Supreme Court

Is There Any Limit on the Congressional Subpoena Power?

There was a potentially pivotal exchange in today's Supreme Court oral argument over the House subpoenas seeking the President's financial records.

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A pivotal moment during oral argument in United States v. Lopez came when the Solicitor General was asked whether, on the government's theory, there was any activity beyond the scope of Congress' power to regulate "commerce . . . among the several states." The Solicitor General had no answer, and the need for an outer limit on the scope of legislative power was a key element in Chief Justice Rehnquist's Lopez opinion. [Audio of the exchange may be heard here.]

Several years later, in Morrison v. United States, the Solicitor General was asked the same question. Again the SG came up short. He was only able to cite the law invalidated in Lopez as an example of a law that would exceed the scope of legislative power. And again, Chief Justice Rehnquist wrote an opinion striking down the law in question emphasizing the need for an outer limit on legislative power.

The question in Lopez may have been a surprise, for the Supreme Court had not invalidated a law for exceeding the scope of Congress' enumerated powers in decades. In Morrison, however, it was obvious this question would be asked, and that it would matter to five justices. Accordingly, in NFIB v. Sebelius, the question of whether the individual mandate could be upheld as an exercise of the Commerce Power without obliterating the principle of limited and enumerate powers, was raised repeatedly (and ultimately figured in the Court's rejection of the Commerce Power theory for the mandate's constitutionality).

In today's oral argument in Trump v. Mazars, the attorney for the House of Representatives was asked (repeatedly) to identify a limit on Congress' subpoena power, and he came up empty. He was unable to identify any information about the President that Congress could not demand.

This was a predictable question, and the inability to provide an answer seems like an unforced error. The principle that all legislative powers must be limited likely matters to the five conservative justices. Based upon oral argument, it may matter to some of the liberal justices as well. Justice Breyer, for example, noted his concerns about the scope of the power asserted and its potential for abuse in the future. Whatever the Court rules in this case, he noted, would apply to future Presidents and would empower future Congresses.

There are quite a few ways for the Court to approach the underlying question in Trump v. Mazars. Based upon oral argument, I suspect the question of limits—in particular, the question whether upholding the House subpoenas at issue here opens the door to an unlimited subpoena power—will feature in the Court's ultimate resolution of the case.

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  1. I don’t think this analogy works. It is inherent in the concept of enumerated powers that they have limits. But why should the same be true for Congress’s subpoena power?

    1. The Constitution doesn’t give Congress a general subpoena power, so to the extent Congress tries to give itself such a power, it must flow from an enumerated power, which is all that Congress possesses.

      1. The Constitution also does not give the Executive Branch a “general arrest or investigation” power. So under this theory, a court could quash an investigation or an arrest by the Executive Branch if it was conducted for an improper purpose.

    2. The argument is, if you can’t see a limit in the Constitution, you are supposed to make one up.

      And then you are supposed to criticize Roe v. Wade for making up the law.

      At some point, one begins to see that the real criticism is about judges creating the law, but rather, how they create it.

      1. In that last sentence: is = isn’t

      2. I’m with you in spirit, if not in detail.

        The reason why limits to unenumerated powers are not visible in the Constitution is that the powers themselves, being unenumerated, are also invisible in the Constitution. They are creatures of the judicial imagination, and so necessarily must the limits be also.

        If you conjure a vision of a fairy in your mind, you can hardly avoid conjuring her some sort of wings too.

        But you are absolutely right about the principle. We should have less imaginative judges, and much less conjuring, and duller, drier, judges whose imagination reaches no further than the dull, dry, text.

      3. That’s fair enough, and I wouldn’t complain if the Court took out a copy of the Constitution, waived it around, and ruled, “We don’t see a subpoena power for Congress in here, and decline to permit Congress to invent one for itself.”

        But I don’t see that happening.

  2. I had always assumed that Congress has the power to subpoena anything that could relate to potential legislation or oversight. Is it within the power of Congress to pass legislation touching on the President’s tax returns? Of course. So how can Congress *not* have the power to issue subpoenas about it?

    Also, I would favor legislation requiring anyone running for president to release their tax returns, which resolves the issue.

    And finally, with as much leaking as goes on in Washington, I’m a little surprised those tax returns haven’t already been leaked. Somebody has them.

    1. The failure to leak the tax returns is the ultimate rebuttal to the argument from the usual paranoid delusional wing claiming “Deep State! Conspiracy to undermine Trump!”

      1. Except that they have been leaked. The fact that you don’t know or acknowledge this is telling. Democrats in NY have had them for years.

        The reason the leaks aren’t widely known or disseminated is because they don’t show any underlying criminal activity. There is no smoking gun.

        1. If his tax returns don’t show damaging information why go to all the effort to conceal them?

          And if NY has them, why is Vance suing to get them?

          1. “If his tax returns don’t show damaging information why go to all the effort to conceal them?”

            If you are innocent why not speak to the cops without a lawyer?

            1. Terrible analogy, Bob.

              But keep trying.

              1. Its completely accurate. You are asuming Trump is hiding stuff which is exactly the assumption many people make when a person refuses to talk to the police.

                He has no duty to disclose.

                1. It’s not a great analogy because talking to the police can get you sent to prison, whereas releasing your tax returns merely means that they’re no longer secret. So the stakes are far lower.

                  But see my comment below for why he should have a duty to disclosed.

                  1. The stakes are far lower? The stakes are losing the election because of oddities!

                    We forbid using the power of investigation for the express purpose of hurting political opponents.

                    Try again.

                  2. And since when do we forbid using the power of investigation for the express purpose of hurting political opponents? This would come as a great surprise to Hillary Clinton following the multitude of investigations over a 25 year period to which she was subjected, none of which ever produced anything.

                2. He does have a duty to disclose. He created that duty when he promised the American people he would release his tax returns.

                  That may not be a legally enforceable duty, but it is a duty.

                  1. Oh noes, a politician broke a promise.

                3. He promised that he would disclose his tax returns.

                  If he doesn’t have a duty to disclose them he damn well has an obligation.

                  1. Technically, I believe he promised he’d release them as soon as the IRS was done auditing him. That gave him a bit of wiggle room, since billionaires typically are under perpetual audit.

          2. I don’t think you can meaningfully engage with idiocy. Anyone with the cognitive issues that lead them to really think (and I do not think that Michael Towns is lying–I think he really does believe his delusional B.S.) that Dems have his tax returns, that they are acting ethically in not leaking them only due to the exculpatory nature, and that Trump is doing anything and everything to obstruct because reasons . . . I have to admit that I really don’t see the point. Engaging with the mentally deranged seems to be a waste of time.

            My two cents only, of course.

            1. Didn’t the NYT publish a part of POTUS Trumps 1995 tax returns?

              https://www.nytimes.com/interactive/2016/10/01/us/politics/donald-trump-taxes.html

              1. the copy of the return most likely originated from a former employee of the accounting firm that prepared the 1995 return. In 1995, (oct 1996 filing date), returns we paper filed, and returns with that level of complexity, were typically filed on or near the deadline. The copy of the return had the tabs to “sign here” which indicates the return was most likely signed then a copy of the signatures pages were made prior to mailing the return.

            2. You are right. When people literally invent their own facts, it is a waste of time to engage with them.

              It is one thing to engage with people who, being capable of arguing from the evidence, end up drawing different inferences than you do.

              Arguing with people who live in their own world that they have constructed in their head is not a productive exercise.

          3. re: “If his tax returns don’t show damaging information why go to all the effort to conceal them?”

            Because privacy matters?

            re: “if NY has them, why is Vance suing to get them?”

            I don’t know if NY has them or not. Nor do I especially care. But if they do have them, they might be choosing to not further disclose because doing so might indicate that they broke some law either in getting them or in handling of them.

            1. Normally I am in favor of presidents and presidential candidates releasing their tax returns. From Reagan through Obama – while their returns have been much more complex than the general public, the complexity hasnt been such the general public could grasp/understand the returns, (often with just a 10 minute scan of the returns).

              Trumps returns on the other hand are going to be exceedingly complex, vastly beyond the comprehension of the typical taxpayer and vastly beyond the comprehension level of the journalists. Quite frankly, the returns are going to be ripe for misrepresentation by the media and others who dont like trump.

              Since he has extensive real estate holding, including foreign holdings, there will be depreciation issues, basis issues, at risk limitations, reconciliation of intercompany transactions, NOL carryover, amt nol carryovers, passive activities, partnership allocation issues, just to name a few. There will be multitudes of positions taken on the returns, that without knowing the underlying facts will be represented as cheating or at least excessively aggressive.

              1. I don’t think the fact that something is complex is a reason not to disclose it. Most people are going to believe whatever they want to believe anyway. The actual facts should be made available so that someone who wants to go to the trouble of understanding it is able to do so.

                1. “I don’t think the fact that something is complex is a reason not to disclose it.”

                  Normally I would agree with you. And I also agree that people are going to believe what ever they want to believe. In this case it is highly political. Based on what I anticipate seeing in his returns, I would estimate 10-12 hours just to get a basic grasp of his return, and I am a tax professional. The opportunity for distortion of the facts and the tax law regarding his return is astronomical. Frankly I am not in the mood for that game to be played in the political theator.

              2. “Normally I am in favor of presidents and presidential candidates releasing their tax returns.”

                Let me guess, what follows is an explanation for why you think whatever rules you impose on everyone else, don’t apply to Donald Trump. Please tell, I’m on the edge of my seat.

            2. If his tax returns don’t show damaging information why go to all the effort to conceal them?”

              As a voter, I am very interested in his tax returns.

              As a citizen, I am ashamed at politicians trying to use their power of investigation to obtain and leak the info. It may be embarrassing info, but it is not the decision of political opponents tk release it.

              1. “As a voter, I am very interested in his tax returns.”

                Why? Were you interested with former presidents?

          4. Sure. If you have nothing to hide, you have nothing to fear. I’m sure you wouldn’t mind letting congresscritters look at your tax returns. Or listening to a warrantless wiretap on your phone.

            1. I’m sure you wouldn’t mind letting congresscritters look at your tax returns.

              First, I’m not running for President or anything else.

              Second, if Trump wanted to make that argument he could have done so at the beginning. Instead he promised repeatedly to release his returns, and then made up bogus excuses – under audit! – for not following through. So let him follow through.

              Third, sure they’re complex, but you don’t have to be a “stable genius,” with an uncle who taught at MIT to prove it, to understand them. A CPA who does taxes for individuals, of whom there are many, would surely understand them.

              Ripe for misrepresentation? Spare me. This is a guy who lies as often as he breathes, and spends his days watching Fox, and you’re worried that someone might misrepresent something on his returns? Besides, things get misrepresented in politics all the time. BFD.

              1. My guess is that the returns probably have a lot of embarrassing (but not criminal) information in them. They probably also have a lot of innocent material that could be made to sound sinister or embarrassing.

                1. The existence of embarrassing materials, or materials that some Americans (not you, apparently) would find “sinister or embarrassing” are reasons why the returns should be disclosed.

                  1. Yes!

                    But that’s the same reason the decision to release is his and not his political opponents!

                    Officials may not use the power of government to harm their political opponents through investigations.

