High Court Roils White House With Punt on House Subpoenas

President Donald Trump arrives at the White House on Sunday after visiting Trump National Golf Club in Sterling, Va. (AP Photo/Patrick Semansky)

WASHINGTON (CN) — Finding that major separation-of-powers concerns raised by the cases warrant further review, the Supreme Court punted Thursday on whether House Democrats can subpoena President Donald Trump’s financial records. 

The 7-2 decision sends the dispute back to the lower courts for what Chief Justice John Roberts called a more adequate consideration of “special concerns regarding the separation of powers” implicated by the subpoenas. 

This makes it unlikely that there will be a final decision on whether Congress can access Trump’s financial records before the November election.

“Congressional subpoenas for the president’s personal information implicate weighty concerns regarding the separation of powers,” Roberts wrote. “Neither side, however, identifies an approach that accounts for these concerns.” 

The decision was one of two the justices handed down on subpoenas seeking Trump’s financial records, as the court separately upheld a New York City prosecutor’s subpoena seeking Trump’s tax returns. Both cases had Roberts joined by the court’s liberal justices, as well as Justices Brett Kavanaugh and Neil Gorsuch. In both cases as well, Justices Samuel Alito and Clarence Thomas each penned separate dissents.

Trump filed suit to block subpoenas from three House committees — Oversight, Financial Services and Intelligence — which sought broad categories of his financial records.

The House Oversight subpoena went to Mazars and is virtually identical to one Manhattan District Attorney Cyrus Vance issued, except Vance tacked on the request for tax returns. The committee justified the request for years of Trump’s financial records as part of its review of whether Congress should update government ethics and conflict-of-interest laws.

As justification for the subpoenas of Deutsche Bank and Capital One, meanwhile, the House Financial Services and Intelligence Committees pointed to their broad probes into money-laundering and unsafe-lending laws, as well as foreign interference in the 2016 presidential election.

The D.C. Circuit and Second Circuit each upheld the subpoenas, finding the committees had supported them with a valid legislative purpose. 

Vacating those rulings in the second opinion, Roberts emphasized the careful scrutiny that congressional subpoenas demand, “for they stem from a rival political branch that has an ongoing relationship with the president and incentives to use subpoenas for institutional advantage.”

To Thomas, the only time Congress can get access to personal documents is as part of an impeachment proceeding. The implied power of a legislative subpoena is limited and does not extend to private documents, Thomas wrote.

“Congress’ legislative powers do not authorize it to engage in a nationwide inquisition with whatever resources it chooses to appropriate for itself,” the Thomas dissent states. “The majority’s solution — a nonexhaustive four-factor test of uncertain origin — is better than nothing. But the power that Congress seeks to exercise here has even less basis in the Constitution than the majority supposes.”

In a separate dissent, Alito called congressional subpoenas for a president’s personal documents “inherently suspicious” though not necessarily invalid.

Alito slammed the majority’s remand instructions as inadequate, saying the committees should need to specifically detail what the legislation the financial records are meant to inform so a court can evaluate whether the records “are of any special importance.”

Trump-appointed Justices Kavanaugh and Gorsuch joined the Roberts opinion in full, as did Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Roberts noted the litigation over the House subpoenas is unprecedented, with other cases over access to presidential records stemming from criminal investigations or civil litigation involving private parties.  

At oral arguments in May, the House, Trump and the Justice Department each presented the court with their preferred way to navigate the uncharted territory. None proved satisfactory, however, for Roberts, a President George W. Bush appointee.

For their part, Trump and the Justice Department said the House subpoenas should be held to a higher standard, giving protections meant for privileged documents to the president’s personal records.

But Roberts said this “would risk seriously impeding Congress in carrying out its responsibilities,” if such standards were applied outside the context of privileged information.

Roberts echoed a comment he made at oral arguments, meanwhile, in discarding the House’s proposed standard.

“Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the president’s personal records,” Roberts wrote. “Any personal paper possessed by the president could potentially ‘relate to’ a conceivable subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects.”

Offering a guide to the lower courts on remand, Roberts laid out a series of considerations for judges to apply when evaluating congressional subpoenas for a president’s personal records.

The courts should evaluate whether Congress’ claimed legislative purpose justifies the “significant step” of seeking a president’s personal documents and ensure the subpoena is as narrow as possible. Roberts also instructed judges to probe in detail Congress’ offered legislative purpose and carefully consider the burdens the subpoena would place on the president.

Speaker of the House Nancy Pelosi cast the decision on the congressional subpoenas as a win for congressional oversight and said House Democrats will continue to press their claims in the lower courts.

“The court has reaffirmed the Congress’ authority to conduct oversight on behalf of the American people, as it asks for further information from the Congress,” Pelosi said in a statement. Congress’ constitutional responsibility to uncover the truth continues, specifically related to the president’s Russia connection that he is hiding.”

Trump meanwhile attacked Thursday’s decisions as unfair.

“Court in the past have given ‘broad deference,” Trump tweeted. “BUT NOT ME!”

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