Donald Trump

The Limiting Principle for Congress' Power to Subpoena Presidential Records Isn't Hard to Find [Updated With Response to Josh Blackman]

Why the Supreme Court can rule in favor of Congress in the Trump financial records cases without thereby giving Congress any unlimited power.

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The Supreme Court.

 

 

 

 

 

 

In today's Supreme Court oral argument in Trump v. Mazarsone of two cases concerning the scope of Congress' power to subpoena President Trump's financial documents,  House of Representatives lawyer Douglas Letter repeatedly failed to identify any limiting principle constraining Congress' powers to subpoena the president's records. Cornell Law Professor Michael Dorf and co-blogger Jonathan Adler argue that this was a serious error, making it likely that the five conservative justices will rule against the House. They compare it to Clinton Administration Solicitor General Drew Days' famous mistake in United States v. Lopez (1995), where he was unable to articulate any limits to Congress' power to regulate interstate commerce. The result was the federal government's first defeat in a Supreme Court Commerce Clause case in many decades.

Josh Blackman argues that Letter did not make a mistake, but rather deliberately refused to concede any limits to his client's power.

Either way, Letter's failure to identify a limit is a weakness in the House's case, and one that could well lead to defeat. Fortunately, however, finding a limit is actually easy. Whether Letter's faux pas was an unforced error or a deliberate tactic, the Court is not bound by it. It can readily rule in favor of the House without giving Congress unlimited subpoena power.

Ironically, Drew Days' defeat in 1995 is a big part of the reason why Douglas Letter's case need not suffer the same fate. From the New Deal era to the 1990s, many legal commentators assumed there were no longer any judicially enforceable structural limits to Congressional legislative power. But beginning in the 1990s, the Rehnquist  and Roberts courts decided a series of cases that reinvigorated such limits. Among other things, the Court ruled that the Commerce Clause cannot be used to regulate some types of "noneconomic activity" or impose mandates on "inactivity," that the federal government may not commandeer state governments, and that there are limits to its powers under the enforcement clauses of the Fourteenth and Fifteenth Amendments. Most recently, in Murphy v. NCAA, the Court ruled that Congress cannot pressure states to ban sports gambling under their own laws, a decision that had important implications for other assertions of federal power, including attempts to coerce sanctuary cities.

Both sides in Mazars agree that Congress can only use its subpoena power in these cases if there is a "valid legislative purpose." Obviously, there cannot be such a purpose in cases where Congress seeks to enact legislation that is beyond the scope of its powers. And under the federalism decisions of the last thirty years, those powers now have real, even if still modest, limits.

For example, Congress could not subpoena information related to Trump's many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state regulation, not federal. Similarly, Congress could not use its legislative authority to investigate whether it should force state or local governments to curtail possibly unethical business dealings by the Trump family. The anti-commandeering rule forbids such laws.

Despite the Court's recent federalism decisions, congressional legislative power remains very broad. Some subjects that Congress cannot regulate directly might nonetheless be subject to investigation, because they are relevant to matters over which Congress does have authority. But if there is a problem here, it is not the lack of a limiting principle on Congress' subpoena power, but insufficient judicial enforcement of substantive limits on the scope of congressional authority.

I have long argued that the Court should enforce such limits more aggressively. But, until then, it stands to reason that any matter on which Congress may legislate is also one that it can investigate in order to get relevant information. In the case of Trump's financial records, Congress surely has the power to legislate on conflicts of interest in the executive branch, of which Trump's business activities create many. His records are also relevant to Congress' power to legislate income tax laws, as there may be good reason to impose special restrictions on the president and other high-ranking federal officials.

Congress' motives in conducting such investigations may not be purely public-spirited. The president's partisan opponents could potentially use the information they uncover for political purposes. But political self-interest is at the heart of a great deal of legislative activity, and does not thereby render that activity unconstitutional. There is a crucial distinction here between Congress' possible political motives here, and Trump's anti-Muslim motives in the travel ban case. Discrimination on the basis of religion is unconstitutional (even if cloaked under supposedly neutral criteria), whereas seeking political advantage is not.

Steve Sachs points out that Congress could potentially use subpoena power to investigate issues beyond the scope of its legislative authority because it has the power to initiate constitutional amendments. A proposed constitutional amendment can legitimately deal with issues that Congress cannot legislate about under the existing Constitution. However, if the amendment power is the only basis for a subpoena, Congress would at the very least have to be in the process of actually holding hearings or otherwise considering some potential amendment. And if the supposed amendment turns out to be a complete sham cooked up purely for purposes of subpoenaing information, that fact is likely to leak out, and courts should be able to take notice of it and rule accordingly.

Douglas Letter's inability or unwillingness to identify a limiting principle was indeed an error in some ways analogous to Drew Days' failure in Lopez. But Days' defeat could yet turn out to be Letter's salvation.

UPDATE: Josh Blackman responds to this post with some thoughtful commentary here. He argues that Congress can always get around the limits set out above by using either the amendment power or the spending power. On the amendment power, he claims that almost any information can be subpoenaed for purposes of considering a constitutional amendment, even if that amendment has no chance of passing. Such an amendment need not be a "sham" because some people might sincerely support it. However, what distinguishes a "sham" amendment from a genuine one is not the likelihood of passing, but whether consideration of the amendment is purely a pretext for seeking out information otherwise unavailable to Congress. The sham nature of the amendment would be hard to conceal from the courts, given the large number of people who would need to be involved in any attempt to consider an amendment in Congress.