                    1. “Officials may not use the power of government to harm their political opponents through investigations.”

                      If the American people want to see the President’s tax returns, who besides the President’s political opponents elected by the American people is going to perform this investigation? Because I don’t think the Republican Senate is going to do it.

            2. Congress is allowed to look at my tax returns. It’s 26 USC 6103. Congress passed the act that created the entity that collects tax returns (the IRS). The difference between me and the President is that I can’t call up the Commissioner of Internal Revenue and direct him to illegally refuse to send the documents over to Congress in response to their request.

              1. No, that’s not the difference. Step away from the Constitution.

                The difference is there aren’t political opponents of yours seeking to get your returns to release them to embarrass you and sway an election.

                As voters, we should see it. As citizens in under a constitution that protects us from politicians aggregating and using power to maintain their power, no we should not, because that represents a failure of the Constitution to forbid the powerful from going against their political enemies.

                1. “…because that represents a failure of the Constitution to forbid the powerful from going against their political enemies.”

                  The way the system is intended to work, the “powerful” people in America are voters, who elected people to pass laws, specifically a law entitling Congress to receive the President’s tax return. However, in this broken, fucked up system you’re endorsing, the President is using his considerable “power” to stymie his political enemies’ attempt to force him to honor the promise he made to voters in the first place. And you’re celebrating that as essential to democracy or some shit.

          5. The IRS and NYDTR have Trump’s returns. If he was audited and additional taxes assessed, he either had to produce his books and records to challenge the assessments, or agreed to the assessments and paid them in full. If the IRS or NYDTR suspected fraud or some other crime, they could refer the files to the USDOJ or a NY prosecutor. If anyone in that chain leaks info from the return, it is a felony. That’s probably why no one has leaked them yet. If the returns get handed over to Congress or Vance, the returns could probably be leaked without much risk by the leaker.

        2. Michael, you no doubt have some actual evidence for this?

          My suspicion is it’s not criminal activity he’s worried about. Since he’s had one failed business after another, I would bet money his returns show he’s not as rich as he leads people to believe, and that’s the real reason he doesn’t want to release them. He’s not afraid of going to jail so much as of being publicly humiliated with just how bad his personal finances actually are.

          Of course, he could clear this up any time.

          1. Individual returns don’t show how wealthy someone is. I don’t know how Trump’s businesses are structured but I’d guess that there is a mix of personal activity and income from pass-throughs. With the pass-throughs (LLCs or Sub-S) he would get a K1 and unless he is the sole member he wouldn’t be able to disclose the 1065 unless the other members agreed to it. So the lib fever dream of discovering that Trump isn’t very wealthy just ain’t gonna happen.

            1. They fully expect the returns to have a line item: “Received from Vladimar Putin, one million dollars”.

              1. Wouldn’t it be one million rubles? Or does Putin pay in bitcoin?

              2. I suppose you never heard the phrase, “follow the money”.

                1. I’m fine with that. Let’s apply it to all politicians…and their relatives.

                  Agreed?

      2. Possibly because if a government employee leaks the returns, it is a felony punishable by prison time and serious fines. I know. I worked for a state department of taxation for 10 years and we got regular training on the consequences of leaking return information. I will assume that the IRS and the NY tax agency have the same kind of “antibrowsing” software that the department I worked for had. It would not take long to narrow down the list of possible leakers.

      3. And given the recent revelations regarding the Flynn case, and the conspiracy to get to Trump via Flynn, affirmed by the very words of the conspirators, how can you keep calling deep state conspiracy theorists delusional? It is you who are delusional.

        1. The aren’t delusional, at least the smart ones aren’t. They think that ridiculing the deep state as an unhinged conspiracy is a good deflection. Getting harder and harder to keep maintaining it with the latest and coming disclosures. But they did it with Benghazi, the IRS scandal, Fast and Furious, etc. and it is effective.

        2. w can you keep calling deep state conspiracy theorists delusional?

          Because they think there were recent revelations regarding the Flynn case, and that there was a conspiracy to get to Trump via Flynn.

          1. There wasn’t a conspiracy to get Trump via Flynn. Flynn was a victim of Obama’s anger at him opposing the Iran deal and his fear that Flynn would get Trump to undo it. It’s not really a surprise but it is new news that Obama knew the details of the conversation and was spitballing with Comey about using the Logan Act against Flynn.

            1. Also it can be inferred that Obama ordered the 302 from the interview to be falsified and the prosecution to proceed. FWIW I prefer shadow government to deep state.

              1. Your baseless, spiraling speculation is not making the case that you’re not delusional any stronger.

                1. Not baseless and not spiraling but a bit of speculation, I’ll give you that. We know from Yates that Obama and Comey were discussing using the Logan Act (!) on Flynn, so it’s fair to assume that Obama wanted to find a way to prosecute him, even if it was patently ridiculous. We also know that the 302 was falsified after the case officer recommended dropping the investigation. Higher ups in the FBI overruled that and so the only speculation is whether Obama ordered or encouraged that.

                  1. We also know that the 302 was falsified

                    In the same way we know that Obama was born in Kenya.

                    1. Did Obama admit he was born in Kenya like Strozk admitted he falsified the 302?

                    2. Yes, in fact. Both “admissions” of are equal connection to reality.

          2. This is such a good response.

        3. Flynn admitting guilt was a plot to get Trump? And the court accepted all made-up evidence? And the FBI lied?

          Keep going. I don’t think you know what delusional means.

          1. The evidence released in the last two weeks showed that the FBI did lie. Your bubble must be pretty secure.

            1. No evidence was released in the last two weeks, and of course nothing showed any lies by anyone.

              (It’s noteworthy that even Barr didn’t go there. The request to dismiss charges against Flynn would’ve been far more compelling if it alleged misconduct, but it does not — not by anyone.)

          2. People admit guilt for a lot of reasons, threats against one’s family being high on the list. Every single accused in Stalin’s purge trials admitted guilt.

            Courts accept made-up evidence all the time. And the FBI lies all the time, they just don’t get caught very often.

            But keep spinning.

    2. “I had always assumed that Congress has the power to subpoena anything that could relate to potential legislation or oversight.”

      Imagine if Republicans in the Senate issued a subpoena for the Biden Campaign’s current strategy and planned advertisement buys and fiscal expeditures for the 2020 Presidential election. With the assumption they’re planning some sort of campaign finance legislation, and want to know how their planned legislation will affect current political plans by the Biden campaign.

      Would that be legitimate?

      1. Armchair Lawyer, it would not be legitimate because of the admission in your last statement — they want to know how their planned legislation will affect plans by the Biden campaign. You’ve just admitted that the reason is to expose campaign secrets to the other side.

        Now, if the Republicans, not being stupid enough to make the admission you just did, instead phrased it so that the purpose is to have hard data from which to draft legislation, that’s a closer case, but still no. That hard data will be just as available to them after the election as before, so there’s no reason they can’t wait until after the election to get it. That way, they still get their data without harming a campaign in order to do it.

        1. So you’d be comfortable with SCOTUS ruling that no subpoena on Trump’s tax returns can be issued until 4 November 2020 ?

          You’re not going to get yourself invited to too many DC parties with that kind of attitude.

          1. Maybe issued but not complied with.

            Although I don’t see your hypo as being on point, since tax returns don’t tell us anything about campaign strategy. The issue isn’t that they might be embarrassing; the issue is that what Armchair Lawyer was suggesting explicitly seeks strategy.

            1. Why is “campaign strategy” more sacred than anything else which might be expected to have an effect on the campaign ?

              There’s all Joe’s papers sitting at the University of Delaware, which he doesn’t want to release because “they might be taken out of context.” As they might. Perhaps Trump feels much the same about his tax returns.

              But why should a Republican House be allowed to subpoena Joe’s papers just because they want to legislate – entirely non pretextually, of course, on, oh say, something to do with the classification of government records ?

              1. For the same reason that if you’re a civil litigant, your strategy is beyond the reach of discovery.

                If your deposition is being taken, the mere fact that a question is embarrassing does not insulate you from having to answer it. But legal strategy is strictly off limits.

                1. If you’re a civil litigant, there are many, many things beyond the reach of discovery. Entire realms of things that are off limits.

                  I’m unaware of any law or case that specifies “only” campaign strategy…and absolutely nothing else…cannot be discovered.

                  1. I’m not aware of any law or case that uses the words “only campaign strategy and absolutely nothing else can be discovered” either. But that’s not the point.

                    The general rule is that anything reasonably calculated to lead to the discovery of admissible evidence is discoverable. There are several exceptions, and campaign strategy is covered by trade secrets, and probably also attorney-client since the campaign’s lawyers are no doubt part of the process. It’s also analogous to work product, though not precisely since a campaign isn’t litigation, but the principle would be similar.

                    On the other hand, I can’t think of a single exception that otherwise relevant tax returns would fit under. In point of fact, as a civil litigator, I have subpoenaed a lot of tax records over the years. I don’t recall a single instance in which someone claimed they were protected.

                    1. So, continuing the discussion below…

                      Is the argument now that Congress can subpoena any items relevant to potential legislation, but it cannot ever subpoena trade secrets (including campaign strategy), and nor can it subpoena attorney-client information? Again, just trying to clarify.

                      Anything else Congress can’t subpoena? Any other confidential information, Personal, business, or government, that Congress cannot subpoena? Or just trade secrets and attorney-client information are off limits.

                    2. Dude, the federal rules of evidence, which articulate what can and cannot be subpoenaed, are equally as available to you as they are to me.

                      And I did not say that they cannot “ever” subpoena trade secrets. They have to show that the information is necessary, cannot be obtained from another source, and that there are safeguards in place to protect them. I suppose if you think you can show all that, you can ask for Biden’s campaign strategy, but the safeguards any court would require would pretty much defeat your purpose in asking for them.

                    3. OK, that was unnecessarily snarky. I apologize.

                      The general rule is that relevant documents are discoverable. There are a number of exceptions, most of which are found in the federal rules of evidence. They include trade secrets and attorney-client protected materials, but there are others.

                      My underlying point remains that Biden’s campaign strategy is almost certainly protected by attorney-client and trade secrets. I can’t think of a similar exception for tax records. If you can, please share.

                    4. “OK, that was unnecessarily snarky. I apologize.”
                      -No worries. Civility is always appreciated.

                      “The general rule is that relevant documents are discoverable. There are a number of exceptions, most of which are found in the federal rules of evidence. They include trade secrets and attorney-client protected materials, but there are others.”
                      -True, but…. upon further research, Congressional subpoenas are not subject to these exceptions. Congressional subpoenas have been used in the past for both trade secrets and attorney-client priviledged materials. They (Congressional subpoenas) are a different beast from standard discovery, as found in the federal rules of evidence.

                      “My underlying point remains that Biden’s campaign strategy is almost certainly protected by attorney-client and trade secrets. I can’t think of a similar exception for tax records. If you can, please share.”
                      –As above, not from Congressional subpoenas. Furthermore, standard discovery can be done, and then a court can keep certain discovered information confidential. For example, I would expect than in several situations, where federal tax returns are discovered, a court would then prevent the defense from publishing the tax returns. Of course, a court cannot effectively order Congress to keep certain items confidential, due to certain Constitutional provisions.

