On Monday, the US Supreme Court dropped a jurisprudential bombshell—in the form of an order—that has legal scholars and court commentators abuzz.
It addressed lawyers in two highly-anticipated matters about subpoenas from congressional oversight committees to president Donald Trump’s accountants and bankers, including Mazars USA and Deutsche Bank. Those entities say they’ll turn over requested records, like Trump’s taxes, with a court order. But the chief executive intervened, claiming that the president’s accounts are shielded from review, and his attorneys argue that lawmakers are using oversight as a pretext, masking a political intent to harass Trump.
The issues will be debated during telephonic oral arguments on May 12. And the new order says little, simply requesting added briefs by May 8, “addressing whether the political question doctrine or related justiciability principles bear on the adjudication of these cases.”
Basically, the court is asking if it even can decide the cases because certain matters are outside its purview. The terse late-game request speaks volumes. “Everybody in the know saw that question and thought at least one justice hoped to dodge a decision,” professor Michael Dorf of Cornell Law School tells Quartz.
The political question doctrine says that certain issues are not for courts to decide because the Constitution specifies they’ve been committed to another government branch, like impeachment belongs to the House and impeachment trials belong to the Senate. But other factors that are not strictly speaking constitutional may come into play, too—a “gloss” as it’s called in legal parlance—derived from case law. That leaves gray areas.
Constitutional law scholar Tara Grove of William and Mary Law School admits she “was kind of flabbergasted” by the court’s order, yet characterizes the possible motivation diplomatically. “I wouldn’t say the justices are trying to ‘evade’ deciding the cases because evasion has a pejorative connotation, and if the court determined it could not or should not decide based on the political question doctrine, some might call it a ‘wise exercise of judicial discretion.'”
The political question doctrine
University of Virginia School of Law professor John Harrison is steeped in this topic. Apart from straightforward situations when the Constitution speaks directly to control residing in a particular branch of government, he explains that there are arguably”prudential” factors, based on some lower court cases. That is to say, courts can exercise some judgment. “That’s probably the thinking about the political question doctrine that prompted the briefing order. I don’t think that the [Supreme] Court’s cases support that understanding, but if the justices decide that they do, they will,” he tells Quartz.
The doctrine’s name is confusing. After all, courts are forever deciding cases with political implications—like matters about gun rights, abortion, and elections. “It’s not political in the colloquial sense,” Cornell’s Dorf explains. Instead, political here means the matter is controlled by another government branch, not the judiciary. “People hear it and think that any case with political implications is non-justiciable and that is clearly false.”
But even for legal scholars the concept is murky. “It’s very difficult to get a good sense of the scope because it’s not resolved. You need to know all of the prior cases and decide if this falls on the political question spectrum or not. That can be done with some skill but not that well because the court has also used the doctrine to duck cases it doesn’t want to hear,” he says.
Grove of William and Mary has written about this tricky doctrine’s history. In sum, she says it’s “messed up.” The Supreme Court has sometimes not decided cases relying on the concept, although what it is essentially saying is that it cannot or will not figure out the right test. For example, last year, in a partisan gerrymandering dispute, the majority of the court concluded that the matter was non-justiciable because they couldn’t come up with, in their words, “a limited and precise standard that is judicially discernible and manageable.”
Turning to Trump
Looking back, Supreme Court precedent indicates it can decide the Trump financial matters because the political question doctrine isn’t applicable. Certainly, lower courts haven’t cited it as an obstacle, which is why Trump turned to the nation’s most powerful jurists, hoping for another outcome.
A win for the president is far from guaranteed, however. This is not the first time a president’s records or testimony have been subpoenaed when he’s in office. In the 1974 case United States v. Nixon, Richard Nixon’s recordings were sought in a federal criminal investigation of his aides. Bill Clinton was subpoenaed in 1997 for a federal civil suit. Both times, the high court ruled that presidents were not immune to these requests, although the decisions left open some questions. Ultimately, the rulings prompted Nixon to resign and forced Clinton to face trial.