On the spending power, Josh is right that, under current precedent, Congress can use the spending power to incentivize states to take actions that Congress could not mandate directly. However, as the Trump administration has found out in a series of sanctuary city cases, the spending power, too, has substantive limits, including that it cannot be used to coerce states, that conditions imposed on them must related to the purpose of the grant in question, and so on.

Even if it is the case that almost any information might be relevant to some type of legislation, Congress is allowed to enact under current Supreme Court precedent, there are nonetheless limits to the purposes for which Congress can seek out the information. By analogy, we would not say that law enforcement agencies' power to acquire information is unlimited merely because almost any type of information might potentially be relevant to some kind of investigation they are empowered to conduct. They still have to show that the information sought in any particular case will be used for a permissible purpose. The same applies to Congress' subpoena power.

If Congress' power to subpoena information is still too broad, the fault lies not in the scope of the subpoena power, but in the scope of the substantive legislative power the former is supposed to facilitate. It is the latter, not the former, that has too few limits. After all, it makes little sense to suggest that Congress has the power to legislate on X, but not the power to acquire relevant information about it. Those who think there are too few constraints on Congress' subpoena power should focus their efforts on constraining its power to regulate and spend, which remain far beyond what is permitted by the text and original meaning of the Constitution. That is true of the spending power, as well as many of Congress' other authorities.

NEXT: An Interesting Historical Note About the Bakke Case

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  1. Does Congress have the power to browse through tax returns at will? When I worked at the Ohio Dept of Taxation, we had strict rules prohibiting browsing. We needed to have a reason to request a return.

    1. You know why that was? Because the Ohio legislature passed a law making the returns confidential.

      1. At one point, both the President and Congress had the power to browse through anyone’s return. Nixon is why the President lost that ability, and this is why Congress ought to as well.

        1. Sure, but that’s a statutory question, not a constitutional one.

        2. But they’re not seeking to browse “anyone’s” tax return. They’re seeking to see if the President of the United States has conflicts of interest that influence his ability to do his job. You talk and act as if they’d just pulled his name out of a hat and decided to rummage through his finances.

          1. No, they’re seeking to embarrass him. Let’s not beclown the discussion with sophistry.

            1. Right, because even though Don, Jr. said in 2008:

              “‘In terms of high-end product influx into the US, Russians make up a pretty disproportionate cross-section of a lot of our assets,’ Donald Trump Jr. said at a New York real-estate conference that year. ‘Say, in Dubai, and certainly with our project in SoHo, and anywhere in New York. We see a lot of money pouring in from Russia.’”

              And although Eric said in 2014:

              “Well, we don’t rely on American banks. We have all the funding we need out of Russia.”

              There’s no reason to think there’s any legitimate reason to see the financial entanglements the POTUS might be involved in with one of our chief global rivals.

              They just want to embarrass him.

              1. I think arguing about legitimacy actually concedes part of the issue.

                The judiciary doesn’t get to assume or even consider Congressional bad faith when asking a question about the structure of government. That’s a policy discussion.

                1. Funny Democrats have spent a lot of Trumps term arguing that his executive orders we invalid because they were put forth for an “improper purpose”. Why shouldn’t Congressional Subpoenas be subject to the same standard?

                  1. Because they’re not the same thing. Subpoenas relate to the process, executive orders relate to the substantive law.

                  2. Beyond Krychek’s good distinction, how are you avoiding charges of your own double standard, or does that not matter in the face of those evil Dems?

      2. Yea, and you know what? The US Congress passed several laws making returns confidential.

        1. Sine you don’t actually cite any of those laws the US Congress has passed, do any of them explicitly put tax returns beyond the reach of a subpoena? There’s a critical difference between things which are confidential in the sense that people can’t just walk in off the street and ask to see them, versus things that are beyond the reach of a legitimate subpoena.

          The whole point of serving a subpoena is that it allows you to get things you can’t get otherwise.

          1. Straw man argument. I never said the laws put them out of reach of a subpoena. What’s your point?

  2. “Steve Sachs points out that Congress could potentially use subpoena power to investigate issues beyond the scope of its legislative authority because it has the power to initiate constitutional amendments.”

    I think we really need to maintain the distinction between “points out” and asserts. “Points out” carries the implication that what is asserted is correct, after all. Sachs’ argument is absurdly over-inclusive, as Congress could potentially originate amendments on any topic whatsoever, even amendments to repeal various articles of the Bill of Rights.

  3. I still stand by the position that this is a political question reserved to the political branches.

    President Trump can deny access to whatever documents Congress requires him to provide. If Congress doesn’t like it then they can impeach the President. Once he is no longer in office, Congress is free to subpoena any information they want.

    What is the Court’s authority to enforce its order? Will the court usurp executive authority and order the arrest of the President by some Federal agent? Will the Court arrest the President under its contempt power?

    This was true when President Obama refused to cooperate with Congressional subpoenas and is just as true for President Trump.

    1. So you disagree with U.S. v. Nixon and Clinton v. Jones? Or are you simply of the opinion that Presidents Nixon and Clinton could simply have ignored the Court’s order? I mean, of course, practically the President can refuse, but are you arguing that is a legitimate and desirable (categorically, not in the particular instances) assertion of Presidential superiority over Congress (and the Courts) with respect to what documents or testimony Congress may review?

