The case that may determine if former White House Counsel Don McGahn must testify before Congress – about whether President Trump obstructed justice during the Mueller investigation – is being argued on appeal tomorrow, January 3rd. And, three other cases concerning requests for President Trump’s financial records – issued by Congress and, separately, by a New York state grand jury – will be heard by the Supreme Court in early 2020. All of these cases involve subpoenas – written orders compelling an individual or organization to produce evidence or to testify – and raise important questions about the power of Congress and the states to investigate the president and his aides. Guests Steve Vladeck of the University of Texas School of Law and Andy Grewal of Iowa Law join host Jeffrey Rosen to explain all four cases:
- These three cases will be heard by the Supreme Court in March 2020:
- Trump v. Mazars: The House Committee on Oversight and Reform issued a subpoena requesting that President Trump’s accounting firm Mazars USA turn over financial records of President Trump and several of his business entities. The committee states that it's investigating whether and how to legislate on presidential financial disclosure requirements. The U.S. Court of Appeals for the D.C. Circuit ruled that the committee’s subpoena is valid.
- Trump v. Deutsche Bank: The House Committee on Financial Services and the House Intelligence Committee issued subpoenas requesting that President Trump’s creditors, Deutsche Bank and Capital One, release documents related to President Trump’s, his family’s, and his business’s finances. The committees state that they’re investigating whether and how to legislate on the practices of financial institutions and potential presidential conflicts of interest. The U.S. Court of Appeals for the Second Circuit upheld the subpoenas. In this case and Mazars, the Trump administration is arguing (among other things) that the subpoenas exceed the committees’ powers and do not serve a “legitimate legislative interest.”
- Trump v. Vance: Cyrus Vance, district attorney of the County of New York, issued a state of New York grand jury subpoena requesting nearly 10 years’ worth of the president’s financial papers and his tax returns for an inquiry into whether the President or his businesses violated New York law. The U.S. Court of Appeals for the Second Circuit upheld the subpoenas. This case differs from the other two because the subpoena was issued by a state, not federal, authority.
- The McGahn case:
4. Committee on the Judiciary, U.S. House of Representatives v. Donald F. McGahn II: The House Judiciary Committee issued a subpoena calling for former White House Counsel Don McGahn to testify before the committee on whether President Trump obstructed justice in Special Counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. election. U.S. District Judge Ketanji Jackson ruled that McGahn must testify, and the Trump administration’s appeal of that decision will be heard by the U.S. Court of Appeals for the District of Columbia tomorrow.
FULL PODCAST
PARTICIPANTS
Andy Grewal is a professor at Iowa Law. A tax expert, Professor Grewal recently wrote the George Mason Law Review article “The President’s Tax Returns” and was a Graduate Tax Fellow at Georgetown where he earned an LL.M. in taxation with honors.
Steve Vladeck is the A. Dalton Cross Professor in Law at the University of Texas School of Law. He co-hosts the "National Security Law Podcast" and writes widely, including for SCOTUSblog where he recently wrote about the financial records subpoena cases.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- Trump v. Mazars USA, LLP (D.C. Cir. 2019) (opinion for the court by Judge Tatel, dissenting opinion by Judge Rao)
- On petition for rehearing en banc
- Petition for a writ of certiorari at the Supreme Court
- McGrain vs Daugherty (1927)
- Trump v. Deutsche Bank (2d Cir. 2019)
- Trump v. Hawaii (2019) (the “travel ban” case)
- United States v. Nixon (1974)
- Clinton v. Jones (1997)
- Trump v. Vance brief amicus curae of United States (by Solicitor General Noel Francisco et al)
- Committee on the Judiciary, U.S. House of Representatives v. Donald F. McGahn II (D.D.C. 2019) (opinion by Judge Ketanji Jackson)
- Committee on the Judiciary, U.S. House of Representatives v. Harriet Miers et al (D.D.C. 2008) (opinion by Judge John Bates)
- Harlow v. Fitzgerald (1982)
This episode was engineered by Greg Scheckler with editing by its producer, Jackie McDermott. Research was provided by Jackie McDermott and Robert Black.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people.
The Supreme Court recently announced that it will hear three important cases involving subpoenas that try to get access to President Trump's financial records. The Court will hear those cases in March 2020, and litigation continues about whether former White House Counsel Don McGahn must obey a House subpoena and testify about the Mueller investigation. The next hearing in that case is set for January 3rd. Here to help us understand the constitutional dimension of these important subpoena cases and explain their crucial implications for congressional and executive power are two of America's leading experts on the subpoena power and the separation of powers.
Steve Vladeck is the A. Dalton Cross Professor in Law at the University of Texas School of Law. He cohosts our very popular sister podcast, National Security Law, and he writes widely, including for SCOTUSblog, where he recently wrote about the financial record subpoena case. Steve, it's great to have you back on the show.
Steve Vladeck: [00:01:25] Likewise, Jeff. Thank you for having me.
Jeffrey Rosen: [00:01:27] Andy Grewal is a professor at Iowa Law. A tax expert, Professor Grewal recently wrote the George Mason Law Review article, The President's Tax Returns, and was a graduate tax fellow at Georgetown. Uh, he also has written widely about these cases. Andy, thank you so much for joining.
Andy Grewal: [00:01:46] Glad to be here.
Jeffrey Rosen: [00:01:47] Steve, we have four cases to discuss, and let's begin with Trump v. Mazars, which is a subpoena for financial records from President Trump's accounting firm issued by the House Committee on Oversight and Reform. What are the constitutional issues at stake in that case and where does it stand?
