Two weeks ago Donald Trump’s private attorneys asked the U.S. Supreme Court to quash two subpoenas, one from the New York District Attorney, on behalf of a grand jury, and the other on behalf of the Oversight Committee of the House of Representatives. Both requests rely on Mr. Trump’s status as President, although both subpoenas ask only for Mr. Trump’s tax returns filed as a private citizen. Both requests should be denied for somewhat similar and somewhat different reasons.
The grand jury subpoena demands that Mr. Trump’s tax preparers turn over his tax returns, as well as supporting papers, because candidate Trump made very substantial payments in the final days of the 2016 Presidential election to two women with whom he is alleged to have extra-marital affairs. If those payments were taken as deductions on his personal tax returns, or those of the Trump Organization, that would be a criminal violation by Mr. Trump and possibly others of the New York tax code. The subpoena is being resisted based on an immunity claim that is unprecedented and would, if accepted, seriously set back all efforts to enforce the law against a sitting President and others who may have participated in any unlawful activity with him. In rejecting this claim, the Second Circuit accepted the argument that a sitting President cannot be indicted, but ruled that nothing prevented law enforcement agencies from investigating whether a person who is the President may have committed a crime, even if he cannot be indicted at this time. And it noted that responding to the subpoena would involve only his accountants producing existing records, but no action on Mr. Trump’s part.
No court has ever accepted this exemption from investigation claim, and none should. First, if the claim were correct, it would have precluded the special prosecutor from investigating President Nixon’s role in the Watergate break-in and cover-up, which would, as a practical matter, have meant that the evidence, which was gathered by the grand jury and the prosecutor, and which led to his resignation in lieu of impeachment, would never have surfaced. Moreover, because President Nixon did not act alone, but was part of a broader conspiracy, any part of the investigation that touched on his role, would be precluded as well. Furthermore, while this case involves a grand jury subpoena, the principle espoused would seem to preclude sending an investigator talk to witnesses, such as Trump lawyer Michael Cohen or the women who were paid not to talk about their relation with candidate Trump. Indeed, the entire investigation by Robert Mueller would have had to be stopped if any part of it touched on the actions of Mr. Trump as candidate or President.
The President does have two reasonable good points: if the focus of the DA’s concern relates to payments made in 2016, why does he need, at least initially, all the returns going back to 2011? Nothing in a denial of Supreme Court review would preclude a court from insisting that the subpoena be narrowed, while still allowing the 2016 investigation to go forward. And if Mr. Trump’s real concern is to assure that he can seek a court ruling before an indictment is issued, a court can and should impose a prior notice provision on the DA as a condition of enforcing the subpoena.
The objection in the House subpoena case is based on the assertion that the subpoena was improper because it is designed to ferret out criminal violations by Donald Trump, rather than for a legitimate legislative investigation, which is what Congress may do. To support that conclusion, Mr. Trump and the dissent in the D.C. Circuit noted that the letter from the Committee Chair explaining the basis for the subpoena and testimony by Michael Cohen at a prior hearing pointed to a number of possibly unlawful acts alleged to have been committed by Mr. Trump and did not cite particular ideas for legislation that the Committee might be considering. While not entirely clear, the dissent seemed to suggest that the Committee’s subpoena would be enforceable if only it had been properly worded and not included law enforcement matters, which are not the business of Congress, except in the context of impeachment.
There are at least three reasons why this claim is not worthy of Supreme Court review. First, now that the House has voted to conduct an impeachment inquiry, with the Oversight Committee as one of three committees undertaking the investigation, it would be senseless to require it to issue a new subpoena, citing impeachment specifically, because even the dissent agrees that would be a proper use of a congressional subpoena. Second, although courts have sometimes limited congressional subpoenas that lacked any proper legislative purpose, they have never insisted on a particular manner for Congress to explain what that purpose may be, which is what Mr. Trump apparently demands. And surely, the inclusion of specific examples of dubious activities by the recipient of the subpoena should be a reason for enforcing, not rejecting the subpoena, since those facts would suggest a greater rather than lesser need for legislative action.
Finally, now that the House is doing an impeachment investigation, the Supreme Court’s decision in Nixon v. United States tells the courts to stay away from imposing their will on the process. In that case, the impeached official objected to his conviction by the Senate on the ground that “trial” in the impeachment clause of the Constitution required jury-like procedures in which each Senator must hear all the evidence, which did not occur. The Court rejected that argument on the ground that even the meaning of trial was a matter reserved to Congress, and hence the courts were precluded under the political question doctrine from deciding what it mandated. Because the House subpoena here involves the preliminary investigatory phase and not what happens at trial, there is even more reason for courts to stay out of a dispute which amounts to an effort to edit a subpoena whose legitimate rationale is unquestionable.
Finally, there is considerable tension among the positions Mr. Trump’s lawyers are taking in these cases and elsewhere. His answer to his plea to avoid criminal investigation is that impeachment is the only proper means to investigate the President. But at the same time, President Trump has attempted to preclude those with knowledge of the facts that the House is investigating from learning what he did that might constitute an impeachable offense. The law seems quite clear that both positions are in error, but even his supporters should recognize the significant irony in marinating them both.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School where he teaches civil procedure and constitutional law.