Trump v. Mazars: Implications for Congressional Oversight

Legal Sidebari

Trump v. Mazars: Implications for
Congressional Oversight
July 10, 2020
On July, 9 2020, the Supreme Court issued a pair of decisions concerning subpoenas seeking access to the
President’s personal financial records, including tax returns. In Trump v. Vance, the Court ruled that the
President is not categorically “immune from state criminal subpoenas seeking his private papers.” Nor
does a “heightened showing of need” have to be made before a state grand jury subpoena can be issued
for a sitting President’s personal records. Thus, the President, though able to present some defenses that
are unique to his office, is otherwise treated much like “every man” when called upon to produce
evidence in a criminal proceeding. Not entirely so, however, in a congressional investigation. In Trump v.
Mazars, the Supreme Court vacated appellate court opinions directing compliance with congressional
subpoenas for the President’s personal financial records, holding that those courts had not sufficiently
considered the “weighty” separation of powers concerns specifically implicated by congressional
subpoenas “directed at the President’s personal information.” The 7-2 decision clarified that, as in Vance,
the President is not entirely immune from congressional process, but nevertheless laid out four “special
considerations” that must inform an appropriately “balanced” and “careful analysis” that is triggered
when Congress seeks the President’s personal records. The Court then remanded, directing the lower
courts to apply those considerations, and possibly others, to the specific subpoenas. Although giving
guidance, the Mazars Court left the question of whether the President must comply with the congressional
subpoenas for another day.
This Sidebar addresses the Mazars opinion and its implications on congressional investigations.
Background and Context
The Mazars opinion addressed the consolidated cases of Trump v. Mazars and Trump v. Deutsche Bank.
Both cases involve claims filed by President Trump, his family, and the Trump Organization to block
private financial entities from complying with subpoenas issued by House committees for various
personal financial records, ranging from 2010 to the present and including the President’s tax returns. The
challenged subpoenas were issued as part of different ongoing committee investigations: the House
Committee on Oversight and Reform sought information in connection to its ongoing review of federal
ethics laws; the House Financial Services Committee sought information in connection to its investigation
into abuses of the financial system; and the House Permanent Select Committee on Intelligence sought
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information in connection to its investigation into foreign interference in U.S. elections. President Trump
and the other plaintiffs objected to these subpoenas, arguing that the Committees had no “legitimate
legislative purpose” for inquiring into plaintiffs’ private affairs and transactions, and therefore no
constitutional authority to compel the disclosure of the information sought. The House intervened in each
case to protect its institutional interests.
Mazars and Deutsche Bank are unique for many reasons. Although the cases are technically between
“private” parties (as the High Court noted, President Trump’s involvement was in his “personal capacity”)
and do not involve governmental information, they nevertheless represent a “clash between rival branches
of government over records of intense political interest.” Mazars and Deutsche Bank may hold the
information at issue, but the real dispute is between the President and the House committees. It is
relatively rare for such an oversight dispute to make it into court, and exceedingly rare to make it to the
Supreme Court. In fact, the Court has not issued a major opinion addressing Congress’s investigative
powers, in any context, since the 1970s. But as an “interbranch conflict” involving an oversight dispute
between Congress and the President, Mazars is the first such case to be resolved by the Supreme Court in
American history.
Moreover, in the few instances where the courts have previously been drawn into oversight disputes
between the branches, those cases have usually revolved around questions of privilege, including whether
the executive branch can withhold information on the basis of executive privilege, absolute immunity, or
some other limited (and generally contested) exception to Congress’s otherwise broad “power of inquiry.”
For example, the 1974 D.C. Circuit decision of Senate Select Committee v. Nixon (which appears to be the
only appellate court case squarely addressing a congressional subpoena issued to the President) and more
recent district court opinions dealing with congressional attempts to enforce subpoenas issued to
executive branch officials have turned on questions of executive privilege or advisor immunity. Mazars is
different, in that it involved neither of these defenses. It turned not on whether there was a permissible
justification to withhold information that Congress could properly request, but instead on whether
Congress had authority to seek the information in the first place. The case thus centers on the scope of
Congress’s investigative power.
The Court has generally viewed the scope of that power broadly, calling it both “penetrating” and “far-
reaching.” Mazars affirmed this well-established vision of Congress’s investigative powers. But because
the power to compel compliance with a congressional subpoena derives from the Constitution’s grant of
“legislative power,” it may only be exercised as it “aid[s] the legislative function.” The Supreme Court
has implemented this required nexus by mandating that a congressional subpoena serve a valid
“legislative purpose,” generally asking whether the subpoenaed information is “related to, and in
furtherance of, a legitimate task of Congress.”
That standard is quite generous. Because Congress exercises authority over an immense range of subjects,
the legislative purpose test has imposed only a handful of relatively narrow limitations on the topics
appropriate for congressional investigation. Congress may not, for example, probe purely private conduct
with no relation to the legislative function, or investigate a matter exclusively committed to another
branch of government. Notably however, these earlier cases applying the legislative purpose test generally
involved investigations of private parties or subordinate executive branch officials. Mazars is the Court’s
first opinion to directly confront the legislative purpose test in an investigation of the President.
The Holding
The Mazars decision makes clear that in the context of congressional investigations the President is, as a
constitutional matter, treated differently than others. Writing for a seven-Justice majority, Chief Justice
Roberts described the courts below as having mistakenly “treated these cases much like any other,”
applying standards and principles established in “precedents that do not involve the President’s papers.”