                    5. But if you look at those cases in which Congress subpoenaed trade secrets, or attorney-client privileged material, it was cases in which they were investigating criminal activity. And most privileges, including the trade secrets privilege, have a criminality/fraud exception.

                      I’m not aware of any case in which, without a claim of criminality, Congress subpoenaed trade secrets or attorney client privileged material. If you know of one, please enlighten me.

        2. So, that’s an interesting addition. In fact a lot of interesting additions. Let’s posit 2 points. See if these actually fit

          1) Now Congress cannot subpoena just anything that could relate to potential legislation or oversights. It must also have a legitimate reason to do so. Is that now your stance?

          2) Congress cannot subpoena anything that will harm a campaign, if the information will be available afterwards. Is that your stance?

          1. 1. No. My position is that strategy is in a category all by itself. See my response to Lee above. With a few narrow exceptions like strategy, Congress can otherwise issue subpoenas about anything that relates to legislation or oversight.

            2. No. My position is that strategy is in a category all by itself. See my response to Lee above.

            1. So “campaign strategy” is in a separate category that can’t be subpoenaed? That’s…oddly specific.

              So, let me see if I have your position clearly now. Congress has the right to subpoena absolutely anything it wants for any reason that could potentially relate to future legislation or oversight, with the specific exception of future campaign strategy.

              Is that correct? Or are there other exceptions?

              1. No, your deliberate misrepresentation of my position still doesn’t get it. I just responded to you above at 2:55 p.m. See if that clears it up for you.

                1. I apologize. I’m trying to nail down the exact position you appear to be holding. I did respond at this position before the above order. I’ll continue in the above 2:55 PM thread

        3. Who gets to determine Congress’ motive, Krychek? What, precisely, makes Armchair’s Republican hypothetical a disallowable pretext but guarantees the the Democratic motivations to seek Trump’s tax returns are virtuous and pure?

          And even if you think one of the requesting party’s motivations are pure, what will you do when others in the requesting party want to use the information for their own ends? Political parties are not unitary entities. These cases will always have mixed motivations.

          There is no adjudicating body who is clearly positioned to evaluate motives in an argument between the branches of government. Courts sure aren’t going to step into that mess. (Or at least, they shouldn’t.) You are proposing an unworkable standard.

          1. Why all this sudden concern for the President’s privacy and immunityon the part of the Trump-worshippers?

            Suddenly, you really do think he couldn’t be prosecuted fro shooting someone on Fifth Ave. That’s what his lawyers are claiming.

            What do you think of that, Rossami? Why all the concern about Congressional overreach and none about making a President immune from any control short of impeachment?

            1. 1. It’s not concern for Trump, but concern for the country and the rule of law. It’s the same reason and logic that we think someone accused of murder or rape has a right to a lawyer.

              2. That’s a different discussion, on whether or not a president can be criminally indicted. There are many items to consider. “Shooting someone on 5th avenue” is an extreme case. But what if, instead, the President gave the order to shoot down an airliner filled with civilians. Could they be brought up on murder charges for that?Something to consider.

              1. Without more context, I’m having a hard time understanding why you think the President would be less indictable if he killed hundreds of people as opposed to just shooting one.

                1. Flight 93 comes to mind, with this particular example…

                  1. Yes, I suppose if you add “justifiable” to “homicide” that does change matters.

          2. Well, in Armchair Lawyer’s hypo, he outright admitted the motive was to sabotage the Biden campaign. I would say an admission against interest is dispositive.

            I don’t think either party has pure motives, but that’s not the point. The point is whether the requested documents fit within any recognized exceptions to the general rule that relevant documents are discoverable.

            Campaign strategy is a trade secret, and quite likely also attorney-client since the campaign’s lawyers are in on it. It’s also analogous to work product.

            On the other hand, I can’t think of a single exception that tax records would fit into, and in point of fact they get subpoenaed all the time.

            1. So if, for example, Democrats in Congress admitted they just wanted Trump’s tax returns so they could release them to the public in an attempt to politically damage Trump, that would disqualify the request?

              1. That would certainly make a court raise its eyebrows.

                And even though we all know that that’s part of it, there are enough facially legitimate reasons to request them that without such an admission, I think they’re discoverable. I’m not aware of any rule that says that you can only take discovery if your motives are pure.

      2. Ok, I’m imagining it. Now what? It would be “legitimate” in the sense that if a Republican Senate can make the case why there’s something they need in the Biden Campaign’s current strategy, and the people agree with them, it would proceed. Are you suggesting it would be illegal? And if so, you’re the one who already has a legal distinction in mind. What is it?

        I assume you agreed with the potential attempts to subpoena information about financial relations between Biden and Burisma. What’s your theory on why campaign materials are different? Are tax returns more like financial relations between Biden and Burisma, than they are campaign materials?

        1. OK, excellent, you’re imagining it.

          But why does the Republican Senate have to “make the case?” They have subpoena authority over anything potentially related to legislation. This is potentially related to legislation. They just subpoena it and get it. There’s no “making the case” first. It is entirely within their lawful powers, and if the Biden campaign doesn’t give it, they’re in contempt. Right?

          1. “But why does the Republican Senate have to “make the case?””

            Because if they don’t persuade the American people, the American people won’t view it as legitimate.

            “It is entirely within their lawful powers, and if the Biden campaign doesn’t give it, they’re in contempt. Right?”

            Yes, that’s how it works. If you ignore a congressional subpoena, Congress will hold you in contempt. This has happened before. Recently, in fact.

            1. Who cares if the American People view it as legitimate? I mean, getting Biden’s campaign strategy will help the GOP win the Presidency in 2020. As long as the GOP get it, that’s what’s important. Or they can throw Biden in jail for refusing a Congressional Subpoena.

              1. “Who cares if the American People view it as legitimate?”

                The American People? The political parties that answer to them?

                Just tell us what you meant by “legitimate” in the first place. I asked specifically if you meant “legal” but you won’t say.

                “I mean, getting Biden’s campaign strategy will help the GOP win the Presidency in 2020. As long as the GOP get it, that’s what’s important.”

                If voters view the entire request as offensive and it actually decreases the GOP’s chances of retaining the Presidency in 2020, it wouldn’t be “important” to the Republican Senate.

      3. Imagine if the Republicans…

        If? When the shoe is on the other foot?

        There are commentators recommending the next time a Democrat is president and the Republicans control the House, to immediatelg proceed to impeachment investigations, under the argument the only way to fix this is to monstrously abuse and trash the system.

        Remember, they don’t need any reasons, and can subpoena anything they want. They brazenly and proudly stood there and said so.

        1. “Well, they have to worry about the next election!”

          This is the ultimate fallback. It shouldn’t be the first defense against siccing the government on an opponent.

    3. ” Is it within the power of Congress to pass legislation touching on the President’s tax returns? Of course.”

      They do not need to see any returns to pass legislation. What info in a particular president’s return is relevant?

      “I would favor legislation requiring anyone running for president to release their tax returns, which resolves the issue. ”

      They do not have such a power. It puts an unconstitutional limit on who is eligible.

      1. Bob, it does not put a limit on who is eligible. It adds a step to the process of how you run. It’s no more unconstitutional than, i.e., a requirement to gather X number of signatures, or file nominating papers, or pay any necessary filing fees to get on the ballot.

        As far as knowing what it in any particular president’s tax returns, anyone who has a top secret security clearance (as I once did) has to provide years of tax returns, for the simple reason that they sometimes contain information showing that someone may be a security risk. If he’s getting income from unsavory sources, or is living above his means, or is having financial problems, those are all good reasons to deny someone a security clearance. And I don’t think anyone who couldn’t pass a security clearance check should be president, for the equally obvious reason that he sees and makes policy based on highly classified information all the time.

        This one is so obvious, in fact, that I’m a little surprised Congress hasn’t already passed legislation about it. Probably because before Trump, it was just as obvious to everyone else too and wasn’t necessary because presidential candidates all did it as a matter of course.

        1. “It’s no more unconstitutional than, i.e., a requirement to gather X number of signatures, or file nominating papers, or pay any necessary filing fees to get on the ballot.”

          Congress does not do any of those things.

          We already have case out of California striking down such a state law.

          Can Congress require private medical records to be released in order to get on the ballot? Or require the candidate to get a comp0letemedivcal exam and release the results?

          What about adoption records if the candidate has an adopted kid?

          You do not relinquish all privacy rights merely by running for office.

          1. complete medical

          2. I’m not familiar with the California case you mention. I do remember having to help gather thousands of signatures for campaigns I’ve worked with in the past, so if signature laws are unconstitutional, that’s news to me.

            I wouldn’t say one relinquishes *all* privacy rights when one runs for office, but if there’s a connection between the records sought and fitness for office, then giving up those records may well be the price one pays for running for public office.

            1. “I do remember having to help gather thousands of signatures for campaigns I’ve worked with in the past, so if signature laws are unconstitutional, that’s news to me.”

              Signature laws are a state issue. They are beyond the enumerated powers of the US Congress.

              1. Oh, I think a presidential election is enough of a federal concern that regulating them is within the power of Congress.

          3. Bob, I think the real question is whether congress has the power to “browse” returns, or, do they have to have a valid legislative purpose for requesting a return?
            When I was an attorney with the Ohio Department of Taxation, there were rules in place preventing employees from looking at random returns. We needed to have a valid reason for accessing any return information. If a return was assigned to us, we could look at the information in the files for that return and for returns for that taxpayer in different years. Depending on the case, we could also look at other types of returns filed by that same taxpayer during the same tax periods.
            But, we could not just go online and start looking at information about anyone. Remember, we all have to file returns or face criminal penalties. Because of that possible criminal sanction, the government’s ability to use information reported in those returns (and information reported in response to audits) is very limited. Now, if a crime is suspected, the return and the books and records can be referred over to a prosecutor.

        2. “And I don’t think anyone who couldn’t pass a security clearance check should be president, for the equally obvious reason that he sees and makes policy based on highly classified information all the time.”
          Not actually relevant because POTUS is the prime classification authority. For everyone else it is a delegated authority.

          1. I’m talking about the real world practicalities of why it’s a really bad idea for someone who can’t get a security clearance to be president, not legal theory.

            And by the way, based on what we know of Trump’s business and personal dealings, I am dubious he could get a security clearance if he weren’t president.

        3. And I don’t think anyone who couldn’t pass a security clearance check should be president, for the equally obvious reason that he sees and makes policy based on highly classified information all the time.

          So if Trump just needs to put one of his guys in charge of security classifications and he can delete Dem candidates at will ? Perhaps you should avoid mentioning this idea too loudly.

        4. “And I don’t think anyone who couldn’t pass a security clearance check should be president, for the equally obvious reason that he sees and makes policy based on highly classified information all the time.”

          The President has the highest Security Check imaginable, the vote of the American People.

          1. Which is why the American people need to be fully informed, which includes releasing his tax records.

            1. It’s beyond me how tax returns meaningfully inform voters of anything relevant.

  3. The principle that all legislative powers must be limited likely matters to the five conservative justices.

    Well, limited when applied to Trump, anyway. Defending Trump is what matters to them.