Steve Vladeck: [00:02:08] Yeah. I mean, I think, Jeff, the, the Mazars case, or at least the Trump v. Mazars case, which I think might better be understood in this conversation as the D.C. Circuit case, um, may present the constitutional separation of powers question in these cases at the highest level of generality. Uh, as you noted, in April of 2019, the House Oversight, uh, Committee on Oversight and Reform issued a subpoena to Mazars for records relating to, um, President Trump's financial records and the records of several of his business entities from both before he took office and while he was in office. Um, the president sued, uh, to enjoin Mazars with complying with the subpoena, um, and then what's important to stress off the top is the claim was not that these financial records are protected from some particular presidential privilege, rather the president's challenge, at least in this case, all along has been that Congress lacks the power to subpoena these kinds of records period, basically that, um, the House needs some kind of legitimate government interest, um, to subpoena these kinds of personal records, um, and that doing so in this context just doesn't meet that threshold.
Um, the District Court disagreed with President Trump and declined to enjoin the subpoena. Um, he appealed pretty quickly to the D.C. Circuit. Um, back in October, a divided panel of the D.C. Circuit agreed with the District Court and refused to enjoin the subpoena. Um, Judge David Tatel, uh, joined by Judge Patricia Millett, uh, wrote a pretty lengthy opinion explaining that Congress did indeed have a legitimate legislative purpose for the subpoena, in particular, that it was part of the House Committee on Oversight and Reform's investigation into whether Congress should amend or supplement current ethics in government laws, especially when it comes to the president's own potential investment in businesses that are subject to government regulation.
Um, that was over a dissent by Judge Neomi Rao. Uh, Judge Rao's dissent argued pretty, um, I think, assertively, um, that Congress can only issue this kind of subpoena, that is to say a subpoena for personal financial records that might relate to and indeed might implicate, um, the individual whose records are at issue, um, in the context of a formal impeachment inquiry, um, and that outside of the context of a formal impeachment inquiry, she concluded, Congress lacked the power to issue this kind of a subpoena.
Uh, the president then sought rehearing on en banc from the full D.C. Circuit, uh, in, I want to say, what, late November. Um, actually, yeah, so November 13th, uh, the D.C. Circuit div-, uh, divided eight to three, uh, denied the president's petition for rehearing, rehearing en banc. Judge Rao was joined in dissent by Judge Katsas and Judge Henderson, um, and then the president filed, uh, both a petition for certiorari and an application for a stay. Um, and the Supreme Court first granted the application for a stay, uh, just before Thanksgiving, um, and then, as you say, granted certiorari.
And I think the, the way that the issue is framed, um, in the Mazars case is perhaps the, sort of the broadest, uh, framing on the whole question, which is, um, does Congress have the power, um, in the context of a sort of regulatory, as opposed to impeachment, inquiry to issues a subpoena, um, for personal financial records of the president or, frankly, any other officer, um, who is subject to the impeachment power? Um, and I think that's, uh, you know ... at that level of generality, I think it's pretty easy to see why the answer to that question is going to have pretty significant implications going forward for Congress's ability to conduct oversight of executive branch officers.
Jeffrey Rosen: [00:05:48] Andy, in your article in the George Mason Law Review, The President's Tax Return, uh, you look at the, uh, Mazars case and you say, "A statute cannot transcend the constitutional limits on Congress's investigative authority. Congress enjoys a near automatic right to review a president's tax returns only through a proper impeachment hearing." And then in your really thoughtful commentary on the Mazars case, you say that, "The majority opinion is well-written and carefully reasoned. I find much of it persuasive. However, there are weak points in it which could lead SCOTUS to go the other way," and you find some of the criticisms of Judge Rao's dissents overblown and you, and you suggest a, a way that it could have been improved.
So, so tell us what you think of the majority opinion in Mazars. What, what, what are the limits and scope of Congress's, uh, power to subpoena, including the need to establish a legitimate legislative purpose, and then tell us what, what do you think of Judge Rao's dissent?
Andy Grewal: [00:06:49] Yeah. So Congress surely has an exceptionally broad power, um, to investigate. Uh, a peculiar question raised here is to what extent can it investigate or subpoena the president of the United States? As the majority properly recogni- recognizes, uh, Congress investigating or demanding disclosures from the president is different from demanding disclosures from a private citizen or a corporation, and this sets, sets up, I think as Steve nicely summarized, some key constitutional questions, including to what extent could Congress, for example, demand that the president divest his business assets? If that is a proper subject for legislation, then inquiries into his assets and holdings seem much more reasonable because some legitimate legislation can arise from these subpoenas.
If, however, Congress is highly limited in how it can, uh, regulate the president, then these sorts of information requests do not perhaps plausibly lead to potential legislation. If that is so, if these inquiries aren't related to potential constitutional legislation, uh, Congress would need to rely on the impeachment power. And, as Judge Rao, I think, rather forcefully, but also perhaps, uh, overstatedly a little bit, she emphasized that, uh, Congress had not invoked its impeachment power here, what they were really doing is not performing oversight, but rather trying to duplicate an executive branch investigation. In that context, where Congress is investigating a particular person for law violations, the proper source of authority is the impeachment power, not the oversight power, and this particular committee, according to Judge Rao, had not received that authorization from the, the House as a whole.
Jeffrey Rosen: [00:08:39] So, Steve, I hear Andy say that, uh, for Judge Rao and for, for those who might be skeptical of the subpoena power in this case, uh, Congress has to establish a legitimate legislative purpose and Andy suggested Judge Rao at least could have said clearly that the legislative power, uh, I'm quoting from his, his, his tweet, "doesn't include the power to execute the law and this is an attempt at law execution rather than investigation that could lead to possible legislation and, therefore, the impeachment power has to be invoked to save the subpoena." Uh, wh- what, what do you think of that argument and, and, and what are the Supreme Court cases against it?
Steve Vladeck: [00:09:14] Yeah. I mean, I think the, it, it's, it's the smartest version of the argument, Jeff, but I think it falls ... it, it runs run into one pretty significant trap, which is, you know, if we accept, as I think Andy does, although, of course, he can and should speak for himself, that Congress's powers don't just extend to regulation, but also to oversight of the executive branch, um, and, you know, that's where I think there actually is a fair amount of Supreme Court case law in point, you know, McGrain versus Daugherty from 1927, which cements, um, that Congress has the power of inquiry, that is to say the power to basically compel testimony from executive branch officers as part of its oversight function. You know, it seems to me not that much of a leap, um, that looking into allegations of misconduct that may not necessarily rise to the level of impeachable offenses, um, by executive branch officers is within the oversight bailiwick.