      Seems really bad principle to me. If that were the principle, Congressional oversight is essentially meaningless and is available only when the executive chooses to allow it.

      1. Well the other side, should Trump lose, is to simply declare any person (individual or corporate) who reports on his personal tax information “persona non grata” and ban them from the White House. If some leftist judge prevents this, then just cancel every press event where they are present and say why.

        1. Lean into childishness, huh? (And pretty much any judge would prevent banning reporters from the White House because they reported things the President didn’t like. That’s about as clear cut a First Amendment violation as you can get.)

      2. U.S. v. Nixon was about use for a criminal case. Clinton’s was about use in a civil trial. Neither were about generalized filching-at-will.

        1. So you are fine with the New York State subpoena and enforcing that? Very good.

      3. Both Nixon and Clinton were subject to Impeachment proceedings. Trump was but as far as I recall none of the allegations touched on his financial; dealings.

        1. Clinton v. Jones had nothing to do with impeachment. The impeachment only occurred after the subpoena was enforced (and then the President lied under oath). In other words, enforcement of the subpoena did not rely at all on impeachment because no impeachment proceedings had yet begun.

    2. I strongly disagree with this. If Congress says they have the power to compel disclosure and the President says they don’t, it’s the JOB of the courts to resolve the question. Otherwise you just have the other two branches whining and yelling at each other with no resolution. The courts were put in place to answer these kinds of questions.

      1. Let us flip the script.

        Could the President subpoena Congress’s legislative records?

        1. The Justice Department certainly could, assuming a legitimate reason for doing so.

          1. Can the DOJ issue subpoenas on it’s own authority, or does it have to go to a judge for that?

            1. On its own. I once received a subpoena from the FBI signed by the area director that I’m quite certain no judge ever saw.

            2. Though I think it’s more typical for subpoenas to be issued by US attorneys in the name of the grand jury.

        2. Not sure what you mean by “legislative records.” The Speech or Debate Clause likely protects these. (But that’s an express constitutional provision, unlike, e.g., executive privilege.)

          1. Maybe. If a congressman is being investigated for taking a bribe to vote a certain way on a certain bill, I’ll bet we’d find out the speech and debate clause isn’t airtight.

    3. If Congress doesn’t like it then they can impeach the President

      And how would the Senate impeach?

      And what good does it do for the House to impeach if the Senate won’t convict?

      Pretending that Congress is some sort of monolith is silly.

      Calling it a political question is handing Trump the win.

  4. As usual, Somin’s TDS renders him analytically incoherent. Very possibly, Congress has the power to impose special income tax rules on the president and other high-ranking officials. But Congress is seeking to subpoena Trump’s tax records from before he was president. Maybe Congress has to the power to regulate whom the people may elect as president? I don’t think so. Similarly, note how political motives convert conduct by Trump that would otherwise be legitimate into an impeachable offense, whereas political motives are irrelevant when the purpose is defeating Trump. The plain fact, Somin has lost the intellectual battle, and he knows it.

    1. I tend to agree, the “limiting principle” here is just that the action has to be directed against Trump.

      1. No, the “limiting principle” is against the first president in 50 years to not voluntarily make his returns public, because BT (Before Trump) the reasons for why it’s good public policy to see the President’s returns were so glaringly obvious the issue had never come up. After Trump leaves office, it would not surprise me if Congress passes a statute requiring presidents to disclose their taxes.

        1. “He didn’t volunteer his taxes! How will we reveal his taxes to the people when it’s illegal?

          “I will make it legal,” growled the Emperor from under his hood.

        2. And when President Cotton refuses to comply? Impeachment?

        3. And before FDR, it was so glaringly obvious that presidents should only serve at most 2 terms, the issue of term limits never came up.

          The fix? An amendment.

          If you want to make a voluntary act mandatory, pass a constitutional law. If it isn’t constitutional, pass an amendment.

        4. If the people were upset about Trump not revealing his taxes, they were free not to elect him. Being upset that they dared to elect him anyway is not a good enough excuse. It was a custom to release tax returns, but that by its nature means it wasn’t required. Trump’s entire campaign was about doing things differently than career politicians. If Congress wants to make it an actual law in the future, go for. THEN you can complain about people violating it.

          1. Being upset that they dared to elect him anyway is not a good enough excuse.

            There are other reasons. That you choose not to believe them is irrelevant.

        5. What part of volunteer don’t you understand?

          And, they’d have to amend the constitution, not just pass a statute.

        6. Well, I guess it wasn’t previously “voluntary”, if the moment one of them decides not to, a subpoena issues.

          Perhaps they will pass such a statute. Maybe it would even get past a veto. It wouldn’t be retroactive, though.

  5. I think a core problem is that the subpoenas are issued before legislation is drafted and therefore there is no way to judge the constitutionality of the legislation.

    If legislation is determined to be unconstitutional, do all subpoenas issued on the subject become invalid? What would the redress be?

    If congress hold hearings on healthcare, would they be invalid because a possible legislation would be to have an individual mandate that threatened jail time?

    The legislative process most frequently involves not passing legislation. Would choosing to not pass unconstitutional legislation make any subpoena valid?