    1. Bernard, I’m sure that you would limit the subpoena power when applied to a Democratic President.

      1. Ain’t not hypocrisy like speculative hypocrisy!

        If you’re so principled, why do you have all these double standards in KevinP’s head????

      2. Well, I thought it was fine that Clinton had to testify in the Jones case. Other than that the issue hasn’t been prominent until recently.

        I will also tell you that, contrary to what Trump’s lawyers maintain, the President does not enjoy absolute immunity from any sort of civil or criminal process.

    2. What an absurd comment. I doubt any of the “conservative” justices particularly likes Trump (I’m pretty sure they all find him distasteful) or cares about whether his taxes are made public. Every one of them, though, has thoughts about the proper extent of Congressional power, which do not always overlap with the others. I can’t say the same about all of the “liberal” justices, who are far more reliable when it comes to supporting the political goals of the president who appointed them.

      1. Yes. The conservative Justices are all Principled Seekers of the Truth, and the liberals are just political hacks.

        Get your head out of your ass.

  4. Whatever the decision, or the final make-up of the justices, I just hope it’s not a 5-4 decision. I actually really hope it’s unanimous, although I see no way that Alito or Gorsuch will not reflexively back the president. (I really hope I’m wrong, of course.)

    I’ll be satisfied with a 7-2 or 8-1 decision going either way . . . although I personally think a ruling allowing Trump to continue to hide the truth from Congress will be terrible in terms of oversight of all future presidents–both Rep and Dem.

    1. What is the terrible truth that Trump is hiding from Congress?

      1. Well, it’s in his taxes. And I don’t think it’s *so* terrible. Probably garden-variety tax fraud. But certainly politically-damaging, and that’s obviously why he lied to the American people repeatedly about his willingness to release those tax returns.
        Will his tax returns lead to a colorable criminal tax fraud prosecution? Perhaps. But I think it’s the political harm from their release that has led Trump to put up every legal roadblock to their release.

        1. It’s probably garden-variety using the loopholes in the tax code itself to limit confiscatory taxes, which literally every smart person does when they file their taxes.

          There is no smoking gun in the tax records. If there were, we’d have heard about it in 2016. You know, when Obama and his FBI were using fraudulent FISA warrants to spy on the Trump campaign.

          1. I dunno. Pretty much every time authorities examine anything Trump in detail, fraud is found. When people dug into his University, they found a huckster swindle and it was immediately shut down. When people looked into his Foundation, they found a crude scam, and it was immediately shut down. Maybe there’s good reason why DJT hides his returns.

            Remember : When little Don jr. joined the Boy Scouts, Trump used his Foundation’s charity money to pay the seven dollar enrollment fee. Normal people don’t have a mindset like that, criminals do.

        2. We know with complete certainty that there’s nothing terrible in there. If there were , it would have been leaked long ago.

          1. Excellent logic, right here.

            We know Trump is innocent because his opposition has no principles but hasn’t taken him down.

            You can always tell tight logic when it need admit no facts.

            1. You’re probably right, Sarcastro. Trump’s been around for four years or so and there haven’t yet been any leaks from the apparat designed to hurt him politically.

              1. First, Trump’s leaking problem is internal.

                Second, yout broad brush here is not proving anything.
                Some leaks != all things are leaked.

                You do see how your logic absolves Trump of all guilt or accountability based only on your own views of the other side.

                1. “First, Trump’s leaking problem is internal.”
                  LOL

                2. My logic is logical, that’s all.

                  There have been plenty of leaks of highly classified inforation designed to hurt Trump. We have for example the leak of Flynn’s conversation with the Russian Ambassador. That’s hard to pin on “internal” Trump leaking since it occured before Trump even took office. That’s also a felony with a heavy prison sentence attached. So it’s not like the leakers are lacking in motivation.

                  Obviously post Trump becoming President, all leaks are by definition “internal”, in that they come from within the government that Trump heads. But we also know that there are multitudes of people working at high levels in the apparat who detest Trump. And who are quite happy to leak things to try to damage Trump. Because we’ve seen their leaks.

                  So the reality is that there have been lots of leaks, by Trump’s enemies in the government, who are plentiful, and they are willing to leak pretty serious stuff, never mind a couple of old tax returns.

                  So easily the most logical conclusion is that there’s no there there, worth leaking in his tax returns.

                  Now it’s possible that the systems that guard tax data are tighter than those which guard Presidential phone calls with foreign leaders, or signals intelligence, or applications for FISA warrants, so that you stand a higher chance of being caught if you leak tax data than if you leak highly classified material. Possible but unlikely.

                  1. Now it’s possible that the systems that guard tax data are tighter than those which guard Presidential phone calls with foreign leaders,

                    Since the fool uses an insecure cell phone those particular systems are useless.

                  2. You are probably right. I was a lawyer for a state department of taxation and we had pretty good controls. If you used a data system to get info, or images of a return, they could quickly ID you and look to see whether you had a valid reason for accessing that info. Leaking that info is a violation of 26 USC Sec. 6103.

                  3. We have for example the leak of Flynn’s conversation with the Russian Ambassador. That’s hard to pin on “internal” Trump leaking since it occured before Trump even took office.

                    Memory fail. This Flynn leak happened after Trump’s inauguration. It was the leak of Comey’s briefing to President-Elect Trump of the pee tape story and dossier that was before Trump took office.

          2. Lee, suppose Trump’s tax returns not only don’t have anything terrible, but suppose they show he is Socrates, El Cyd and the 12 apostles all rolled into one. If I were the Democrats, I would still leak them, just because of how much it would piss Trump off. He’d probably have a meltdown on national television. He’d rage-tweet about it for weeks. It would consume him. If they were very lucky, he might even lose it and do something so stupid even his base would turn against him, though that’s probably too much to hope for.

            1. “If they were very lucky, he might even lose it and do something so stupid even his base would turn against him, though that’s probably too much to hope for.”

              HA!

              There is nothing so stupid and/or criminal that Trump could do that is more stupid and criminal than his base is gullible.

            2. Your supposition is impossible. If Trump’s tax returns showed ” he is Socrates, El Cyd* and the 12 apostles all rolled into one” he would have released them himself long ago.

              So the fact that neither Trump nor his enemies have chosen to release / leak them, allows us to conclude that there’s nothing poitically valuable to either side in them.

              * wonderful – I’m getting a vision of a Moorish army being scattered by a glamorpuss in stockings, using high kicking dance moves.

              1. So the fact that neither Trump nor his enemies have chosen to release / leak them, allows us to conclude that there’s nothing poitically valuable to either side in them.

                Only if you assume his enemies have them and are willing to release them. But that’s paranoia about the “deep state.”

                Is it really plausible that the returns present such a wonderfully balanced picture of Trump’s finances that neither side sees anything to gain? Seems unlikely.

                And it also seems unlikely that if the Democrats have the returns, and there is nothing much there, that they would fight lengthy court battles to get them.

                That’s my logic, Lee.

                But I do like the “Cyd” reference. Intentional?

                1. But I do like the “Cyd” reference. Intentional?

                  You will have to ask Krychek. But I liked it too.

              2. I think the far more likely scenario is that the Democrats don’t have them, for reasons bernard11 gives.

                Actually, the line about Socrates, the Cyd and the 12 apostles is plagiarized from HL Mencken. I don’t remember the context, but I’m sure someone can find it on google if they care. I just remember thinking it was a clever line when I read it in one of his essays 25 years ago.

        3. The IRS has Trump’s tax returns and whatever else one might say about them they are pretty good at finding tax fraud, especially from high-profile people like Trump who typically get audited frequently. Probably the reason he doesn’t want to disclose his returns is the one he has given on at least one occasion: that he has a lot of depreciation expense deductions and the Dems would make political hay out of it.

          For the mass of voters who either don’t file a tax return or who have H&R Block fill out their 1040EZ any deductions are going to look like fraud and the Dem operatives will go on and on about tax breaks for the rich and powerful, about how Trump pays a lower percentage than his secretary and so forth.

          1. the Dem operatives will go on and on about tax breaks for the rich and powerful, about how Trump pays a lower percentage than his secretary and so forth.

            Which is pretty much accurate.

            1. Yes “tax breaks” is so much more emotive than “depreciation.” Works particularly well with dopes.

            2. yes, how dare somebody follow the law as written. how awful.

              1. You don’t get to decide that’s not a good thing to get mad about; the American People should get to.

          2. Probably the reason he doesn’t want to disclose his returns is the one he has given on at least one occasion: that he has a lot of depreciation expense deductions and the Dems would make political hay out of it.

            Donald Trump molests women, sucks up to communist dictators, and kills tens of thousands of people by refusing to prepare for coronavirus. And he revels in it. Somehow I don’t think he’s worried about Democrats making fun of him for depreciation expenses.

            No, I think the only rational explanation is that they reveal that he’s not worth much. That’s something he really does care about.

            1. Tax returns don’t reveal that.

        4. Probably not even that. If there was any fraud, the IRS would have referred the files over to the Dept of Justice for a criminal prosecution. The IRS has the returns. The IRS probably has the business records too. Problem for any possible leaker inside the government is that it would not be that difficult to find out who did the leaking. And it is a felony for a government employee to disclose return information. So far, the leaks we have seen look like they have come from the tax preparer side…leaking return info is only a misdemeanor there.

        5. santamonica811, you’re saying you don’t know what’s in his tax returns, but it’s probably bad; and you’re making the same argument as saying anyone who would take the 5th has something criminal to hide.

        6. I think tax fraud is extremely unlikely. According to other stories, Trump has been audited almost annually for years. There are four reasons to oppose this

          1: Principle. Congress can’t demand it. If we allow this, they could demand essentially everything, which is a bottomless pit we cannot allow.
          2: It’s Useless. The People can interpret this refusal as they will and if they think it’s important, change their vote accordingly.
          3: Personal pride. Both Trump not having gigantic income and not wanting to lose face on an issue.
          4: Retribution. Trump’s financial holdings have come under attack from his political enemies. Anything that he owns that doesn’t bear the Trump name is currently protected by secrecy. If this is publicly released, it’s possible that some of his business ventures, which have been spared by anonymity, might be punished for their association (up to and including discriminatory permitting such as happened to Chickfilla). Also, if one company is particularly weak, this could give direction to boycotts or other actions that could force it to close.

        7. “Probably garden-variety tax fraud.”

          As if the general public would be able to pick out tax fraud in very complex tax return prepared by a small army of accountants.

          If anything that is already legally considered tax fraud is the concern, ask the IRS to audit his tax returns. Neither the general public nor Congress need to see his returns for that.

      2. It may not be terrible at all. I’ve reviewed returns and taxpayer business records as a government tax prosecutor. They make for very boring reading. However, if you are so inclined, you can “read between the lines” and make the business records look ominous. You can make anything look bad if you frame it that way. And the Dems in Congress will do just that, with the media cheering them on (and not asking probing questions).

        1. You can make anything look bad if you frame it that way. And the Dems in Congress will do just that

          They will, which is something the Republicans would never stoop to. Right GMT?

          1. Yes, the GOP would do this too if they could. That is why we have to hold our noses and protect Trump’s returns.

    2. I hope it is 9-0, and SCOTUS determines it is a political question they cannot step into. That is the cleanest way out that I see.