I mean, let's imagine this weren't the president for a second. Let's imagine that there were serious concerns that a Cabinet secretary had been abusing their office for personal financial gain. Um, I have to think that part of, you know, whichever committee has oversight authority over that Cabinet department would certainly, as part and parcel of that authority, have the ability, indeed the responsibility, um, to investigate that particular Cabinet secretary, which might even include, you know, subpoenaing some of their personal financial records to see if they had in fact been misusing their office for those purposes, notwithstanding that Congress also has the power to impeach said officer.
Um, and so I guess, you know, where I sort of r-, part ways from Andy, at least where I think I part ways from Andy, um, is the idea that you can draw a bright line between Congress's regulatory capacity and Congress's impeachment capacity. It seems to me that oversight really is a bridge between those two different worlds, um, and that, you know, there is more latitude when Congress is acting in an oversight capacity, um, for Congress to pursue these kinds of records. Now, of course, I mean, there still has to be relevance to the subpoena, um, right, and I do think that there are still arguments the president can and should make about individual particular records being protected by various forms of privileges or immunities, but the notion that, you know, it's only once Congress has crossed the impeachment Rubicon that it's allowed to obtain these kinds of records, which is at least Judge Rao's position in her dissent in the D.C. Circuit.
Um, I really think both, um, would cripple Congress's ability to conduct meaningful oversight of the executive branch going forward, but also at a more basic level, um, treats impeachment as a formal distinction from regulation that, frankly, Jeff, the Constitution doesn't recognize. I mean, the Constitution doesn't say that Congress's powers differ when it's wearing its regulatory hat versus its oversight hat versus its impeachment hat and I think that's for a good reason. So, you know, that's why I think the majority in the D.C. Circuit has the better of this argument, um, and why I think, at least in this context, the subpoena was at least facially, to me, appropriate even outside the context of a formal impeachment inquiry.
Jeffrey Rosen: [00:12:24] Andy, uh, what's your response to Steve's suggestion that it's impossible to draw a bright line distinction between oversight and impeachment investigation, and what do you make of Judge Mehta's opinion on the District Court version of Trump versus Committee on Oversight Reform, where he cited, uh, a series of possible investigative goals that, uh, Congress might have putting the president's, uh, disclosures within the legislative sphere, such as whether the president is abiding by the foreign Emoluments Clause, whether he has conflict of interest that lie within Congress's province to legislate, and also that a Congressional investigation into illegal conduct before and during the president's tenure fits comfortably within the broad scope of Congress's investigative and informing powers?
Andy Grewal: [00:13:17] I think, uh, it may help to distinguish between Cabinet departments, or other departments, and the president himself or herself in thinking about this question, that is, uh, the case that Steve mentioned where the Supreme Court said that Congress could issue a subpoena related to the Attorney General. Uh, in doing so, the Supreme Court emphasized that Congress create, Congress created the Department of Justice, it oversees the workings of the Attorney General and his department. In that context, the case for oversight seems quite clear. Uh, the, the DOJ, in a sense, is Congress's baby. It creates a ... Congress does not create the president. We the people created the office of the president, so the, the threshold or the, uh, initial issues as to whether Congress even has oversight authority, general oversight, over the president is different for departments which it establishes.
And so that is where, I think, Judge Rao emphasizes that, if Congress is going to investigate the president himself or herself, uh, it is necessary to rely on the impeachment power as opposed to a general oversight power. By analogy, for example, Congress has not and probably could not pass statutes saying when Supreme Court justices must recuse themselves from particular cases. The Constitution establishes the Supreme Court. Uh, the Constitution establishes the presidency. In that respect, uh, Congress's oversight authority is at its lowest. Uh, it is, of course, true that there are potential oversight responsibilities related to the executive branch and the District Court opinion, uh, identified several potential things. Some of them, in my view, seemed a little bit flimsy.
Uh, the idea that Congress needs the president to disclose his financials to determine whether it should pass a law requiring him to disclose his financials seems a little bit backwards. Uh, we have a bi-, uh, bipartisan statute that ... it's a government act in which Congress and the president reached a compromise on what disclosures must be made and now we have a committee acting on behalf of the House demanding further disclosures. That seems to invert the order of things, so skeptical of that, uh, potential rationale.
Jeffrey Rosen: [00:15:34] Well, let's turn to the second case that the Supreme Court has agreed to hear and that's Trump verus Deutsche Bank. This case involves the question whether the Committee on Financial Services and the Intelligence Committee of the House have the constitutional and statutory authority to issue a support to Deutsche Bank, who are creditors for President Trump, uh, demanding private financial records belonging to the president. As the SCOTUSblog has noted, the court took the somewhat unusual step of granting review in the case without receiving a formal petition for review.
Steve, how does the Deutsche Bank case differ from the Mazars case, um, what's the argument for the legitimate legislative purpose here, and, and do give us a sense of, you know, how clear the Supreme Court precedents governing these cases are so listeners have a sense of, of whether or not they're likely to be close, uh, at the Supreme Court?
Steve Vladeck: [00:16:31] Yeah. So, I mean, the, there are some factual differences in these cases. So the, the Deutsche Bank case, um, once again, is a subpoena from Congress for various financial records, um, both of the president's and of his business entities, um, held by third parties, in this case, Deutsche Bank and Capital One, but from different committees. Um, so one is from the Committee on Financial Services and one is from the House Permanent Select Committee on Intelligence, um, and the, the subpoenas are not limited to the president's records, also, uh, records relating to his family, um, which might go to some degree to mitigate some of the concerns Andy was alluding to about the president, um, and affiliated entities.