  6. Professor Somin’s argument is similar to, but not the same as mine. I don’t think anyone who has seen my comments can interpret me as anti-Trump, but alas he should lose this case.

    Why? Because the IRS records are held on federal property and thus Congress actually has a generalized police power there. For instance, Congress has Murder laws (18 USC 1111) for murders committed on boats in national waters, federal buildings, etc. How can Congress not have jurisdiction over IRS maintained tax records?

    I think I would rule in the opposite fashion if Congress issued the same sort of subpoena to a state agency or a private company for this sort of record, since Congress has no police powers in those instances.

    1. I don’t recall seeing your comments, so I express no opinion as to whether or not you’re anti-Trump. But you seem to have a pretty shaky grasp on the meanings of “Congress”, “police power”, and “subpoena”.

    2. Even if what you say is true, the idea they want the returns so they can maybe adjust tax laws is utterly ludicrous sophistry.

      They want it so they can leak it and embarrass him. They have stated as such as some said the American people should see it.

      Those in power are not supposed to use the investigative power of government against their political enemies. This includes filching through personal stuff looking for something, anything! to embarrass them with. Or even illegal stuff sans evidence to initiate the search.

      The joy some have in seemingly finding a loophole so Congress can filch at will, well, Hell. Step away from the Constitution.

      Our liberties are not safe in your hands.

      1. Are you an attorney?

        Look at rational basis. You don’t get to take pretext as just a given because you find it unbelievable.

        Your partisan gut isn’t judicially cognizable.

      2. They want it so they can leak it and embarrass him.

        Are you a mind-reader? Who is this “they?” Once again, you dig up something one or two people said and proclaim it to be authoritative Democratic Party policy.

        That’s a BS argument, no matter how often it’s wielded.

      3. Why Congress desires to ban rape in federal buildings is irrelevant.

  7. Congress CAN spend on anything it wants to spend on so long as it does not violate an express Constitutional right so the proposed limit on subpoenas to subjects of Congress’s delegated powers makes no sense.

    Moreover, even if that does not satisfy you, Congress certainly has the power to propose Constitutional amendments on anything, including expanding the powers of the Federal Government. Congress could therefore subpoena anything on a theory that it is exploring expanding its powers.

    But this is all silliness. As I’ve stated in the other thread, the idea that the national legislature has a subject matter limitation (as opposed to privilege limits, burden limits, etc.) on its subpoena power is bizarre, and we’ve gone 250 years without this issue having really arisen until Trump decided to take insanely maximalist positions on his power to ignore Congress and everyone else.

    We live in a country of 350 million people with the largest economy in the world, the idea that the national legislature cannot use its subpoena power to investigate and explore just about any topic is hard to take seriously.

    1. As noted in the other thread, a prior President turned over his freaking blood in response to a subpoena and another turned over hours-and-hours of tapes of private conversations in response to a subpoena so Trump crying that he is immune from all subpoenas is laughable. He can’t turn over his tax returns … call the wambulance. You are the President of the United States – you have responsibilities. Either comply with the subpoena or raise specific objections to it (not that you don’t have to comply with any subpoenas but that there is a reason that you don’t have to comply with THIS subpoena).

      1. Raise objections? Ok.

        Congress should not target its investigative powers against specific individuals for the purpose of embarrassing them.

        That should stop it cold.

        “If Congress can articulate a lie that’s constitutionally sufficient, they get to embarrass that individual.” Wth lawyers.

        1. Congress should not target its investigative powers against specific individuals for the purpose of embarrassing them.

          This is a laughable argument coming from Republicans. Ever heard of Benghazi?

          1. Our utter incompetence got our ambassador killed and then we spent weeks lying about it right before the election, with full national news media complicity. How dare these people try to embarrass us about that?

            1. Haha, look who still thinks Benghazi is a scandal!

              Even in the fact of countless negative findings by countless partisan committees and bodies, Ben_ keeps hope/hate alive.

              1. I do. Lying to the American people for weeks about a known cause. Scapegoating some poor shlub. Not lifting a finger to help men fighting a thirteen hour battle. Ignoring dozens of frantic pleas for either evacuation or additional security from the ambassador. Yeah nothing to see there. None of this is even in dispute at this point. Incompetence, callousness and mendacity.

              2. The investigation revealed that Hillary was illegally keeping an email server that was processing classified information, including messages revealing the lack of security and danger risks at the Benghazi facilities.
                That fact, and the resulting investigation, were not insignificant factors in her loss. By any rational measure, that qualifies as a ‘scandal’.

              3. Ha ha, look who still doesn’t acknowledge reality.

            2. You a Clinton Death List guy as well?

              1. This crap isn’t working anymore.

                1. They don’t really like Americans. They’re making that clear to more and more voters all the time, and it has reached a fever pitch with the dismissive attitude toward workers who want to reopen the country so they can earn a living.

                  1. Yeah, screw you as well.

    2. We live in a country of 350 million people with the largest economy in the world, the idea that the national legislature cannot use its subpoena power to investigate and explore just about any topic is hard to take seriously.

      Since the Congress has the power to investigate and explore just about any topic, and since sex trafficking is a topic, perhaps the Congress can issue subpoenas for any and all information related to Jon’s purchase of sexually explicit movies, literature, toys, etc.

      Yes, it is hard to take seriously.

      1. If Congress had a specific reason to investigate Jon, it probably could. You’re failing to distinguish what Congress “can” do from what Congress “should” do.