      1. No, we need an answer. In a stalemate between executive and Congress, the courts are the only viable dealbreaker.
        I definitely hope 9-0, but with clear, precedent-setting limits.

        1. I thought I did provide a clear answer. This is a political question. We do not, do not, do not want SCOTUS wading into political matters.

          1. That doesn’t work, XY.

            If you say it’s a political matter the courts can’t get involved in then you are giving the President an unqualified win, because why would he ever comply with anything if there’s no one to make him?

            1. A 9-0 decision against court interference in a dispute between the other two branches…does that mean that the SCOTUS would vacate any rulings below ordering disclosure of the returns? That SCOTUS would order the courts below to quash the subpoenas?

              1. “That SCOTUS would order the courts below to quash the subpoenas?”

                I think there are several different subpoenas at play. If there are FRCP subpoenas, the Court would vacate any decision on them, one way or the other. If there’s a lower court order affirming a Congressional subpoena, SCOTUS’s ruling would not require courts below to quash them.

            2. SCOTUS can’t make him turn them over, either. Unless you think Justice Ginsburg can get by his security detail.

              1. You would really hope that by the time the case got to the Supreme Court, people would know what this Mazars thing is in the name of the case, but I guess even here we’re resigned to dumb political nonsense without any reference to the facts of the situation.

            3. No bernard11, not really. There is no federal law stating a presidential candidate has to release tax returns. For whatever reason, there isn’t a law. Incredible, I know. I myself have shaken my head a bazillion times about that one. That is the genesis of this entire issue, right?

              That is what makes it a political question that SCOTUS should steer very clear of. The unqualified winner in this instance would be SCOTUS.

              1. This — and particularly the Vance case — does not fit the definition of political question.

                1. We can agree to disagree.

        2. “In a stalemate between executive and Congress, the courts are the only viable dealbreaker.”

          Wrong.

  5. I think those questions about a hypothetical limit were unfair.

    If the Court couldn’t set strict limits in (Jones? where they said Congress has “broad” powers), then why ask counsel to set some hypothetical limit.

    And yes, counsel could have answered better.

    “Your Honor, I agree with the premise that all powers have some hypothetical limit; however, I am unable to see that far ahead and in any rate, this case falls well below any limit that could be determined.”

    1. The Supreme Court doesn’t like answers like that. That would be fine for deciding this case, but they’re not writing merely for this case; they’re writing to govern future cases. They want to know what rule they can set down — even if it’s some half-assed balancing test — to provide guidance to lower courts.

  6. Is There Any Limit on the Congressional Subpoena Power?

    A better question would be, “Is there any limit on the President’s legal immunity?”

    1. Yes, the limits to Trump’s immunity is how much water the Supreme Court will carry before they feel a sense of shame and/or a belief that there is such a thing as the rule of law, and not just the raw exercise of power when you have it.

      1. I think the way the question is phrased is important.

        Trump is claiming absolute immunity. So isn’t the question what the limits of his immunity actually are?

        Instead, Adler, buying into the myth of principled conservative Justices, starts by looking for the limits of the subpoena power.

        1. We’ll see how you feel about those limits when Joey gets elected.

          1. Weird, isn’t it, how the Gullible Trumpists always deflect current corruption by hypothesizing about something else.

            Yes, I would feel terrible about the precedent established by idiots like you if, in the future, the Biden Administration says that it will never have to provide Congress with anything, ever, no matter what. That is the worst possible result.

            But morons like you will go DERP DERP THIS IS DIFFERENT OBAMAGATE RULE OF LAW DERP DERP!

            And this is because you have no principles, no knowledge, and you really hate America.

            But that’s okay- we all know it already.

          2. Can you imagine if the next Democratic President had to disclose their tax returns? The scandal!

    2. This is just more leftists following the “you show me the man I’ll show you the crime” tactics. There is no oversight or legitimate purpose involved it’s pure politics by the House leadership, a fishing expedition for campaign fodder.

      1. Uh, dude, there’s a cornucopia of campaign fodder involving Trump; they don’t need this subpoena if that’s their only agenda.

  7. “There is no smoking gun in the tax records. If there were ….”

    He would have released them long ago, like he promised, and like every other candidate has done since the 70s, instead of repeatedly lying to the American people.

    C’mon, I don’t know why any of us bother. Trump is the Nigerian Prince, his supporters are the elderly people that have been conned.

    And no matter how much we try to tell them that there are no lottery winnings coming, they will yell at the clouds, and yell at us, and say that we just don’t know Prince Trump, and that his envoy Jared Kushner will be bringing their share of the lottery winnings any day now, they just need to send another $1000.

    There is no point in trying to argue facts or logic with them; it’s an endless pit of stupid and conspiracy theories. It’s like whac-a-mole, except not fun. Eventually, this will pass, responsible people will have to clean up their mess, and they will be screaming about how Trump wasn’t a REAL CONSERVATIVE and all of this was really Obama’s fault, or something.

    Just block them on facebook, let them have their tantrums, and hope they die.

    1. “Just block them on facebook, let them have their tantrums, and hope they die.”

      What a guy.

      1. Tolerant liberal

        1. Aw, so sweet! So when your- co-Trumpists bleat about revolutions and UR SECOND AMENDMENT RIGHTS DERP DERP KILL DEM LIBTARDS you all think it’s fine and dandy.

          You’re a bunch of special snowflakes, aren’t you? Stupid, unprincipled, and you hate America.

          We will be better off when you are dead. That’s not a threat, that’s merely a consummation devoutly to be wish’d.

          Oh, I’m sorry- that’s literate and stuff. You know, Elitist. I need to dumb it down for you Liberty Univrsity loving-Conservatards.

          I’m not going to help you die; I’m just not going to shed a tear, and know that we will have a better country when you’re gone.

          1. I’m surprised you’re still here. I expected a meltdown a week ago. Looks like it’s coming though. Oh and unlike you I don’t wish it on you. Mental illness is a terrible thing.

          2. You need some help Loki. Maybe step away from the internet. Lay in the sun. Get a cat.

    2. I understand how you feel.

      When people are willing to invent their own facts, or insist that an implausible state of the world is true, it tends to take more energy than it is worth to engage. Such people live in their own fictional universe.

      That said, I sometimes try to engage a little bit with people first. Because sometimes you are pleasantly surprised.

    3. As much as I like the VC, I wish it go back to its own site again, so Reason would have fewer lefty wackos wishing death on fellow citizens.

  8. I think there is a very simple and obvious answer, though I’m confident that SCOTUS will not find it.

    Congress has no “inherent” subpoena power, so there is no point hunting for limits to an imaginary power. No Congressional subpoena power is mentioned in the Constitution. However, a means by which Congress may acquire subpoena power is mentioned in the Necessary and Proper Clause.

    The defined limit of Congress’s subpoena power is therefore to be found in the text of whatever statutes Congress claims support its subpoena power.

    Since such statutes – to the extent that they exist – are only within Congress’s power to enact if they fall with the Necessary and Proper Clause, then there is a further constitutional limitation, beyond the text of the statute, such that the subpoena power must be “necessary and proper for carrying into Execution ” some enumerated power.

    1. I should add that while I can see that some subpoena power might be justified as being N&P for carrying into execution the impeachment power, I’m much more doubtful that any such power would be N&P for carrying into execution the legislative power.

    2. Lee Moore : “The defined limit of Congress’s subpoena power is therefore to be found in the text of whatever statutes Congress claims support its subpoena power”

      Whether that’s the exclusive standard or not, I can’t say. Wasn’t United States v. Nixon decided 9-0 otherwise? However, in the case of tax returns there is a 1924 law specifically granting the House access. It gave the tax committees an unqualified right to request the tax returns of any taxpayer. And Trump (thru Mnuchin) still refused to comply, law be damned. Whatever he’s hiding must be pretty big….

      Lastly: I admit this sentiment isn’t noble or mature, but does anyone else think Mnuchin has a face that needs to be punched?

      1. “Lastly: I admit this sentiment isn’t noble or mature, but does anyone else think Mnuchin has a face that needs to be punched?”

        What a guy.

        1. Tolerant liberal.

          1. Bob, the Special Snowflake.

            If you can’t take the heat, why don’t you die already?

            1. Cry more lib.

          2. Gosh, Bob – I deeply regret failing to meet your lofty standards of broad-mindedness, tolerance and empathy.

            1. Libs claim to be tolerant. Live up to it.

              1. Wait a minute! You’re saying you get a free pass?

                1. I am intolerant about a lot of things.

                  Libs claim they are very tolerant people.

                  I am just asking for you to live up to your own claimed values. Seems reasonable.

      2. “It gave the tax committees an unqualified right to request the tax returns of any taxpayer. ”

        Laws are subject to the Constitution.

        1. Do you even understand the constitutional arguments?

      3. However, in the case of tax returns there is a 1924 law specifically granting the House access. It gave the tax committees an unqualified right to request the tax returns of any taxpayer.

        In which case, we don’t need to agonise too much about where the limits are. SCOTUS just needs to be pointed at the text, and be briefed by the attorneys on whether and why the statutory power is N&P to carrying into execution the legislative power.

        If you have it, the text of the relevant bit of the 1924 law would be educational.

        1. 26 USC 6103(f)(1):

          Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation
          Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

      4. If a Presidential Executive Order that would have been valid “but for” an “improper purpose” be overturned, why can’t a Congressional Subpoena be overturned for the same reason?

        1. It’s not clear under current law that Presidential EOs can be overturned for an “improper purpose”. It’s a pretty close question at SCOTUS, and I’m not sure anyone knows what the votes are. But to the extent there are 5 on “improper purpose” it has to do with a very specific type of improper purpose (discriminatory intent) that has nothing to do with the tax return request. Unless you are saying that Congress is discriminating against a protected class…?

      5. “I admit this sentiment isn’t noble or mature”

        It’s ignoble and childish.

  9. Can Congress subpoena documents relating to the inner workings of courts, such as drafts of opinions and other notes? Require clerks to testify about discussions with judges and justices?

    Congress may consider impeaching judges or justices. And may find or assert that issuing broad subpoenas might be helpful in deciding what to do. Does it follow that Congress can acquire any and all information it wants?

    1. Of course, if they passed a law to do so. See Article III, Section 2.

  10. I’ve seen hearings that do seem to collect data for possible legislation. I’ve seen other hearings that obviously are just pretexts, designed to get publicity for the members. In this case, many sober people believe that the purpose of these specific subpoenas is pretextual. They just want to expose dirt to embarrass Trump, and that as soon as the returns are leaked to the press, all pressure for legislation or prosecution will be forgotten.

    Is there no authority that can judge Congress’ sincerity in exercise of subpoena power? What enforcement powers does Congress have if their subpoenas are defied?

    1. I’ve seen hearings that do seem to collect data for possible legislation.

      I don’t think there’s any argument that hearings might be helpful for considering legislation. But that something might be helpful for considering legislation does not make it necessary and proper for carrying into execution the legislative power.

      “might be helpful” and “necessary and proper” are different ideas.