Um, the biggest difference, Jeff, I think, between these two cases is that the litigation in this case, which went through the federal District Court in Manhattan and then the Second Circuit as opposed to the D.C. Circuit, um, has really been focused much more on what we might think of as the as applied questions, that is to say less about whether, in general, Congress has the power to issue a subpoena in this context and more about these specific subpoenas. Um, so, you know, the Second Circuit, um, issued this remarkably thorough, you know, 165-page set of rulings, um, on these subpoenas on December 3rd, that, you know, much along of the lines of the D.C. Circuit, first says, "Yes, we agree, Congress, in general, has the power to do this," but then walks pretty carefully through a much more specific analysis, um, of whether the particular subpoenas these committees issued were sufficiently tailored to account for the president's unique concerns on the other side of the equation.
Um, in a couple of contexts, the majority even suggested that there might need to be some remand to the District Court for at least some further development of the subpoena and for some narrowing, and, you know, Judge Livingston, who dissented from the majority decision in the Second Circuit, her dissent is very different from Judge Rao's, right? She is not, um, attacking Congress's power in general to issue these subpoenas. She's much more focused on the argument that where the president, or at least his records are at stake, um, there ought to be a much higher burden on the subpoena requester, that the courts must sort of, um, scrutinize the subpoenas with much greater care, and basically that, you know, if the subpoenas are going to issue, they should be as narrow as possible under the circumstances, and then she tries to suggest ways in which she thinks that these subpoenas don't meet that standard.
So I think part of why, Jeff, the Supreme Court probably jumped the gun a little bit to take this case along with the Mazars case is because I think it might, at least superficially, appear to the justices that this case provides something of an off-ramp, um, that if the Court isn't inclined to decide the huge mega question about Congress's power in the abstract, um, that there might be a possibility along the lines laid out in Judge Livingston's dissent to sort of sidestep that question by saying, "Even assuming for the sake of argument, Congress has the power in the abstract, you know, we find these particular subpoenas to be too broad."
Um, you know, I'm not sure that's going to work for some reasons that we can get into, I mean, just, you know, to, to sort of start the ball rolling on that. I mean, I think these subpoenas, first, are fairly specific, at least in light of the purposes that the Financial Services and House Intelligence Committees identified. Um, second, and I think most importantly, you know, I think, um, I, I think that it's going to be hard to convince the Court to not at least decide the first question about whether Congress has the power to issue subpoenas like this in the abstract. Um, but, you know, my sense, Jeff, of why the Court hustled to add this case to this, you know, March blockbuster day we're now heading for is because this, you know, presents the issue on a more, um, microscopic and case-specific level that, you know, for justices who are hoping there might be a compromise available might be attractive.
Jeffrey Rosen: [00:20:24] Andy, what do you make of the differences between the Deutsche Bank case and the Mazars case and do you agree or not that it provides an off-ramp and, if the Court were to take a more granular approach in this case, what would it look like and what approach do you think it should take?
Andy Grewal: [00:20:41] Yeah, I think there is a major difference and I think, uh, especially in terms of how the House framed the subpoenas and the investigations, that is, at least based on the opinion, it sounds like the committees were investigating generally, uh, wrongdoing in the financial sector. Deutsche Bank had been fined heavily, as had Capital One, and these seems to b-, these seem to be investigations about the financial system in which, uh, the president is a indirect, um, player, that is they're interested in using the president's financial information to investigate more broadly wrongdoing or opportunities for improvement in the banking sector. That's different from at least the Rao dissent in the D.C. Circuit case where there were various indications that Congress set out looking to investigate the president, that is, here, at least on paper, there seems to be a strong record that Congress has a longstanding interest and has taken actions with respect to the financial sector and wrongdoing.
So the question here isn't impeachment versus oversight, but rather, rather to what extent, to use the majority's phrase, uh, Congress can use the president as a case study to examine the system. In that respect, this, that may be the soft spot for Congress here, that is, even though I think they clearly have an interest ensuring the integrity of the financial sector, it seems a little bit strange, or at least highly coincidental, that the one family they want to examine to determine whether the banking system works is their most significant political rival. It seems a little bit odd that way.
Uh, in that respect, the question would be more general, can Congress, even putting aside the president, if, if Congress wants to investigate Deutsche Bank, Goldman Sachs or Bank of America, could Congress choose any one family out there and say, "We want to know everything about you," they ask for all information on checks written, for example, and use one person as a case study to examine the whole system? That raises broad questions about Congress's authority to subpoena information in, to fulfill its legislative purpose while, uh, respecting the private rights of individuals. And I, I could see how the Supreme Court may answer this case differently from the Mazars case, and it also makes me wonder why the two cases were, I, I believe, consolidated for or-, for oral argument?
Jeffrey Rosen: [00:23:08] Steve, An- Andy does suggest that some judges might be skeptical of using the president's family as a random test case of the financial laws, and that leads me to ask, again, what are the relevant precedents? Uh, Judge Mehta in the Mazars case in the District Court began his opinion by noting an objection by President James Buchanan to an investigation by a congressional committee in the 1860s. Like Trump, Buchanan complained that Congress's real aim was harassment. And what would the Court's response to a similar claim be here and does that complicate the line between ge- general investigation of the, of efficacy of the financial laws and, uh, harassment of the president himself?
Steve Vladeck: [00:23:55] You know, I thi-, it, it's the right question, Jeff, and I don't really know how to answer it 'cause we don't have a case squarely on point. I mean, the, shockingly, the, the James Buchanan affair did not produce a rash of, of high level Supreme Court litigation. Um, you know, as, as I think most everyone agrees, we only really have one example historically of a appellate decision involving a congressional subpoena for the president's own personal records and that was the Senate Select Committee decision in the Watergate case.