        1. Whaf if Congress’ desire was to leak this porn info to embarrass John, and had nothing whatsoever to do with any potential legislative changes? What if, by embarrassing John, they affected John’s chance to get elected, which was why they decided to do this in the first place, including using federal money to pay constitutional lawyers to gin up lying, fraudulent sophistry?

          What “if”? Yeah, “if”.

          1. Hmmm, that’s sounding an awful lot like all the Hillary Clinton investigations the Republicans conducted.

    3. We live in a country of 350 million people with the largest economy in the world, the idea that the national legislature cannot use its subpoena power to investigate and explore just about any topic is hard to take seriously.

      You may want Congress to have such powers but unfortunately it wasn’t granted such by the Constitution. Yes Congress has twisted the N&P clause into a pretzel to try to gain subpoena power but it’s a complete sham.

      1. The 4th and 5th Amendments are all about preventing the king from using the investigative powers of the state against their political opponents.

        This utterly and completely violates that principle because reasons. Even if you think Congress should be able to investigate things for the purpose of legislation, you should be terrified of them using it against targetted individuals who are their political opponents, for reasons that have to do with hurting those opponents, not investigating the need for potential law changes.

        The ability to just lie why they are doing it, when that is transparently not the case, should not be a get out of jail free card. Or, more accurately, a “we get to be the Tyrant King George III” card because (whiney voice) we realllllly wannnnnnnt to.”

        1. The 4th and 5th don’t apply in this case. Have you considered why the Constitution is written like that? Have you even considered that the Constitution is not written like that? How quickly you take refuge in purposivism and principle and auras and penumbras.

          Your entire argument is that you’ve decided the Dems are acting in bad faith and they can’t get away with it, man. But that’s not proven just because the right has decided it is.

          1. You’re really good with that basic human rights don’t apply argument. Democrats love unlimited power and carving out bigger and bigger areas of life where basic human rights don’t apply.

            1. 4th and 5th don’t apply in civil actions either. We’ve been denying basic human rights since the Union began!!!!

              Please, wikipedia or something before you post.

    4. “Congress certainly has the power to propose Constitutional amendments on anything, including expanding the powers of the Federal Government. Congress could therefore subpoena anything on a theory that it is exploring expanding its powers.”

      That’s just ridiculous. In the extreme, congress could be contemplating something that they can’t tell us about, but they need all citizen’s personal data to inform the process.

      Reasonableness requires that the legislation contemplated be made know, and the information request be related to that legitimate legislative purpose.

  8. For example, Congress could not subpoena information related to Trump’s many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state regulation, not federal.

    That seems wrong. There are plenty of federal statutes that look to state family law questions. The Internal Revenue Code imposes different obligations on people who are married or divorced, for instance. And there are federal consequences for failing to pay state calculated child support. It seems to me that Congress has at least as strong an interest in seeing that those laws are fairly enforced against the president as the ones used to justify the transparently pretextual subpoenas at issue here.

  9. “For example, Congress could not subpoena information related to Trump’s many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state regulation, not federal.”

    Odd that a special prosecutor could do that, but not Congress.

    1. Why do you think that’s odd? Congress is not an investigative body.

      1. It’s been called an “investigative body” when it is, you know, conducting investigations. E.g., Watkins v. United States, 1957.

        1. In a 6-to-1 decision, the Court held that the activities of the House Committee were beyond the scope of congressional power.

          1. In that case the HUAC could not articulate a criminal basis for its inquiry. Here, of course, the basis is clear. There is was question that Congress is an investigative body.

            1. Setting aside that having a “criminal basis” for inquiry does not grant Congress subpoena power, please explain what you think is the criminal basis is for getting tax returns. The IRS has the proper responsibility to investigate tax fraud not Congress. No one with a brain believes that Congress getting the tax returns is going to uncover tax fraud. Also by the way it won’t disclose his wealth or lack thereof. There is no requirement on a 1040 to reconcile assets and liabilities. On a 1065 yes but unless all of Trump’s wealth is in “The Donald, LLC” then the tax returns will be of no help.

              Of course the Dems don’t just want his tax returns they want to be able to comb through all his books and records as well. This has not been done to any other President but to the Dems Trump is special.

              1. The IRS has no jurisdiction over any criminal (or treasonous) activity unless it involves tax fraud. Trump’s returns could say “$10 million received from Putin to pay hit men to assassinate Democrats” and the IRS would take no action so long as the relevant taxes were paid.

                1. Still doesn’t create Congressional power to investigate criminal activity. They are not the DOJ much as they seem to want to be.

  10. However, if the amendment power is the only basis for a subpoena, Congress would at the very least have to be in the process of actually holding hearings or otherwise considering some potential amendment.

    That does not seem right to me, unless, “considering,” is read to include also, “defeating.”

    The purpose of exploring factual background to inform Congressional action cannot be limited to an attempt to accomplish any particular action in question. It must also permit attempts to inform a decision to forgo such action. Whether Congress acts, or elects not to act, it will do so more wisely if it is informed, than if it acts in ignorance.

    Whichever way a decision may be trending, gathering information is part of deciding whether to keep going, to reverse course, or to act differently. Sometimes, information may be needed to support a wise decision to do nothing at all—simply to leave alone things which are already working well. To do that, it is necessary to be able to discover how things are working. And that includes even political things.