      It seems to me very doubtful that it is either necessary or proper to issue subpoenas, or compel witnesses, to carry into execution the legislative power. If you want answers to help you craft legislation, what’s wrong with just asking nicely ?

      1. It seems to me very doubtful that it is either necessary or proper to issue subpoenas, or compel witnesses, to carry into execution the legislative power.

        Look, I think the N&P clause ought to be understood more narrowly than it is, but it’s indisputable that it’s currently (and by currently I mean for the last 200 years) interpreted much more broadly than that.

    2. re: “Is there no authority that can judge Congress’ sincerity in exercise of subpoena power?”

      I don’t know of any such authority. Do you?

      1. Yup. Watch out for thunderbolts.

    3. “Is there no authority that can judge Congress’ sincerity in exercise of subpoena power?”

      Of course. The American people.

  11. According to news reports, Trump was audited by the IRS for a number of years prior to 2016. Unless Trump agreed to the assessments, his tax counsel probably submitted his books and records to the auditors.

    So, the government already has his books and records. Also, the government has not made any referrals to the US Department of Justice for criminal prosecution. The question then is, can Congress go on fishing expeditions for any private citizen’s tax returns? If Congress is concerned that the president may have committed a tax crime, the lack of prosecution (especially for returns filed during the Obama administration) would suggest that there is nothing there.

    1. Yeah…and that cuts both ways. Who is to say a future Congress couldn’t go on fishing expeditions of former POTUS’. This entire case is fraught with political motivations and overtones. The SCOTUS should reject wading into this morass.

      1. Sort of what FDR did when he had the IRS and DOJ go after Andrew Mellon.

    2. “The question then is, can Congress go on fishing expeditions for any private citizen’s tax returns?”

      Yes. There’s a law about this exact thing.

      1. I saw the 1924 cite above, NtoJ. Anyone ever challenge the law?

  12. The answer, to me, should be simple and straightforward.

    Almost unlimited for activities related to time in office, almost none for prior activity until they leave office.

    That is the only workable solution to prevent continuous harassment of sitting Presidents.

  13. re: “the inability to provide an answer seems like an unforced error.”

    The phrase “unforced error” implies that there was a right answer to that question. I don’t think there was. Under Congress’s theory of the case, there can be no limit. Any line they picked would have been immediately attacked as arbitrary and without a constitutional basis. The only choice they had was to go all-or-nothing.

    The claim that there are no limits is a huge overreach of Congressional authority and it’s probably fatal to the case but it’s the only case they had.

  14. I think lawyers for both sides took advantage of the seriatim arguments. Normally, you can’t answer a question asking “what’s the limit” with gobbledygook about how it doesn’t need to be decided in this case. Justices will jump in and press.

    But that’s exactly what all the lawyers did here. The government and Trump lawyers offered no actual limits to the immunity claims (saying they could be decided in future cases), and the lawyers on the other side offered no actual limits on the powers of congressional committees and grand juries.

    Nobody wanted to help the justices draw a workable standard.

  15. The principle that all legislative powers must be limited likely matters to the five conservative justices.

    Problem is, as Roberts’ personal record shows, he is not content with an answer that the subpoena power is co-extensive with the legislative power, as determined by the Constitution and previous precedents. To satisfy Roberts, the answer always seems to require some new limit, narrower than before.

    Roberts keeps demanding specifics, but the answer he gets should be, “With respect, Mr. Chief Justice, we are talking about Congress, which exercises all the legislative power of the United States. Except for limits imposed by the Constitution, and the ever-present need to respect or properly balance the rights of individuals, there are no other limits. And within that ambit, it is not for this Court—a separate branch of government—to narrow the scope which the Constitution affords to Congress.”

    Thomas and Alito are also picking up on Roberts’ trick—in fact it is becoming something of a convervative tic. That’s why the question seemed unanswerable today. You do not dare give in to these small-government ideologues in robes, nor can you win your case if you contradict them outright.

    But contradiction will be the better course, long term. A tactic of continuous retreat is what the right wing is demanding from its opponents. Time to draw a line and fight back.

    1. Problem is, as Roberts’ personal record shows, he is not content with an answer that the subpoena power is co-extensive with the legislative power, as determined by the Constitution

      The Constitution doesn’t say one way or the other.

      In a perfect world, I would prefer these cases be recognized as the common law rulemaking they really are. Articles I and II really say nothing about any of this. It’s whatever the courts feel are necessary to protect the legislative process and the presidency.

      And the issue isn’t whether the subpoena power is coextensive with the legislative power. Honestly, nobody doubts that. The issue is whether obtaining these records is within the legislative power, when, presumably, Congress isn’t seriously seeking the records to draft legislation (and wouldn’t need to anyway).

      Now the answer may be “yes”, but it would have to be based on a notion of legislative deference. Everyone knows Congress doesn’t strictly need these documents to pass statutes.

      With respect, Mr. Chief Justice, we are talking about Congress, which exercises all the legislative power of the United States. Except for limits imposed by the Constitution, and the ever-present need to respect or properly balance the rights of individuals, there are no other limits. And within that ambit, it is not for this Court—a separate branch of government—to narrow the scope which the Constitution affords to Congress.

      This doesn’t work either, because you can say the exact same thing about the President. It’s not for the Court to limit the scope of the Executive power.

      The reality is, unless we want to say this is all a political question, and let the other branches sort it out (a plausible position, by the way), the Court has to step on the toes of one branch or the other.

      1. The issue is whether obtaining these records is within the legislative power, when, presumably, Congress isn’t seriously seeking the records to draft legislation (and wouldn’t need to anyway).

        Dilan, first, please understand that, “Proper,” as used in the, “Necessary and Proper Clause,” has nothing to do with propriety, nor with any mysterious undefined standards about what Congress may do, or not do. “Proper,” means something close to, “Efficacious.” Or perhaps the whole clause needs to be read as closer to our more modern usage, “Necessary and sufficient,” with 18th-century “proper,” doing the work of 21st-century, “sufficient.” To put that usage in a familiar context, older (but still somewhat current) British usage might refer to a “Proper tea shop,” meaning that it was efficaciously stocked and equipped to deliver what customers came to buy. “Proper,” legislation is reasonably gauged to accomplish its objectives.

        So how would the Necessary and Proper clause justify a subpoena to advance the legislative process (given proposed legislation within the Constitution’s scope)? The information subpoenaed would have to be expected reasonably to inform either better legislation, or a wiser decision to forego legislation, than would have been available otherwise. Not a high bar to get over.

        It does not seem reasonable to posit that legislative decisions made in the absence of information will always be alike with those better informed. And except for the questions of interpreting Constitutional scope, or unacceptable burdens on executive power, what is there in a necessary and proper use of a congressional subpoena for a court to pass judgment on?

        Also, if no one doubts that the subpoena power is co-extensive with the legislative power, why does Justice Roberts keep asking litigants seeking subpoenas to tell him what limits they would put on the subpoena power? Are you suggesting he is asking a roundabout question concerning the limits on legislative power? I don’t think so. I think he means to separate the subpoena power, and impose narrower limits on it than on legislation. Which makes no sense to me, except as a tactic to protect the president from subpoenas.

        And by the way, are you really suggesting that the Constitution does not prescribe boundaries on the legislative process?

        1. 1. While as an originalist take, the meaning of “proper” might be what you are saying, the Court’s latest statement about what “proper” means is NFIB v. Sibelius, and five justices disagree with you. So the law is that “proper” imposes some modest limitation on congressional power.

          2. I don’t think the Necessary and Proper Clause is the issue here. Again, I don’t doubt the existence of a congressional subpoena power that is coextensive with legislation.

          I think what has happened- and you can argue that it perhaps shouldn’t have happened but it has- is that a common law of privileges and immunities surrounding the Presidency has arisen. I don’t think any of it comes from constitutional text (and I find it kind of tiresome to hear people refer to either Article I or Article II as providing some sort of definitive answer here), but rather from practice.

          For instance, the executive privilege of United States v. Nixon doesn’t arise out of constitutional text; it’s a common law privilege based on the necessity to protect certain confidences within the executive branch.

          The absolute immunity of Nixon v. Fitzgerald is not commanded by constitutional text; it is a common law immunity based on policy arguments.

          The longstanding position of the DOJ that a sitting President can’t be indicted isn’t a constitutional command; it is a legal rule derived from policy concerns about what would happen if a President were forced to stand trial.

          The policy concerns in Clinton v. Jones, which everyone seems to agree impose limits on legal actions against the President are, again, common law limitations.

          3. So the real question here is whether the Court should impose additional common law limitations to protect the Presidency. The Constitution says literally nothing about that.

          4. Chief Justice Roberts’ question should be read in that way. He’s not asking “is there some limit on legislative power under the necessary and proper clause?”; he’s asking “is there some limit on how far Congress can intrude on the Presidency with a subpoena?”. Again, it’s possibly a common law privilege or immunity, just like the other Presidential privileges and immunities.

          5. As for your last line, I am suggesting that the Constitution really adds nothing to this analysis. It doesn’t tell you anything useful. The Executive Power is vested in the President. The Legislative Power is vested in the Congress. What does any of that mean with respect to these subpoenas?

          You WANT the Constitution to be implicated, but I don’t see what the Constitution actually adds to any of these issues. If we had no written Constitution, we’d still be devising rules for when the President could be forced to answer legal process, and we’d still be doing it based on similar policy concerns. There’s no reason to make what is essentially common law rulemaking into a constitutional issue.

          1. Dilan, thank you for that. You put your position clearly.

            As usual, I am uncomfortable with your legal positivism, and its boundless implications. Seems like your view would somewhat comfort Trump supporters, but those who number themselves among the originalists would have to mix a dose of paradox into their approval.

            But as for one part, this part, I had not taken the trouble to notice what you report, and find myself dismayed:

            While as an originalist take, the meaning of “proper” might be what you are saying, the Court’s latest statement about what “proper” means is NFIB v. Sibelius, and five justices disagree with you. So the law is that “proper” imposes some modest limitation on congressional power.

            Taking your assessment as accurate, how can this be? Justice Marshall himself said explicitly (and famously) that the necessary and proper clause, “purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted.”

            I can only conclude that here is a signal proof of an assertion I have made repeatedly—that modern lawyers, and even Justices of the Supreme Court, know too little of history to read antique texts, even legal texts, in their accurate meanings. The words themselves elude them.

            On that ground alone the entire originalist ambition must founder. If 5 justices of the Supreme Court really count, “proper”—in its 18th century meaning—as a restriction, and do so even after John Marshall himself explained it to the contrary in one of the Court’s most famous opinions, then perhaps I too must join you among the legal positivists.

            Oh well, I admire the study of history, but I was never disposed to be an originalist anyway.

            1. I tried to signal to you that I didn’t think highly of the majority’s gloss on “proper” in Sibelius. I think your argument is likely correct- John Marshall, for one, thought so.

              But I am not sure “proper” comes into play that often even under Sibelius. It appears to be a modest restriction, restricted to mandates that the public engage in commerce, and perhaps some similarly narrow categories.

  16. The democrats have turned Congressional inquiries into partisan muckraking operations. It is really ashame. In their unending, unstable, and blind rage approach to getting anything on Trump they have just succeeded in undermining the legitimacy of Congress.