I, I think though, if we, if we step back for a second, you know, it's worth asking a question about pretext, um, and about the extent to which we do or do not care about whether the government is acting for the reasons it says it's acting or whether we suspect, as Andy, I think, to some degree, rightly does, that some of the proffered justifications might in fact be pretextual. Um, and in this regard, I'm struck by the, the comparison, or the contrast, um, between, for example, um, the subpoena cases, where, you know, I think it's an article of faith to the president and his supporters that Congress's actual motive should be centrally relevant to how the courts approach this issue with, for example, the travel ban case the Supreme Court decided last term of any number of other challenges to executive actions during the Trump administration where the government has been pretty successful in arguing that motive and pretext actually shouldn't, um, be relevant to deciding whether the government's proffered, um, neutral justifications are the actual ones and whether that's a basis for upholding the, the challenge to action.
And I guess my reaction is, you know, it seems to me we, at the very least, ought to be consistent about pretext and, if anything, there might even be an argument for being even more, um, skeptical of looking to pretext when we're talking about legislative action, so the action of a multi-body entity, um, compared to executive action where you have a unitary head. But, you know, I do think that lingering behind all of these cases, um, is this question of just, you know, how much should courts take these subpoenas at face value, um, and how much should courts sort of look at them as, you know, Congress using powers that may in fact be available to it for ends that the Court finds distasteful. And I just, you know, I don't know what the doctrine looks like where we hold Congress to a higher standard when it comes to pretext than we hold the president of the United States. It would, to me, a little bit ironic if we actually ended up there in these cases specifically.
Jeffrey Rosen: [00:26:23] Andy, what's your response to the concerns about inconsistent approach to pretext and, more broadly, h- how can you imagine the liberal and conservative justices analyzing the Deutsche Bank case? Will they analyze it, uh, in similar terms or differently?
Andy Grewal: [00:26:41] Yeah. It is difficult because, to allude to your prior point, uh, regarding doctrine, it is a, a bit unclear. The cases are filled with statements that, "We won't look at motives if a legitimate legislative purpose is present," for example, uh, "We won't, um, restrict the rights to examine private affairs if a legitimate legislative purposes is satisfied." All those exhortations from the Supreme Court tend to be a little bit question-begging because they don't actually draw a line for us, uh, between, uh, improper personal investigations and oversight. So the state of the law, I think, a reasonable person could decide either of these cases either way, uh, which means, unfortunately or fortunately, we will have to rely on the judgment of the Supreme Court.
Now the Deutsche Bank opinion drew an interesting distinction. I think, thus far, uh, there's been a push to ignore all statements and motives and just focus on the language of the peona-, uh, of the subpoena, much as in the same way that, uh, there was a push to look at the four corners of the executive order. However, the majority in Deutsche Bank drew a distinction between hidden motives and statements made by legislators. They actually said, "In determining the purpose of this, we will look at written statements in the congressional record, but we won't, what we, what we won't do is try to determine the thoughts floating in a congressman or congresswoman's head." And so that might be a potential dividing line accepted by the Supreme Court. They might say, "Well, we will look at issues in the congressional record and, to make sure things don't go too far, we're not going to psychoanalyze anyone. We're not going to assume motives that aren't on the record."
Now whether the Supreme Court's majority, minority, conservative, liberal will accept that approach, I'm not sure because I think, as Steve pointed out, uh, any time we open the doors to this sort of inquiry, uh, strange results might happen and I'm not sure we can fashion a coherent doctrine, uh, around it.
Jeffrey Rosen: [00:28:34] Well, that brings us to the third case that the Supreme Court has accepted for review and that's Trump versus Vance, and that's a case involving a subpoena issued by Cyrus Vance, the District Attorney of New York, which subpoenas the president's personal records, about 10 years worth of his financial papers and tax returns. Chief Judge Robert Katzmann, uh, for, uh, the Second Circuit, in a unanimous opinion, said that the president's sweeping claim about pre-indictment immunity, immunity about any of his conduct before indictment, is squarely contrary to history in Supreme Court precedents. He cited, uh, the subpoena to President Jefferson in the Burr case. He cited the Nixon subpoena and he cited the Clinton subpoena and he said that the last six presidents, dating back to Jimmy Carter, all disclosed to the public their information voluntarily.
Now he did note one distinction, which is that previous cases had dealt with subpoenas from federal courts and this was a state court, but he said that that was not dispositive. So, Steve, please tell us more about the significance [laughs] of the Vance case and what Chief Judge Katzmann's constitutional ruling was and whether or not you think the Supreme Court'll buy it?
Steve Vladeck: [00:29:51] Yeah, and I think one way of thinking about this case, um, is as if the, the Supreme Court's two big decisions against sitting presidents, U.S. versus Nixon and Clinton versus Jones, had a baby, um, 'cause that's kind of the ... you know, this case arises at the confluence of those two. Um, so on one hand, I mean, Jeff, as you say, um, unlike the congressional subpoena cases, with regard to a grand jury subpoena like the one that, you know, Manhattan DA Cyrus Vance has issued for President Trump's records here, there's squarely on-point precedent that the president can, in at least some circumstances, be properly subject to a grand jury subpoena. That is the Supreme Court's unanimous decision in the Nixon Watergate tapes case in 1964.
Um, the tricky part is that this isn't a federal court, this is a state court, and in Clinton versus Jones in 1997, even in the process of holding that a sitting president could be sued civilly for conduct undertaken before he was in office, um, the Supreme Court went out of its way to expressly reserve whether the same thing would be true if the president were sued in state court rather than federal court, um, and Justice Stevens's opinion for the Court alluded to, but didn't really unpack, um, concerns that might arise under the Supremacy Clause, if a sitting president could be subjected to, um, you know, coercive litigation in a criminal context in state court, indeed, perhaps even in 50 different state courts.