    Performing the legislative function requires the ability to use subpoenas to inform decisions to accomplish any of those ends. To do that according to lights Congress itself determines is an inherent part of its legislative power, and ought not be for a Court to review.

    The question about political motivation is also worth reflection. Even the term, “political,” has today become a charged and opprobrious word—a consequence, of course, of long years (centuries, actually) of accumulated misbehavior by public officials seeking self-aggrandizement. That motive was well know to the founders themselves, who did not hesitate to condemn demagogues. That condemnation itself was a species of political advocacy.

    Nevertheless, politics was, always has been, and hopefully always will be, the nation’s preferred method for governance of its public affairs. It would be peculiar indeed if a part of government designated a “political branch,” was thereby barred from using the subpoena power to pursue better informed, politically wiser governance. Courts must not disrupt the political process, nor attempt to stanch the flow of political information. It may accurately be said that the only legitimate remedy for bad politics is more politics.

    If we accept the notion—as we ought to do—that politics may be conducted destructively when it is conducted poorly, then we must also concede that politics may be conducted beneficially when it is conducted well. Under that premise, we must accept also the notion that decisions about using subpoena power for political purposes ought to be left to the political branches, and not to the courts. The political process itself, and not any interposition by the courts, must supply the limitations needed to prevent political abuse of the subpoena power.

    Not for nothing do we celebrate the ultimate defeat of McCarthyism, and its corrupted use of politicized subpoenas, as one of the triumphs of American politics, and a high point in American governance. That did not come from judicial intervention, but from the practice of politics itself. It would be dangerous indeed to undo that capability, and put it instead into the hands of the one branch of government which is not politically accountable.

    But alas, a push to insinuate the Court into political decision making is the very essence of the justices’ often-repeated demands that political litigants systematize limitations on their own access to information, and do so according to principles the justices themselves approve. Letting that go farther than it already has would be unwise.

    Far better than Justice Roberts’ repeated demands that litigants constrain themselves within practices that are rightly the litigants’ own to judge, would be to remind Justice Roberts that the Court needs to constrain itself. Tell the Court not to intrude where it has no business. The Court, not being a political branch, has no business judging political subpoenas.

    1. lathrop, incredibly we agree = The Court, not being a political branch, has no business judging political subpoenas.

    2. So…it’s ok to deliberately and freely investigate political opponents for the purpose of hurting them?

      Step away from the Constitution. Our freedoms are not safe in your hands.

      1. Krayt, Don’t worry about me, your freedoms are not in my hands.

        Sometimes political investigations are not okay. It can be wrong if the government does the investigating. McCarthyism was wrong. The political process was the remedy. Give some thought to what would likely have happened had a Democratic-dominated SCOTUS stepped in to order McCarthy to stop with the subpoenas investigating communists in the Truman administration. Why do you think that did not happen then? Why is it happening now that the Roberts Court is asking pointed questions about subpoenas from Democrats?

        Of course, there will always be a grey area. If conduct, including political conduct, is investigated on the basis of probable cause, is that a political investigation? Taking an example as entirely hypothetical, if the guy running for President is looking on the basis of colorable evidence to be an agent of a hostile foreign power, or susceptible to blackmail by a hostile foreign power, then an investigation by a government headed by his political opponent may be tricky. But it would be wrong if it were blocked by a politicized partisan court which also happened to back the shady-looking challenger.

        Politics can never be a do-anything-free cover for crime. There will always be some categories of political crime, like bribery, or espionage on behalf of a foreign power. But my point is that it is almost always going to be worse if courts stop politically motivated investigations than if the government does them.

        The government can be punished politically for overreach. Judicial supremacy is harder to check, and harder yet to fix. I doubt you think your freedoms would be as safe in the hands of a Democratically politicized court as they were, say, in the hands, of the Obama administration.

      2. So…it’s ok to deliberately and freely investigate political opponents for the purpose of hurting them?

        Without weighing on the subpoena issue for the moment: when I’m king, I’m banning the word “ok” from political discussions. It’s a meaningless word, allowing people to surreptitiously shift from discussing legalities to proprieties without thinking.

  11. Of course their is a limiting principle. Without it there would be nothing but constant harassment of any sitting President, which is what we are seeing right now. If the Democrats win this, they will regret it for all time.

    1. Fundamental mistake there: Republicans reason in that way, because they view politics as a long term give and take, and fully expect, when they are in power, to end up out of power again.

      Democrats do NOT reason that way, because they anticipate a time when they’ll end up irreversibly in power, due to the inevitable march of history, or demographic trends, or whatever. It always comes to them as a shock when their moment in power ends.

  12. “For example, Congress could not subpoena information related to Trump’s many affairs and his divorce settlements with his two previous wives. Marriage and divorce are matters largely left to state regulation, not federal.”

    You mean they couldn’t simply imply there is a problem enforcing court orders across state lines and us that as a pretext? Or are we going to make anyone presented with a congressional order sue each time to prove their valid legislative purpose?

    The professor should know better.

    1. And in a reverse case, you can bet there will be no shortage of judges ready and willing to step in and say Congress’ reasoning is insufficient, or a cover story for political attacks, and conveniently forget all the “it’s political branches fighting and the judicial branch shall have no say” talk.

      Take that to the bank.