    Time to get rid of the libs and get rid of the problem.

  17. I find this entire topic troubling. I’m not a lawyer. I always believed the subpoena power was vested strictly in the judicial branch. the only time, then, that Congress could exercise a subpoena power would be when the Senate is conducing an impeachment trial, and that court authorizes a subpoena.

    The congresses’ subpoena power is an invention via house rules. It has no force of law, and therefor the term itself is an oxymoron, since congress can’t punish anyone for failing to appear or produce records or other materials. And I don’t think congress can pass a law giving themselves this power, or they would have. They can only intimidate people into compliance.

    Surely congress may invite people to testify, and ask them to go under oath, or ask for records or other things, but I don’t think congressional subpoenas have the force of law unless a court agrees and issues a subpoena.

    1. Further on this, as a non-lawyer, the Congress may exercise the powers that the Constitution grants it, the enumerated powers, subject to the individual rights listed in the Bill of Rights. The 4th Amendment says “The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized.”

      So, if Congress wants his tax returns, get a warrant; and it must satisfy the probable cause hurdle, i.e., no fishing expeditions, and a judge has to issue it.

      1. “So, if Congress wants his tax returns, get a warrant; and it must satisfy the probable cause hurdle, i.e., no fishing expeditions, and a judge has to issue it.”

        This is retarded. The IRS doesn’t need “probable cause” to receive your tax returns. You send your tax returns to the IRS, voluntarily. They don’t send you a warrant for them. And Congress doesn’t need “probable cause” to receive tax returns from the government agency (IRS) that Congress created.

        1. I didn’t say the IRS needed a warrant, I was attempting to communicate that your tax returns are private, between you and the IRS; and that they fall under the umbrella of Trump’s “papers” in the 4th Amendment sense. If congress wants to see Trumps papers, get a warrant. Congress can’t issue a bogus subpoena that circumvents one’s constitutional rights.

          1. Congress doesn’t have to set up the IRS in the first place. It could have just said “You must mail your tax returns directly to the Speaker’s office.” You don’t have a 4th Amendment right not to have the government read your tax return. It’s a document that you create exclusively for the purpose of giving to the government.

            1. I’m not a lawyer, but I know a little bit about privacy and tax returns and history, and it’s not as trivially simple as you try to make out. It was only in 1924 that congress gained access to returns, and only by committees involved in taxation, and it has been exercised very sparingly since.

              You don’t give your return to the government,” like that’s one, single, homogeneous agency. You file with the IRS. There are laws governing the confidentiality of your return. IRC Section 6103: https://www.law.cornell.edu/uscode/text/26/6103

              1. One of the great untaken roads in American history is had the courts maintained and expanded on the holding in Boyd v. United States and created a broad right to financial privacy.

                But under current law, NToJ is correct.

                1. I disagree. NToJ is saying anything you supply to any government agency is available to anyone else in any other government agency, and that is patently, obviously incorrect.

                  By what current law are you saying NToJ is correct? I say he’s wrong by the ones I cited. His retort was “and it was congress who made the laws,” or some such juvenile tripe.

                  1. “NToJ is saying anything you supply to any government agency is available to anyone else in any other government agency, and that is patently, obviously incorrect.”

                    No, what I’m saying is that if Congress creates an agency that receives documents, and puts into the enacting legislation a clause that says “The agency will hand the documents to Congress on request”, then the agency–which only exists because of the act of Congress creating it–has no authority to deny the request as improper.

                  2. I disagree. NToJ is saying anything you supply to any government agency is available to anyone else in any other government agency, and that is patently, obviously incorrect.

                    If your argument were merely statutory, you’d be right. No statute authorizes all information provided to one agency to be shared by all other government agencies.

                    But that’s not what we’re discussing; you’re talking about a constitutional thing.¹ And it’s you who’s patently, obviously incorrect. There is no constitutional right of privacy that keeps any government agency from sharing information it collects with any other agency.

                    ¹In this case, a statute does authorize the IRS to provide it to Congress, so the only thing that could prevent it would be a constitutional provision.

                2. Kilbourn v. Thompson, 1881: Congress can’t investigate someone’s private financial matters unless there is a proper legislative purpose;

                  Watkins v. U.S., 1957: a congressional information demand must relate to a “legitimate task of the Congress;” Congress is not a “law enforcement agency” that can seek information to uncover or expose crimes.

                  1. Watkins is incredibly broad.

                    (As for your other question, Congress can obviously statutorily restrict the information flow (see, e.g., the Privacy Act), but without such restrictions, any information you supply to one governmental agency can be seen by others.)

                    1. “but without such restrictions, any information you supply to one governmental agency can be seen by others.”

                      I’m not sure what you mean by this. Are you saying if there’s no law against it, it’s OK? But there is a law against it, even regulations regarding congressional committees v. full congress. And federal to state, and on and on.

                    2. ThePublius,

                      “But there is a law against it…”

                      What law prohibits Congress from seeing your tax return?

                    3. NToJ:

                      “What law prohibits Congress from seeing your tax return?”

                      IRC Section 6103: https://www.law.cornell.edu/uscode/text/26/6103

                    4. ThePublius,

                      Which section of 26 USC 6103 are you contending prohibits Congress from seeing your tax return. Please read 26 USC 6103(f) before you answer.

              2. Please click on the link. Then scroll down to 6103(f). It’s the part titled, in bold, Disclosure to Committees of Congress. Then read the part under (f)(1). It’s the part about requiring the IRS to “furnish . . . any return or return information specified” in a Congressional request.

                1. It has to be a legit request, not just any request, like fishing expeditions.

                  “Its outermost boundaries are marked, then, by the outermost boundaries of the power to legislate. In principle, the Court is clear on the limitations, clear “that neither house of Congress possesses a ‘general power of making inquiry into the private affairs of the citizen’; that the power actually possessed is limited to inquiries relating to matters of which the particular house ‘has jurisdiction’ and in respect of which it rightfully may take other action; that if the inquiry relates to ‘a matter wherein relief or redress could be had only by a judicial proceeding’ it is not within the range of this power, but must be left to the courts, conformably to the constitutional separation of governmental powers; and that for the purpose of determining the essential character of the inquiry recourse must be had to the resolution or order under which it is made.””
                  https://law.justia.com/constitution/us/article-1/05-congressional-investigations.html#fn-191

                  1. The thing you just quoted has nothing to do with 26 USC 6103. That’s talking about Congress’s “inherent” power “to conduct investigations”. We were talking about Congress’s statutory right to receive something from the executive agency it fucking created. As I said, Congress could have just made Donald Trump (the citizen) send his tax returns to the Speaker of the House. They could have made all tax returns searchable, public documents. There’s no inherent limitations on Congress’s power to review documents that it creates the need for in the first place.

                    1. Pretzel logic, ignoring the entire legislative process. Congress can’t just do whatever it wants because it has the power to create laws; those must be signed by the executive. They could have done a zillion different things, but they didn’t! If you don’t like it change the law. But know, you can’t write a law that violates the Bill of Rights.

              3. “There are laws governing the confidentiality of your return.”

                Well, who do you think enacted those laws? Oh, right, Congress.

                1. So you’re saying congress can just break laws it enacts that are signed into law? Didn’t know that.

                  1. Congress didn’t break any laws. As I said before, it doesn’t need a reason to get the tax returns. It’s entitled to them.

                    1. That’s bullshit. There wouldn’t be a case here if that was so. See:
                      IRC Section 6103: https://www.law.cornell.edu/uscode/text/26/6103

          2. I didn’t say the IRS needed a warrant, I was attempting to communicate that your tax returns are private, between you and the IRS; and that they fall under the umbrella of Trump’s “papers” in the 4th Amendment sense. If congress wants to see Trumps papers, get a warrant. Congress can’t issue a bogus subpoena that circumvents one’s constitutional rights.

            It’s hard to overstate how much this is gibberish. Information that you’ve already provided to the government is “private” in a constitutional sense? Uh, what? Between you and the IRS? Are you inventing IRS-taxpayer privilege as a new evidentiary privilege? What are you talking about?

            And even if it the information were constitutionally private, Congress is the government, just like the IRS. There’s no distinction between the IRS and Congress in terms of your legal privacy interests.

            1. “There’s no distinction between the IRS and Congress in terms of your legal privacy interests.”

              That’s absolute bullshit. There wouldn’t be a case here, if that was so.

              See IRC Section 6103: https://www.law.cornell.edu/uscode/text/26/6103

              1. Sigh. That’s a statute. There’s another statute that specifically carves out an exception to this for Congress.

      2. Yes. You are not a lawyer, and your understanding of the law is incorrect.

        1. That’s a typically useless and unnecessary comment. You might as well just say “you’re wrong.”

          How back backing up your statement with something?

  18. There is ample evidence already publicly available the Trump has strong financial ties to foreign influence. Remember during the election where one of Trump’s lawyers felt obliged to release a letter on this topic? It said basically nobody in Russia owes Trump any money. (as if anybody asked) It of course was silent on the issue of how much money Trump owes to Russia oligarchs. And that, we know is a lot.

    From articles in conspiracy rags like Fortune magazine we learn that Trump is heavily leveraged in debt. Trump’s own kids and son-in-law publicly stated that they get all their money from Russia these days. And the business through Deutsche-bank.

    Putin-friendly interests could likely call notes and totally ruin Trump & family. And he is the president. They have him by the balls and pretty much everyone knows it. It is abundantly apparent in his conduct with regard to Russia.

    There is no question that Mueller had plenty of evidence on all of this but he “stayed in his lane” for reasons. Of course they are trying to quash that source as well.

    So we are arguing about the legislative need for Congress to see this financial information that shows that the president and cohorts are deeply under the influence of a foreign non-friendly power. From where I sit it would look like a dereliction of duty if they did not pursue this with everything they had. The DoJ should be doing it but they have been totally neutered under Barr.

    Back in the late ’90s you would tune in to any cable news or mainstream news channel and you would hear “nobody’s above the law” 500 times in a day. For some reason that is no longer operative. I wonder why.

    1. You should really stay current. How you can assert this in light of the recent revelations stemming from the Flynn case is beyond me.

      1. There are no new revelations, TB. Trump tweeting out another all caps thing is the only new thing.

        1. FBI documents released two weeks ago are “no new revelations?”

          Just saying it isn’t so won’t make it go away.