Um, Jeff, before the Vance subpoena even issued, we've actually already had some interesting litigation on whether Clinton versus Jones applies in state court in the Trump context. I mean, so Summer Zervos, um, the former Apprentice contestant, has been litigating a defamation claim against Trump in the New York State courts that has already produced, uh, a decision from the trial level court and from the intermediate appeals court that, um, just as a president can be sued civilly in federal court for conduct he, he undertakes before he's president, um, so too in state court.
The question here is what about a subpoena? Is a subpoena different in that regard? Um, and the president's lawyers have really gone, frankly, all in in this case and have argued quite aggressively that both the Supremacy Clause and Article Two categorically preclude a state court from issuing any coercive process to any entity because, here, the subpoena wasn't to Trump, it was, again, to Mazars, um, for records related to the sitting president.
Um, what I think is really remarkable about this case, Jeff, is, I think, a point that hasn't gotten a lot of attention, which is, you know, the federal government, um, which is not a party to these cases, filed an amicus brief in support of the president's petition, but on very different grounds. So the, the SG's amicus brief, um, does not come anywhere close to endorsing the broad theories of categorical immunity that the president's personal lawyers are advancing. The SG's brief is much more about the sort of whether a subpoena to a sitting president in this context ought to be held to a higher standard of relevance, um, again, sort of a narrow, tailoring type of argument and whether in fact the subpoena in this case was and would meet that standard.
Um, I think it's telling to me, Jeff, that that's the ground on which the SG is choosing this pitch this case, that it's not really about the categorical immunity the president is claiming from any state court litigation, rather it's about whether, uh, you know, the sort of, the specific subpoena at issue here is overbroad. That's a very different question and I think would have very different ramifications if that's the question the Supreme Court answers than the question actually presented in the cert petition.
Jeffrey Rosen: [00:33:31] So, Andy, helps us understand, uh, how significant the fact that this is a state court as opposed to a federal court is in light of the Supreme Court precedents for grand jury subpoenas that, as Steve said, do deal with federal courts and whether you agree with him or not that the president's broad claims of complete immunity are maybe less successful than the SG's, uh, claim that the subpoenas have to be narrowly tailored and not overbroad, and then tell us what precedent, uh, there is, what support in the case law there is for the idea that subpoenas can't be overbroad when they go to the president given the fact that overbreadth was not a concern that the courts were willing to buy the Clinton impeachment?
Andy Grewal: [00:34:16] Yeah, the role of the state versus the federal is, I think, easier to understand if we had easier facts. If one state decided to arrest and imprison the president of the United States, I think that would be absurd. Why does, why could one state seize the president of all United States? On the other hand, uh, to, another easy case, if the New York Department of Revenue, their IRS, wants to look at Trump's tax returns on file, I think it would be absurd to say that they couldn't. There's no burden on the president and, surely, they can audit returns filed with them. This is somewhere in between those two ends, uh. I, I think, as Steve pointed out, they are describing this subpoena perhaps, Trump's lawyers, as closer to actually arresting the president and throwing him in jail, in which case, if we view it that way, then it seems like this should be set aside under the federal supremacy grounds.
On the other hand, if this is more like just the state reviewing its own filings with respect to Trump, which I, again, I think is clearly permissible, then it's much easier to understand why the subpoena should be upheld. I do think, though, my concerns with the subpoena, I'm not sure are suitable for federal resolution. The subpoena itself, the local prosecutor essentially copied and pasted two subpoenas from the House Oversight Committee and the Ways and Means Committee, and remember, those two committees had broad purposes related to federal oversight of the tax system and ethics legislation, and Mr. Vance copied and pasted those subpoenas and said he needed those same documents, the same requested documents, for his investigation.
My understanding, as far as it's known, is that his investigation is, relates to whether the Trump organization properly reported a payment to Michael Cohen on its internal business records. Apparently, there's a city, county, or state business records law that may have been violated. It seems very strange that, for this purpose, Mr. Vance would need the exact same materials requested by the federal legislature. However, I'm not ... it's unclear to me that that is a question for a federal court to resolve. Maybe this has to be battled out in state court. Maybe, uh, Trump has to present a, a case that that subpoena is invalid according to the New York constitution. I'm just not sure. But there is this odd fit, uh, it's a kind of ... between the claim documents and the, uh, asserted nature of the investigation.
Jeffrey Rosen: [00:36:50] We'll turn to the Don McGahn case, our last case, in a moment, but I want to ask you, Steve, how, how is the court likely to resolve these three cases? As you both discussed them, they seemed to me as, uh, and, and to our listeners, I'm sure, to be complicated cases with important factual and legal differences. Will the justices re- resolve them in a single opinion or separately or give us some sense of, of what you expect to see the court do?
Steve Vladeck: [00:37:16] Well, I mean, I think, if I, if I knew for sure, Jeff, it would be, you know, I'd, I'd be in the wrong line of business.
Jeffrey Rosen: [00:37:20] [laughs].
Steve Vladeck: [00:37:21] I, I do think, um, that we're looking at at least two opinions and maybe even three by the time we're done. I mean, I, I just think the questions presented in the Vance case are so meaningfully distinct from the questions presented in both of the congressional cases, um, whether we end up with separate opinions in the congressional cases or a combined opinion may depend to some degree on what the court does. Um, you know, uh, the only thing I feel relatively confident about, Jeff, is that, you know, this is not going to be another Nixon, U.S versus Nixon or Clinton versus Jones. I mean, one of the things that's remarkable about those two landmark precedents is that they were both unanimous, um, and, you know, they were unanimous, at least to some degree, because they reflected compromises between the more progressive and the more conservative justices, and I just don't see much room for compromise either on the current court or in the current atmosphere.
I mean, it's possible that the Chief Justice, who I think is going to be the median vote in at least one if not all of these cases, um, it's possible that he tries to forge some kind of compromise where, you know, he generally sides with Congress, but finds case-specific reasons why the particular subpoenas at issue weren't, um, satisfactory, um, and hopes that that kind of sort of split the difference approach attracts at least a couple of colleagues to both sides.