  13. And let me say for the umpteenth time I am not her to defend Donald “Lock her up!” Trump, whose rhetoric pulled all this crap down onto himself by wanting to do the exact same thing — use the investigative power of the government to trash his political enemies.

    Many of you suffer TDS and want to trash protections to accomplish this goal. Don’t. “Why” should be self-evident on a blog like this.

    1. Krayt:

      Governance is about making tradeoffs. We trade an awful lot of gun deaths for having a functioning Second Amendment. To quote the name of another thread further down on this blog, we trade an awful lot of religious shenanigans for having a working First Amendment.

      I absolutely agree with you that there is a significant amount of bad faith on both sides when it comes to Congressional investigations. But the cost of not having them is a loss of transparency. As a voter, I want to know if POTUS has conflicts of interest that are preventing him from doing his job, and if he has any financial issues that might make it dangerous for him to have a security clearance. In my view, bad faith on both sides is the price we pay, but transparency is important enough to make it worth it.

    2. Except your argument is particular to Trump – that he’s being targeted and abused in a way Congresses in the past have not.

      The counterarguments, if you bother to read them, are structural – talking about Obama, or future Presidents.

      Despite your protestations that your opponents are obsessed with Trump, it looks like you are being the myopic one, feeling so aggrieved by his detractors that you are willing to make the executive effectively above the law in order to prevent the abuse that you see so clearly.

  14. I just want to make sure I understand this.

    Congress cannot investigate the executive branch if the executive branch …. doesn’t want it to, right?

    So, anytime the Executive says, “Nope, I think I don’t want to. I think … what, this is to embarrass me. Or maybe someone. Or I don’t like it,” then Congress can screw off, right?

    I mean, what if a member of Congress actually said that an invesitgation was a complete pretext to embarass someone?

    Like …

    “What you’re going to see is a liberal speaker, that takes a libera Congress, that puts a strategy to fight and win. And let me give you one example. Everybody thought Donald Trump was unbeatable, right?

    But we put together a tax special committee. A select committee. What are his numbers today? His numbers are dropping. Why? Because he’s untrustable. But no one would have known that any of that had happened had we not fought to make that happen.”

    That would be a smoking gun!

    ….oh, wait. It’s almost like Congress has always overseen the Executive branch, and the only thing new here is that Donald Trump is asserting King Geroge’s immunity, and this supported continue to be too dumb to realize that they are the suckers.

    Keep on truckin’ morons. The problem has never been Trump; anyone with half a brain knew exactly what he is. The problem is …. well, those who don’t have half a brain.

    Eh, maybe Jared will fix this problem too. I mean, we have peace in the Middle East, and he solved the Coronavirus.

    1. “I just want to make sure I understand this.”

      You don’t. Head on back to the EEOC.

      1. Oh, how cute.

        You actually read a whole sentence! That’s a record for you.

        I hope someone is helping you change your depends.

        1. You dare make a comment like that after the loose pile of warm shit you dumped out to begin with?

  15. Somin’s legitimate purpose seems to work out to that the Democrats want the information, so that they can embarrass Trump, and little more. Why not demand the tax records of Nancy Pelosi and her husband (often accused of conflicts, and with strong evidence of recent insider trading), the Clintons and their family foundation (which brought in over a billion dollars), or even the Obamas (book deals)? Because they are Democrats.

    One problem is that our tax laws don’t violate the 5th Amdt protection against self incrimination because of IRS privacy provisions. If Congress can acquire anyone’s tax records just by demanding them, and then providing a pretext why Congress would be interested in them (as Somin did for Trump’s tax records), then everyone should quit filing tax returns because of its inherent self incrimination.

    As usual, hyper partisan TDS on the part of Somin.

    1. Do you see how fact-specific your objection is? The question here is about how our republic is put together, not whether Trump is being treated unfairly.

      Seems like you are the one with the Trump fixation.

      As for Tax Laws as incrimination, Al Capone agrees.

      1. That we had to resort to the tax code to get him is a stain on the country, not a virtue of the tax code.

        1. That’s…kind of a hot take.

          I think it’s generally accepted that we got Al Capone in a way well in keeping with the laws and values of this country.

          Until today, I guess. When a bunch of people suddenly discover that we’ve been operating with awful, privacy shredding policies for generations.

          From what I see you seem legit – i.e. you are operating on privacy principles out of step with America at large, but long and sincerely held. I do not believe that is the case for many of those here going in for more special pleading due to the Democratic perfidy they see as obvious.

          1. Its my longstanding take.

            I am glad Al Capone eventually went to prison. I am dismayed we had to use the tax code to do it. Indeed I find many of the provisions in the code then and now highly immoral. OTOH, I don’t find murder, murder for hire, and various other laws that Capone almost certainly violated immoral.

      2. No one has yet described a valid legislative purpose that is served by getting Trump’s tax returns. The right whined for years about not being able to get Obama’s college transcripts, etc., and they were correctly ridiculed for it. Now ‘splain me the difference. This is nothing more than political campaigning. It’s understandable when things are going south for the Dems that they would want to change the subject from the lies, deceit and criminal activities of the past four years but this isn’t it. Better stick to calling Trump a mass murderer.

        1. First, many have, you just don’t believe them.

          Second, that’s not even the right question.