          1. Correct. They are no new revelations. There is nothing in them of significance.

            1. Not so. Check this:
              1. Flynn’s RT visit with Putin wasn’t nefarious. In fact, it was cleared by his former employer, the Defense Intelligence Agency, and he received a defensive briefing before he went to Russia and debriefed with U.S. intelligence after he returned.
              2. Not a Russian agent. A Justice Department memo exonerated Flynn of Russia collusion on Jan. 30, 2017, nearly a year before he pled guilty. “The FBI did not believe Flynn was acting as an agent of Russia,” a DOJ memo
              3. Case closed memo. FBI agents wrote a memo to close the investigation of Flynn on Jan. 4, 2017, writing they found “no derogatory” evidence that Flynn committed a crime or posed a national security threat. FBI management then ordered the closure to be rescinded and pivoted toward trying lure Flynn into an interview.
              4. DOJ heartburn. Senior Justice officials expressed concern and alarm at the way the FBI was treating Flynn, including trying to interview him without the normally required notification to the Trump White House. Former acting Attorney General Sally Yates expressed significant concern that White House officials weren’t being advised. “The interview was problematic from Yates’ perspective because, as a matter of protocol and courtesy, the White House Counsel’s Office should have been notified beforehand,” a DOJ memo stated.
              5. Logan Act threat wasn’t real. DOJ officials immediately did not believe Flynn could realistically be prosecuted under the Logan Act for his conversations with the Russian ambassador Sergey Kislyak. Former Deputy FBI Director Andrew McCabe testified he was told such a prosecution was a “long shot,” and former Assistant Attorney General Mary McCord “said that upon learning of Flynn’s phone calls with Ambassador Kislyak, a Logan Act prosecution seemed like a stretch to her,” DOJ memos say.
              6. Unequal treatment. James Comey bragged in a videotaped interview that he authorized the FBI to try to conduct a Flynn interview without the proper notifications and protocol, hoping to catch Flynn and the new Trump White House off guard. In other words, they didn’t follow procedure or treat Flynn like others when it came to due process. Comey said the tactic was “something I probably wouldn’t have done or maybe gotten away with in a more organized administration.”
              7. Disguising a required warning. FBI officials debated whether they could avoid, disguise or slip in the required FBI admonition against lying to agents at the start of Flynn’s interview to keep him off guard. “It would be an easy way to just casually slip that in,” FBI lawyer Lisa Page texted during the discussions.
              8. “Playing games.” Then-Assistant Director for Counterintelligence William Priestap wrote in handwritten notes that he feared the bureau was “playing games” with the Flynn interview in an effort to get the national security adviser to lie so “we can prosecute him or get him fired.”
              9. No deception. The FBI agents who interviewed Flynn, including Peter Strzok, did not believe Flynn intended to lie or be deceptive in his interview. “Strzok provided his view that Flynn appeared truthful during the interview,” a memo from Mueller’s team stated.
              10. No actual denial. The FBI agents who interviewed Flynn indicated in a draft report that Flynn did not directly deny talking to Kislyak about sanctions, as he was accused by Mueller. Instead they noted he couldn’t remember, wasn’t sure and even conceded it was possible. Here’s a direct quote from the draft interview memo. “FLYNN stated it was possible that he talked to KISLYAK on the issue, but if he did, he did not remember doing so.” That’s a far cry from a direct denial.
              11.) Interview Reports Edited. According to evidence DOJ disclosed this month, FBI officials subsequently edited the original Flynn interview report. After Strzok and fellow special agent Joe Pientka interviewed the Trump adviser, Pientka wrote the original interview report, known as a 302, then Strzok heavily edited it, so much so that he worried he was “trying not to completely re-write” the memo. Then FBI lawyer Lisa Page, who neither attended the interview nor is an agent, edited it again, according to the DOJ evidence. And then that version of the 302 was never given to the court. Instead, a substitute summary of the interview written months later was presented as official evidence, an act current and former FBI officials told me was extraordinarily unusual.
              12.) Evidence withheld. The biggest, and perhaps most troubling discovery, according to DOJ officials and Flynn’s lawyers, was the majority of the above evidence was withheld from the courts and Flynn’s legal team for years despite repeated orders that all exculpatory Brady materials, i.e. evidence of innocence, be produced.
              https://justthenews.com/accountability/russia-and-ukraine-scandals/dirty-dozen-12-revelations-sunk-muellers-case-against

              1. There is much in that comment that is new and correct. Unfortunately, what is in there that’s new is not correct, and what is correct is not new.

                But I see you’re getting it from the disgraced John Solomon’s new home, so that’s not surprising.

              2. I’m bored, so I’ll address this seriatim:

                1. Whether Flynn’s dealings with RT were nefarious is not established or refuted by the fact that he disclosed he was doing it. (What he did on the trip is what’s determinative.) But, of course, this is neither new information nor relevant to the prosecution of Flynn. Flynn wasn’t charged with espionage or the like.

                2. Old news, and irrelevant to the prosecution of Flynn, since Flynn wasn’t charged with being an agent of Russia.

                3. Irrelevant to the prosecution of Flynn, since (stop me if you’ve heard this before) Flynn wasn’t charged with working for Russia. Also irrelevant because the memo was written before new evidence came to light, so whether they had found no derogatory evidence before that point is meaningless.

                4. Not legally relevant to anything at all.

                5. Whether some prosecutors felt a Logan Act case would be a tough case to prosecute is not legally relevant to anything at all, especially since Flynn wasn’t charged with that.

                6. Those are indeed “other words,” since nothing in Comey’s comment had anything to do with “due process.”

                7. This one’s an outright lie. There is no such “required warning.” That’s a fabrication by Solomon.

                8. That’s not an accurate paraphrase of what Priestap’s notes say, and also legally irrelevant.

                9. Very, very old news. That was disclosed to Flynn before he pleaded guilty. Flynn could’ve introduced that as evidence in his defense if he had gone to trial, and it would’ve been a question for the jury. But you can’t plead guilty and challenge the evidence; you have to pick one.

                10. See #9.

                11. Some of that is old news, not “disclosed this month.” Some of it is false. (No “substitute summary months later” was presented instead.) The Trumpkins who are trying to fool you don’t want you to know that Sullivan already ruled on these nonsense 302 arguments months ago, rejecting all of them. He found that Flynn got all relevant documents.

                12. Most of it was not withheld, and none of it was exculpatory. Again: Sullivan already ruled on this stuff. He rejected Sidney Powell’s frivolous legal arguments months ago.

  19. Writs run according to the jurisdiction over the target of the writ. If X wishes to issue a subpoena or Mandamus to Y, it’s not enough that X needs the testimony, documents, or the performance to assure itself of the powers and duties committed to it. Writs didn’t run against the King or the Inns, and legislative mandamus generally doesn’t run against the executive. So the textual basis for the power isn’t that Congress has the right to do X, but that the Constitution contemplates X(Y). And that squarely abuts oversight and appropriation, which arguably displace the power of subpoena.

    What the present case is really about, perhaps, is the degree to which the normal powers of Congress in this matter (“Show me X’s tax return and browsing history”) are abrogated when the private individual is holding office.

    Mr. D.

  20. Is There Any Limit on the Congressional Subpoena Power?

    Yes. Obviously so.

    Only two cased from dozens:

    Kilbourn v. Thompson, 1881: Congress can’t investigate someone’s private financial matters unless there is a proper legislative purpose;

    Watkins v. U.S., 1957: a congressional information demand must relate to a “legitimate task of the Congress;” Congress is not a “law enforcement agency” that can seek information to uncover or expose crimes.

  21. The Kilbourn Test
    (1) Inquiries must not “invade areas constitutionally reserved to the courts or the executive”
    (2) Inquiries must deal “with subjects on which Congress could validly legislate”
    (3) The resolution authorizing the investigation must specify ” a congressional interest in legislating on that subject.”
    (4) Where the inquiry can result in “no valid legislation,” then the “Private affairs of individuals” are not valid targets for inquiry

    1. “At most, Kilbourn is authority for the proposition that Congrses cannot constitutionally inquire ‘into the private affairs of individuals who hold no office under the government’ when the investigation ‘could result in no valid legislation on the subject to which the inquiry referred.'” Hutcheson v. U.S. 369 US 599.

      1. That’s a breakthrough, thanks: you’re conceding there is a limit; just that it might not apply to a current office holder. What changed your mind?

        1. Kilbourn doesn’t apply to Congress’s statutory right to see the tax records per 26 USC 6103(f), since it predated 26 USC 6103 by decades. It had to do with Congress’s implicit, inherent, whatever, constitutional power to compel testimony.

          1. And of course, that’s black and white, right? Here’s one argument against, which is much more compelling than any one you’ve made:

            Congressional Committee’s Request for the
            President’s Tax Returns Under 26 U.S.C. § 6103(f)
            https://www.justice.gov/olc/file/1173756/download

            For these reasons, we advised that the Committee’s request for the
            President’s tax information under 26 U.S.C. § 6103(f) should be denied. Congress could not constitutionally confer upon the Committee the right to compel disclosure by the Executive Branch of confidential information that did not serve a legitimate legislative purpose. While the Executive Branch should accord due deference and respect to congressional requests, Treasury was not obliged to accept the Committee’s stated purpose without question, and based on all the facts and circumstances, we agreed that the Committee lacked a legitimate legislative purpose for its request. In the absence of such a legitimate purpose, 26 U.S.C. § 6103(a)
            Congressional Committee’s Request for the President’s Tax Returns barred Treasury from disclosing the President’s tax information in response to the Chairman’s letter or the subsequent subpoenas.
            STEVEN A. ENGEL
            Assistant Attorney General
            Office of Legal Counsel

  22. Implicit in any Justices question about the limits is their own belief that limits must exist. Otherwise, how could SCOTUS exercise power over the other two branches? It’s a remarkable power grab, quietly made.

    1. It’s just ridiculous that you assert that congress’ subpoena power is unlimited.

      1. If the Supreme Court says Congress can’t look into this, you don’t get to kvetch about the Warren Court as judicial policymaking ever again.

        1. I’ve never kvetched about the Warren Court as judicial policymaking. Where did that come from?

          But, regardless, this isn’t policy making on the part of the court, it’s pretty simple interpretation of the constitution, regarding congress’s subpoena power, and privacy of tax returns.

          Congress can’t just “look into” anything they feel, there are well established limits, usually related to legislating. They are not a law enforcement or investigatory organization. They are not the executive!

          1. it’s pretty simple interpretation of the constitution, regarding congress’s subpoena power, and privacy of tax returns.

            The constitution says precisely zero about the privacy of tax returns.

            1. And precisely zero about the subpoena power of Congress.

          2. I don’t know how many times I have to explain this to you. Congress can look into your tax returns. Congress could, tomorrow, move the IRS from an executive branch agency, into a congressional agency (like the CRS, GAO, Library of Congress, etc.), and immediately have access to your tax returns. The existing law entitles Congress to your tax returns on request to the IRS. You do not have a 4A right to the privacy of your tax returns. They belong to the government.

            You might as well assert that you have a 4A right to prevent Congress from accessing your copyrights. What the fuck man. Have you not taken a government class?

            1. I don’t need you to explain anything to me, as your assertions are so obviously wrong. Now you’re implying congress can’t, today, but tomorrow could, if they IRS was moved from the executive to the legislative branch – tomorrow – right? Yes, that’s going to happen. But you’re agreeing with me that they can’t as the structure and law exists.

              What is your beef, exactly?

              If congress can have someone’s tax returns today, then what are all these lawsuits and appeals all about? What’s this Supreme Court appeal all about?

  23. Ginsburg: “Every President voluntarily turned over his tax returns.”

    Is that true? The statement I’ve heard more often is every President since Nixon (and Nixon’s return was leaked, not voluntary).

    Did that come from one of the briefs? If now, do we have a justice making her own testimony, and alleging her own facts?

    1. “do we have a justice making her own testimony, and alleging her own facts?”

      Yes.

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