There is no doubt that congressional committees have subpoena power. They subpoena private and government parties, including the executive branch, all the time. But Trump’s lawyers argue that House committees claiming to need records are just haranguing the president for political reasons.
Even if these claims are true, and this could be proven by the statements or actions of committee members, the argument is disingenuous coming from Trump’s counsel, Dorf says. “It’s somewhat remarkable to me that the president’s lawyers are arguing that motives invalidate the requests given [the handling of] his motives in the travel ban cases.”
In 2018, the Supreme Court found an executive order prohibiting entry into the US for citizens from five Muslim-majority countries, Venezuela, and North Korea was valid because it cited national security concerns. Hawaii had challenged the order, saying the president’s anti-Muslim rhetoric in tweets and other public statements showed the real motive was unconstitutional animus against members of a religious group. But Trump’s lawyers countered that the sole relevant reason was expressed in the executive order about national security and a majority of justices agreed.
However, in Masterpiece Cakeshop, a case about a baker’s refusal to make a wedding cake for a same-sex union, the court examined comments from the Colorado Civil Rights Commission ostensibly disrespecting the baker’s Christian beliefs and animus was deemed relevant. “Both the court and the Trump administration have been inconsistent on motive,” Dorf contends.
Bye-bye congressional oversight?
What is clear is that a finding of non-jusiticiability in the Trump financial records cases would be problematic from an oversight perspective. The president, his administration, and business associates would then only ever have to comply with subpoenas if they feel like it. But the administration’s resistance to these requests during the House impeachment proceedings and these pending cases shows Trump won’t voluntarily comply and won’t make it easy for anyone else to either.
That may be because the president has things to hide. Trump is the only president in recent history who hasn’t disclosed his taxes. This makes it impossible for lawmakers or watchdogs to determine when or if there is a conflict of interest between his business endeavors and his administration’s governmental efforts. Most recently, the president signed a $2.2 trillion coronavirus relief package into law that happens to include retroactive tax loopholes for the rich, utterly unconnected to the Covid-19 pandemic. These provisions may well benefit him. Knowing about Trump’s taxes could help illuminate that issue.
Still, Trump’s accountant and bankers are private parties who don’t necessarily want to run afoul of Congress. Perhaps they will turn over the requested records even if the Supreme Court doesn’t order it. If they do not, Grove notes, Congress has another option.
Cheese and wine lockup
Although they haven’t used their enforcement power in nearly a century, lawmakers could hold the subpoenaed parties in contempt of Congress and lock them up, the professor says. Theoretically, if Trump’s accountants and bankers don’t comply with lawmakers because there is no court order forcing them to do it, the committees can have the Sergeant-at-Arms arrest and hold them for contempt through the end of the House term, or 2021.
Traditionally, Grove explains, a congressional contempt order ended with the defendant drinking wine and eating cheeses while jailed in a room in the Capitol. “It’s hard to imagine that the House would do that,” she laughs.
But even if lawmakers did hold a private party in contempt, the matter would end up in the courts again. Say the CEOs file writs of habeas corpus, challenging the detention. A court would have to rule on those. And ultimately it’s absurd to claim that courts can’t rule on subpoenas because that’s precisely what judges do.
Grove suspects the Supreme Court’s order was a “subtle hint” to the parties to settle. Oral arguments are next month but they could resolve the disputes before the justices rule by term’s end in late June. She points out that under the George W. Bush and Barack Obama administrations, congressional records disputes were ultimately settled out of court and no one was locked up.
Settlement might delight the high court. But it would fall far short of what many others desire.
A coalition of progressive activist groups, including Demand Justice, wants action on the Trump financial records cases and vociferously protested a delay in arguments prompted by the pandemic. Christopher Kang, chief counsel of Demand Justice, tells Quartz that the political question doctrine is not applicable here and that conservative justices, politically allied with Trump, injected the last-minute issue to avoid a direct ruling against the president.
“This is not a challenging case,” he contends. What’s more, a finding that the matters are non-justiciable could broadly shield Trump from congressional investigation and oversight generally, providing the president with what Kang calls “a get out of jail free card.”