          Third, look at Lathrop’s post (https://reason.com/2020/05/12/the-limiting-principle-for-congress-power-to-subpoena-presidential-records-isnt-hard-to-find/#comment-8252355) which explains the policy discussion pretty well. Basically, you and the judiciary shouldn’t get to decide what’s political campaigning and what’s good faith.

          Congress complained about Obama but never really opened an investigation, did they? And actually the complaints came from cranks like Judicial Watch, not Congress.
          Seems like maybe your comparison kinda is very bad and is very different.

          Your partisan charges that Dems are all evil criminals doesn’t really make your argument seem much stronger either. In fact, it makes me wonder if it’s more an exercise in self-group-validation than an actual argument.
          That your argument is mostly about Obama and then about Dems being the real criminals supports that reasoning isn’t in the fore here.

          1. First Lathrop doesn’t explain much of anything very well and this is no exception.

            Second Congress is not an investigative body. They have a major wannabe about it but they can’t assume the powers of the DoJ just ’cause.

            As usual you misconstrue what I have said. That there were lies, deceit and criminal behavior does not mean that all Dems are evil criminals. I don’t think you or my other liberal friends and family are evil criminals. Also please give up the gibberish: “self-group-validation.”

            1. “First, many have, you just don’t believe them.”

              No one has described a valid legislative purpose not “valid purpose for getting at Trump.”

              1. You don’t get to decide validity. Crowing that you must be correct because no one has yet convinced you is a self-licking ice-cream cone situation.

            2. I sometimes have some issues following him, but I thought his point was well drawn that the judiciary reviewing Congress’s motivations is a pretty bad idea.

              Your rant about how the Dems are covering up their own wrongdoing remains off-topic speculation that is relevant to your own state of mind, and supported more by right-wing narratives than evidence.

              1. It isn’t dependent on motivation. Congress could have the real motive to get dirt on Trump but if they advance a legitimate reason that it is crucial to inform legislation then it passes. Otherwise no even if the motives are pure. If it is challenged by the executive who else but the judiciary can resolve it?

    2. Seems to me we had the tax returns of the Obamas’ and Clintons’ preceding and during their time in office. Those are pertinent to our understanding of their motivations while they were acting on our behalf. For some reason I don’t have that confidence with the current president despite his grandiose claims to follow the precedents.

  16. I just don’t understand the structural reasoning where the House decides how government funds are allocated, the executive branch executes those decisions, and the House has nothing to say and no oversight power about whether their instructions are carried out.

    It makes no sense. It is akin to going to the CFO of a corporation, whose job it is to plan the company’s finances and cash flow, then telling them that they can’t see the bank statements or anything about what the controller and the accounting department is doing. Yet the CFO has to report to the board the accurate status of the corporation, and could be sued or even go to jail for making false statements.

    It is crazy. But that is what the Trump apologists here and in the court are rooting for. They are frantically digging for any precept no matter how remote to justify it.

    And all the while we are expected to pretend the arguments and decisions would be exactly the same if it was Obama, Biden, or anyone non Republican in office.

    1. “…and no oversight power about whether their instructions are carried out.”

      They have oversight power. They get to call up executive officials for their dog and pony shows. They just don’t get to be the FBI. That’s a bitch of a thing but there it is.

  17. So, President Trump has no Fourth Amendment right to be secure from seizure of his papers and effects, barring probable cause, because congressional rules say differently? Please explain that inverted legal hierarchy, professor.

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    1. The 4th does not apply to civil actions, much less to the case at bar.

      1. That is absolutely incorrect. There is tons of case law and literature on 4th amendment protections in civil cases.

    2. You seem to not grasp the difference between a warrant and a subpoena.

  18. Congress has set limits/procedures on the tax committees obtain tax returns. https://fas.org/sgp/crs/secrecy/LSB10275.pdf So I would have asked why the intelligence committee doesn’t follow the same requirements of the Ways & Means committees in obtaining tax returns. Even though it’s from a third party that means instead of asking for the IRS for the info let’s subpoena H&R Block. House attorney admitted d medical records would be off limits. So what. Instead of asking the physician for his records let’s subpoena the health insurance carrier, company that did the testing, all third parties.

    1. Yes, lets have the Supreme Court tell Congress they need to run their committee procedures in this way and not that way.

      This seems like it would be a proper use of the judicial power, and certainly something to be supported by the party that’s always wailing about legislating from the bench.

  19. I find it interesting that few commenters on the VC refer to what is right and wrong in interpreting laws and regulations. Here’s my take.

    0. Tax returns fall under the definition of someone’s papers in the context of the 4th. This information is only revealed to the IRS for the purpose of paying taxes, and the IRS is required by law to keep it private. For example, if a cop comes to my door because he has a hunch that I’m a drug dealer, and that he can prove this if he has my tax returns, and demands them, I say “come back with a warrant.” Can he legally arrest me for failing to comply? No.
    1. Congress is not a part of the executive branch, therefor not in the business of enforcing the law. If they are investigating an individual for wrongdoing, they are overstepping their charter. They should refer such matters to the DoJ.
    2. Even if they were a law enforcement agency, they couldn’t subpoena someones private records; they would go to court and have a judge do that.
    3. If Congress is asking for Trump’s private papers to support a legitimate legislative purpose, they would have to demonstrate why this individual’s papers are necessary for that purpose; indeed, state what the purpose is. I don’t recall Congress ever delineating the legislative purpose Trump’s papers serve.

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