in interbranch conflicts. The Court would openly invite the executive branch to ride roughshod over the rights of the co-equal legislature, and it would allow the president to insulate his administration from the prospective political consequences of congressional scrutiny—a critical democratic check on presidential misbehavior.

Legislative Purpose

The power to investigate is properly understood not only as a permissible legislative task, but indeed a vital ancillary to Congress’ core constitutional competencies. Executive branch oversight is central to a variety of enumerated legislative functions, including

budgetary appropriations, creating and amending federal agencies, regulating interstate commerce, and appointing (and impeaching) federal officials.20 Absent the broad authority to investigate and oversee the executive branch, Congress would be functionally useless, unable to exercise even its most basic Article I responsibilities. Congress’ investigatory prerogative is instrumentally imperative; without it, the legislature would be ‘shooting in the dark, unable to legislate ‘wisely or effectively.’’”21 An expansive reading of Mazarsis therefore plainly incongruous with Congress’ core instrumental functions. Compliance with the four-part test would place a colossal burden of proof on Congress to demonstrate the precise significance, narrowness, evidentiary conclusiveness, and burdens of executive branch subpoenas—all potentially insurmountable barriers to efficient and effective executive oversight. Such extreme limitations on congressional powers of inquiry would be both practically unworkable and democratically negligent. Congress is solely responsible for monitoring executive compliance with its legislative intent; should a presidential administration botch or exceed its statutory prerogatives, the legislature may amend the relevant federal laws accordingly. For this reason, many congressional subpoenas are necessarily broad in nature. They may encompass “inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes.”22 For instance, Congress surely has the right to enact legislation regarding the equitable enforcement of federal laws. To do so effectively, Congress would first have to solicit the requisite information from the Justice Department. It might inquire into statistics about racial disparities in prosecution and incarceration rates, request internal DOJ guidelines respecting prosecutorial conduct and discretion, or compel witness testimony from Justice Department employees, up to and including the Attorney General himself. The scope of Congress’ inquiry might be “broad,” and its subpoenas would certainly exert “significant burdens” on the DOJ. Given that the goal of any investigation is to identify prospectively relevant evidence, Congress might initially lack a “detailed” evidentiary basis for the particular purpose of yetundrafted statutes. Under Mazars, then, the DOJ could attempt to thwart Congress’ investigatory efforts simply by citing any one of the four prongs of the majority’s balancing test. Congress would subsequently be forced to choose between pursuing an uncertain judicial remedy, metaphorically “shooting in the dark” by passing an ill-informed (and, in all likelihood, legally suspect) regulation; or abandoning its legislative ambitions entirely. At best, these are all politically disastrous options, producing an unworkable relationship between the three presumably co-equal branches. At worst, these tradeoffs would erode the fragile pillars of constitutional government, aggrandizing the powers of the president and the judiciary at the expense of both the legislature and the American public.

Conclusion: Balls and Strikes

Finally, the complementary factors of democratic integrity and judicial humility dictate that the Supreme Court has little power to constrain the legislature’s oversight prerogatives. Indeed, the Constitution provides “an absolute bar to judicial interference” with Congress’ legislative functions.23 In neglecting to enforce a presumptively legitimate congressional subpoena, the Court would erroneously seek to replace its own judgement for that of the people’s representatives. Such actions would imbue the Court with legislative authority—a self-evident abuse of the finite powers granted to the only unelected body of government. Chief Justice John Roberts once imparted some vital wisdom regarding the limited role of the judiciary. “A certain humility should characterize the judicial role,” he pronounced at his 2005 Senate confirmation hearings. “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules, they apply them … Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”24 The chief justice and his eight colleagues should take care to remember this high-minded edict. To expand the Mazarsdoctrine would be to depart from centuries of legal precedent, flouting the principle of judicial humility and repudiating constitutional norms. No longer confined to “calling balls and strikes,” the judicial umpires would promptly suit up and take the field. Three strikes, and democracy is out.

Olivia Siemens is a senior at Brown University studying history and public policy. Olivia also serves as the Editor-in-Chief of the Brown Journal of World Affairs.

Notes

1 U.S. Const. art. I, §1. 2 U.S. Const. art. I, §7. 3 United States Constitutional Convention, “The Records of the Federal Convention of 1787, Volume 2.” 4 Michael S. Rosenwald, “‘Grand inquisitors of the realm’: How Congress got its power to investigate and subpoena,” Washington Post, March 11, 2019. 5 John Haskell, Congress in Context(Boulder: Westview Press, 2014), Retrieved from https://books.google.com/books?id=HxdWDwAAQBAJ&pg=PT202&lpg=PT202&dq=%E2%80%9Cit+was+no t+considered+necessary+to+make+an+explicit+grant+of+such+authority.+The+power+to+make+laws+implie d+the+power+to+see+whether+they+were+faithfully+executed.%E2%80%9D&source=bl&ots=RL6BsXbv_F &sig=ACfU3U098G1lRrT2ZvRXEmbNWo3jd1_H5g&hl=en&sa=X&ved=2ahUKEwie_cGShdjsAhUET98KHS 2bB24Q6AEwAHoECAcQAg#v=onepage&q=%E2%80%9Cit%20was%20not%20considered%20necessary %20to%20make%20an%20explicit%20grant%20of%20such%20authority.%20The%20power%20to%20make

%20laws%20implied%20the%20power%20to%20see%20whether%20they%20were%20faithfully%20execute d.%E2%80%9D&f=false. 6 McGrain v. Daugherty, 273 U.S. 135 (1927). 7 “Senate Investigates the ‘Teapot Dome’ Scandal,” United States Senate Archives, https://www.senate.gov/artandhistory/history/minute/Senate_Investigates_the_Teapot_Dome_Scandal.htm. 8 McGrain v. Daugherty, 273 U.S. 135 (1927). 9 Watkins v. United States, 354 U.S. 178 (1957). 10 Ibid. 11 Ibid; Quinn v. United States, 349 U.S. 155 (1955). 12 Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). 13 Trump v. Mazars USA, LLP, 591 U.S. ___ (2020), 19–20. 14 Ibid., 20. 15 Ibid., 17. 16 James Madison, “Federalist No. 10: The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection,” New York Daily Advertiser, November 22, 1787, Retrieved from https://www.ourdocuments.gov/doc.php?flash=false&doc=10. 17 Trump v. Mazars USA, LLP, 591 U.S. ___ (2020). 18 Ibid., 7. 19 Ibid., 16. 20 U.S. Const. art. I. 21 Trump v. Mazars USA, LLP, 591 U.S. ___ (2020), 11. 22 Watkins v. United States, 354 U.S. 178 (1957). 23 Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). 24 “Clip of Roberts Confirmation Hearing, Day 1,” C-SPAN, September 12, 2005, https://www.cspan.org/video/?c4494594/user-clip-john-roberts-judicial-humility-ca-2005.

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