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Subpoenas for the President’s personal records, the Court determined, involve significant separation of
powers concerns that trigger a different, more scrutinizing approach to the scope of Congress’s power.
The Chief Justice went on to identify four “special considerations” to help lower courts to appropriately
balance the “legislative interests of Congress” with “the ‘unique position’ of the President.”
 First, a reviewing court should “carefully assess whether the asserted legislative purpose
warrants the significant step of involving the President and his papers.” The Court
elaborated that Congress’s “interests are not sufficiently powerful to justify access to the
President’s personal papers when other sources could provide Congress the information it
needs.”
 Second, courts “should insist on a subpoena no broader than reasonably necessary to
support Congress’s legislative objective.” Specific demands, the High Court reasoned,
are less likely to “intrude” on the operation of the Presidency.
 Third, “courts should be attentive to the nature of the evidence offered by Congress to
establish that a subpoena advances a valid legislative purpose.” To this end, Congress’s
position is strengthened when a congressional committee can provide “detailed and
substantial evidence” of its legislative purpose.
 Fourth, “courts should be careful to assess the burdens imposed on the President by a
subpoena.” Here the High Court reasoned that in comparison to the burdens imposed by
judicial subpoenas like those found to be permissible in Vance, the burdens imposed on
the President by congressional subpoenas “should be carefully scrutinized, for they stem
from a rival political branch that has an ongoing relationship with the President and
incentives to use subpoenas for institutional advantage.”
The Court did not apply these considerations to the committee subpoenas at issue, but instead left that
task to the lower courts on remand. Moreover, the Court cautioned that “other considerations,” besides
those specifically identified, might also be relevant: “one case every two centuries does not afford enough
experience for an exhaustive list” of factors to be considered by a reviewing court.
Impact on the Existing Subpoenas
The Court neither approved nor rejected the individual committee subpoenas at issue in Mazars or
Deutsche Bank. Nor did it hint at how each individual subpoena should fare in the face of the new
considerations other than to note generally that “[l]egislative inquiries might involve the President in
appropriate cases.” But the identified considerations make clear that the enforceability of the subpoenas
must be addressed on a case-by-case basis. Although the committee subpoenas overlap, each committee
provided different justifications to support their demands. As a result, the nature of each committee’s need
for the President’s personal information varies, and it is therefore conceivable—and perhaps likely—that
the courts, though applying the same standards, will reach different conclusions as to the validity of the
individual committee subpoenas. It is clear, for example, that a committee articulating a specific and
detailed need for a narrow set of documents is in a stronger position than one who can assert only a
generalized need for a broad array of documents, or that is using the President as a “case study.” But
however applied, the Court sought to chart a course for reviewing subpoena requests for the President’s
personal information that was somewhere between the standard favored by the House, which the Court
described as “ignor[ing] that these suits involve the President,” and the standard advanced by the
President and the Solicitor General, which would apply “the same exacting standards to all subpoenas for
the President’s information, without recognizing distinctions between privileged and nonprivileged
information, between official and personal information, or between various legislative objectives.”