But, you know, I think for the progressives, you know, they're going to see, at least the, the, the big questions about whether Congress in general has this kind of subpoena power and about whether state prosecutors have the same subpoena power that federal prosecutors have vis-à-vis the president, you know, I think the progressives are going to see that as sort of a binary, um, and I'm not sure, unless they really think that they need some kind of compromise to attract the Chief, I don't know how far they're going to give in. On the flip side, I think, you know, opinion like Judge Rao's dissent really do create an opportunity for some of the more conservative justices to dig in pretty aggressively on broad theories of executive power and immunity, um, at the expense of either coordinate branches in the congressional cases or the states in the Vance case.
And so, you know, Jeff, I, I have no idea this is going to end. The only thing I feel relatively confident about is it's not going to end the way Nixon and Clinton did with unanimous decisions from a, you know, I think, very institutionally, um, self-aware court. I think this is going to be much messier, you know, and it's going to come down in the middle of the 2020 elections and so I think, befitting the times in which these cases are arriving, um, and arising, you know, this is going to put the court in a really messy, sticky position and I think the Chief is going to try to forge a way out. I just have not that much faith that he's going to find one that attracts five votes.
Jeffrey Rosen: [00:40:01] Andy, how do you think the subpoena cases are going to turn out before the Court? Do you agree with Steve or not that they're not likely to be unanimous like Nixon and Clinton and, if not, why not? Why have these subpoena cases become polarized? Uh, Nixon and Clinton found nine justices who were eager to stand up for the prerogatives of subpoenas and the amenability of the executive to investigation. What has changed to make that different if, if these cases do indeed splint along ideological lines?
Andy Grewal: [00:40:33] Yeah, I'll keep it short because I largely agree with Steve. Uh, definitely Vance is in its own bucket and I also don't have a crystal ball, otherwise, I'd be in Vegas right now [laughing]. Uh, with respect to these cases, it, it certainly is a case that we saw nine-zero previously. We may have five-four, six-three, or something like that with respect to these cases. Uh, that could mean that these issues are harder or it could mean that there's a stronger ideological divide, uh, people have to make up their minds, uh, on their own.
With respect to how to handle these subpoena cases, I, I am, I am concerned with what the Supreme Court is going to do here. Uh, before they took these cases, I was hoping that they would take one subpoena case, a, a congressional subpoena case, decide it, and then return the other cases to the lower courts to, uh, examine in light of the principles established. They've taken both of these cases, but this won't be the end of the matter. Currently, in the D.C. District Court, there is subpoena litigation with respect to the ways and means subpoena to the IRS for Trump's tax returns. That raises issues very similar to the Deutsche Bank and the Mazars case, so I'm not sure. Is the Supreme Court just going to take every single subpoena case for the next one or five years that relates to Trump? I, I would have preferred a more cautious approach of taking one and then enunciating principles and letting the lower courts, uh, sort it out from there.
Jeffrey Rosen: [00:42:01] All right. We have one final case to discuss the Supreme Court has not taken up, at least not yet, but it is important in its own right and that is Committee on the Judiciary, uh, versus Donald F. McGahn, and the question involves the subpoena issued by the House Judiciary Committee calling on Don McGahn to testify before the committee about whether President Trump obstructed justice in the Mueller investigation. On the D.C. Circuit, Judge Ketanji Jackson ruled that Don McGahn did have to testify, rejecting the Trump's administration claim that the lawyer was covered by broad presidential immunity. "Presidents are not kings," she held. Steve, tell us about Judge Jackson's opinion and what the constitutional analysis was and whether or not you agree with it?
Steve Vladeck: [00:42:49] Yeah. I mean, the, the, this is sort of the next generation, or at least like maybe what I think of as like the second generation, um, set of questions in these subpoena cases where, you know, assuming that the Supreme Court doesn't just categorically foreclose Congress's power to issue subpoenas in this context, what about testifo-, what about testimonial subpoenas to White House advisors? Um, and Don McGahn claimed something that the Office of Legal Counsel has called absolute testimonial immunity, um, basically the idea that senior, uh, current and former senior presidential advisors, um, owing to their sort of proximity to the president, their responsibilities, the, you know, the sort of the Article Two, um, authority for their office, um, are immune from compelled testimony before a Congress.
Um, Jeff, this is not the first time we've heard this argument. This is the argument that the George W. Bush administration had made before Judge John Bates in 2007, um, in litigation over House Judiciary subpoenas to former White House Counsel Harriet Miers and former White House Chief of Staff, um, Andy Bolton, um, and the sort of, you know, Judge Bates, in that decision, had written, I think, a very thorough, careful, and to my mind, you know, unanswerable explanation for why there certainly could be, uh, sorry, Josh Bolton, not Andy Bolton, um, there could be, um, individual sort of privilege assertions that these advisors were allowed to make when they appeared for testimony, but basically putting to bed the idea that there was such a thing as a categorical absolute testimonial immunity that prevented these advisors from being called to the, you know, congressional witness stand for any purpose.
Um, now that was only a district court decision. You, the appeal of that decision was basically settled, um, after the sort of intervening election got in the way, but, you know, Judge Jackson basically just dusted off Judge Bates' analysis and said, "Yeah, I mean, this is, this is right, that, you know, without prejudging particular assertions of privileges or immunities that the witnesses might have in response to specific questions, they can't just categorically refuse to appear solely by dint of the fact that they used to work in the White House."
Um, you know, I think that that's the correct answer. It obviously doesn't resolve the third generation questions about individual privilege claims in response to particular questions, um, but, you know, if and when the Supreme Court decides this first round of cases, assuming it leaves at least some congressional subpoena power intact, you know, I think it's a matter of time before, at the very least, the D.C. Circuit is going to have to settle the, you know, testimonial immunity question as well and we'll see, at that point, if there's any appetite on the Supreme Court's part to weigh back in.
Jeffrey Rosen: [00:45:33] Uh, Andy, what do you make of Judge Jackson's opinion and its discussion of the Harriet Miers precedent? As Steve said, Judge Jackson quotes Judge Bates. She says, "Judge Bates rejected the executive claim of absolute immunity for senior presidential aides by noting the executive cannot identify a single judicial opinion that recognizes absolute immunity for single presidential advisors in this or any other context. Judge Bates quoted the Court's decision, the Supreme Court's decision, on Harlow and Fitzgerald, the 1982 case, where the Court rejected absolute immunity for executive aides in the context of civil lawsuits seeking monetary damages and Judge Bates found it telling," I'm still quoting from Judge Jackson, "that the only authority that the executive can muster in support of its absolute immunity assertion are two Office of Legal Counsel opinions, which he found, for the most part, conclusory and recursive."
So, Andy, are, are you persuaded by Judge Jackson's treatment of the Meirs precedent or not and what do you think the right answer is in the McGahn case?
Andy Grewal: [00:46:35] Yeah. I, I think I found the privilege analysis largely compelling, or at least in the, in the, in the Bates opinion, so I, I share Steve's summary. I think, uh, where the court erred here is even asserting the power to decide the case, that is like the administration's before it, the Obama administration and the Bush administration, the Trump administration said this is not the sort of claim that courts have the business of resolving. In other words, a congressional committee doesn't have standing to sue the executive branch, as here, Don McGahn, or an agency.
So I ... that is the issue I think the Supreme Court is eventually is going to have to resolve. Three times in the last 20-some, some odd years the Supreme Court has said, "There are separation of powers issues that arise when a Congress sues the president. We are not deciding the question. We are just issuing warnings." And I believe that this case or the border wall case or the tax returns case will lead the Supreme Court to finally tell us whether Congress can sue the president over White House, uh, testimony, over tax returns, over appropriations powers claims, and so on. Uh, and I think that's, this will not be the final word on, on that particular issue.
Jeffrey Rosen: [00:47:50] Well, it's time for closing arguments in this extremely, uh, substantive and very illuminating discussion of the subpoena cases, and the first one is to you, Steve. How do you believe the Supreme Court should resolve the three cases it's agreed to hear involving the president and the subpoena power?
Steve Vladeck: [00:48:11] Um, I think it should affirm the Mazars case, I think it should affirm the Vance case, and I think it should dismiss the Deutsche Bank case as improvidently granted and allow the remand that the majority in the Second Circuit already ordered for further evaluation of the subpoenas in those cases to proceed in the district court. Um, and just to flesh that out a bit, I mean, I think, you know, we ought to sort of step back and think about a world in which Congress did not have the power to issue these kinds of subpoenas, um, a world in which Congress could only investigate the president and other federal officers in this matter by launching a formal impeachment inquiry, by taking some kind of formal vote that neither the Constitution nor the House's own rules require.
Um, you know, and I think a world where Congress can't exercise that kind of oversight is a pretty alarming one, especially against the backdrop that, you know, we're all so familiar with of DOJ's own position that a sitting president can't be criminally indicted. If a sitting president can't be criminally indicted and if he can't be investigated except through the initiation of a formal impeachment proceeding, it seems like we're ratcheting up our politics and encouraging not necessarily lawlessness on the part of current and future presidents, but at least, you know, less of a concern that the other branches are going to be playing a central role in ensuring that president acts consistently with the law.
Um, I don't think the Vance case is nearly as important in those terms. I think, you know, a world without the ability of local prosecutors to subpoena a sitting president's financial records is not nearly as disturbing a world to me, but, you know, I think the, if these principles mean anything, it ought to mean that, you know, Congress is allowed to investigate, um, and the political checks that we have relied on for so much of our history to ensure that Congress doesn't get carried away, you know, can do the work that I hope it would do in ensuring that this doesn't become a weapon to be used against every president at any moment in history, but rather a, you know, sort of necessary accommodations for the times we live in.
Jeffrey Rosen: [00:50:08] And, Andy, last word is to you. How do you think the Supreme Court should resolve the three cases that it's agreed to hear involving the president and subpoenas?
Andy Grewal: [00:50:17] You know, with regards to the Vance case, whatever the Court does, I hope that it acts very carefully and recognizes the potential for danger here, that we will one day have a Democratic president and you will have a red state or red, red prosecutor who may subpoena school records, medical records, birth certificates, and so on. And I'm very concerned about this potential opening the door for local prosecutors to harass a sitting president simply for political reasons, especially because, because, again, in the Vance case, the prosecutor simply copied and pasted, uh, federal subpoenas and issued them for personal information, which, to me, it, uh, does not bear any relation to a business records violation.
With respect to the subpoena cases, uh, I believe that the law is uncertain. I think a reasonable person could decide either of them either way. My preference though would be that the court recognizes the more limited oversight role over the president and hold Congress to account if it plans to investigate him, that it is not a strong burden to ask a House committee to receive authorization from the entire House to issue a subpoena for the president's financial records and to state the purpose of the investigation. Historically, committees themselves did not have subpoena power. The subpoenas had to come from the entire House. Now we do it a little bit differently, that is they receive their authorization first and then can issue subpoenas as they, as they please, but I don't see that as necessary to preserving the rule of law. Uh, we can ask Congress to pass resolutions and make their interests clear before acting. When they haven't, I believe the, the Court should be skeptical of the resulting subpoenas when they dig into a political rival's, uh, finances.
Jeffrey Rosen: [00:52:01] Thank you so much, Steve Vladeck and Andy Grewal for an illuminating, a, a substantive, and a, and a deeply civil discussion of these complicated and crucially important subpoena cases. You have vindicated the hope of Isaiah, "Come, let us reason together," and that's exactly what we've done. Andy, Steve, thank you so much for joining and happy holidays.
Steve Vladeck: [00:52:27] Thank you, Jeff. Happy holidays.
Andy Grewal: [00:52:29] Thanks, Jeff. Thanks, Steve.