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In any event, Mazars’s “special considerations” are likely to spur ongoing and perhaps protracted
litigation regarding the validity of the existing committee subpoenas, possibly resulting in a future trip
back to the Supreme Court.
Impact on Future Investigations
The Mazars opinion makes clear that presidential records are subject to congressional process in certain
circumstances, while also elucidating restrictions on Congress’s authority to obtain the President’s
personal information. Although the Court explicitly rejected the President’s assertion that all subpoenas to
the President should be subject to a heightened “demonstrably critical” standard, the opinion’s “special
considerations” nonetheless subject congressional subpoenas for the President’s personal records to a less
deferential standard than other congressional subpoenas. But the opinion’s long-term effect may be
limited in various respects.
First, it is clear that Mazars does not impact congressional investigations of other executive branch
officials or agencies. Those investigations and any resulting subpoenas, would appear to remain subject to
the traditional, more lenient and deferential “legislative purpose” test.
Second, the opinion ultimately provides congressional committees with a roadmap to satisfy the Court’s
separation of powers concerns when issuing future subpoenas for presidential records. This includes
narrow and targeted subpoenas thoroughly articulating the committees need for the information and its
close relationship to the committee’s legislative purpose.
Third, it is not entirely clear how the opinion may apply to investigations focused on official conduct and
seeking governmental records. The precise holding of the opinion is that the identified considerations
should be applied “in assessing whether a subpoena directed at the President’s personal information is
‘related to, and in furtherance of, a legitimate task of the Congress’ ….” But the opinion also suggested
that the same unique separation of powers concerns that gave rise to the “special considerations” are
likely implicated whether Congress is seeking personal or official information from the President. The
Court noted, for example, that “there is not always a clear line between his personal and official affairs”
and that “congressional demands for the President’s papers can implicate the relationship between the
branches regardless whether those papers are personal or official.”
Still, the opinion at least implicitly draws a distinction between personal and official records, suggesting
that “a subpoena for personal papers may pose a heightened risk of [] impermissible purposes, precisely
because of the documents’ personal nature and their less evident connection to a legislative task.” The
Court also rejected the President’s assertion that all subpoenas to the President should be subject to the
same “exacting standard” partly on the ground that it made no distinction between “official and personal
information.” It could be argued that the standards adopted in Mazars are applicable only when a
congressional committee directly targets the personal or private records of a President. Under that
interpretation, judicially imposed limits on Congress’s authority to obtain official records of the President
would be reviewed under the deferential “legislative purpose” standard normally employed when
Congress seeks records from private or governmental entities (though, even if the subpoena is validly
issued under this standard, the President might still invoke applicable privileges to withhold some
records). On the other hand, it could be argued that the “special considerations” test set forth in Mazars
applies to requests for either personal or official records, but these considerations may apply differently to
requests for official records compared to the President’s private information.
However interpreted, the Mazars opinion appears to add an arrow to the President’s quiver when
responding to congressional investigations. Future subpoenas for presidential records may very well be
met with arguments that the committee lacks authority to seek presidential information grounded in the
general considerations identified by the Supreme Court in Mazars. These arguments may be made not
only in court, but also much earlier in the investigative process during political negotiations between the

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legislative and executive branches over disputed information—or what then Assistant Attorney General
Antonin Scalia described as the “hurly-burly” of the accommodations process. For example, Congress
may be faced with claims that the President need not comply with congressional subpoenas because the
information sought can be obtained elsewhere, or that unlike in judicial fact finding which requires “full
disclosure of all the facts”, “efforts to craft legislation involve predictive policy judgments” that may not
require “every scrap of potentially relevant evidence.” And these claims relate only to the threshold
question of whether a given subpoena is within Congress’s authority to issue. Once these arguments are
addressed, committees and courts must still deal with second level objections based on any applicable
privileges.
Impact on Other Litigation
Mazars is not the only major congressional oversight case percolating through the courts. In an important
decision on congressional power, the D.C. Circuit recently held in Committee on the Judiciary v. McGahn
that the judicial branch lacked constitutional authority to resolve “pure” “interbranch quarrel[s]” over
information access. Congress must, the D.C. Circuit reasoned, seek resolution of its oversight disputes
with the executive branch not in court, but by leveraging its own legislative powers to “bring the
executive branch to heel.” The opinion, which has been vacated pending en banc appeal, would have
severely restricted Congress’s authority to use the judiciary to compel compliance with committee
subpoenas. The D.C. Circuit’s en banc reconsideration of the case may have a large impact on Congress’s
ability to enforce subpoenas (to any executive branch official) in the future.
McGahn and Mazars arose in very different contexts. While Mazars involves a subpoena for personal
records issued to a private party, McGahn is a civil lawsuit brought by the House Judiciary Committee to
enforce a subpoena issued to a former White House official. But both cases involve blurred lines of
private and governmental interests, and the lower court in McGahn, like the Supreme Court in Mazars,
viewed the dispute before it as implicating important separation of powers principles. For that reason,
Mazars could influence the pending decision in McGahn. For example, the Supreme Court specifically
identified the conflict in Mazars as an “interbrach conflict.” Indeed, the opinion left no doubt that despite
the posture of the parties to the suit, the Court viewed the case as one between Congress and the
President. And although noting that the judiciary has not historically been called to remedy such disputes,
the Mazars Court did not question its authority to do so. The D.C. Circuit may take that into account
when determining whether it has authority to resolve the McGahn dispute. Second, the Mazars opinion
warned that granting Congress a “limitless subpoena power” could “transform” the practice of negotiation
and accommodation that has characterized oversight disputes between the branches. “Instead of
negotiating over information requests,” the Court worried, “Congress could simply walk away from the
bargaining table and compel compliance in court.” The passage seems to suggest that the Court does not
currently view subpoena enforcement suits like the one brought in McGahn as beyond the judiciary’s
authority to hear.


Author Information

Todd Garvey

Legislative Attorney

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