Two weeks ago, the justices signaled that they may be looking for a way out — asking the parties to file new briefs addressing whether federal courts can resolve such interbranch disputes in the first place or whether they present a “political question” courts must abstain from deciding. A ruling that these disputes can be resolved only politically may be an attractive compromise to some of the justices, especially Chief Justice John G. Roberts Jr. But it would be a terrible result for the separation of powers. Much like the Supreme Court’s 1974 ruling requiring President Richard Nixon to comply with a subpoena for the Watergate tapes, such a ruling could well mean that the current president loses this particular battle — but that the presidency wins the war.
At issue in the two cases — Trump v. Mazars and Trump v. Deutsche Bank — is whether Congress, as part of its regulatory and oversight powers, has the constitutional authority to issue subpoenas for the president’s personal financial records. Although the recipients of these subpoenas have suggested that they were willing to comply voluntarily, Trump sued to try to prevent them from doing so. Congress’s power to issue subpoenas to private parties is well established and has been repeatedly sustained by the Supreme Court in cases dating back almost a century. But the justices have never squarely decided whether that power extends to subpoenas directed to, or for the records of, senior executive branch officials, including the president.
After the lower courts turned away Trump’s challenges, the Supreme Court not only granted certiorari but put those rulings on hold pending its disposition of the president’s appeals. That means if the Supreme Court holds that Trump’s suits should not have been brought in the first place, his accountants and bankers would be free to comply with Congress’s requests.
A parallel line of cases has arisen from defiance of congressional subpoenas by executive branch (and former executive branch) officials, including former White House counsel Donald McGahn, in which Congress has sued to seek enforcement of its subpoenas. In February, a divided three-judge panel of the D.C. federal appeals court held that Congress could not use the courts to enforce such subpoenas — because “Article III of the Constitution forbids federal courts from resolving this kind of interbranch information dispute.” That decision already has been vacated by the full court of appeals, which heard the argument last month.
But similar reasoning seems to be the motivation for the April order from the Supreme Court — which could see the Trump cases as an opportunity to hold that all interbranch information disputes have to be resolved politically, and not judicially. In cases like McGahn’s, where the recipient of a subpoena does not wish to comply, such a ruling would leave Congress with no mechanism for enforcing its subpoenas beyond its own coercive powers, which include spending cutoffs, inherent contempt, and, in extreme cases, resurrecting the long-dormant power of the House and Senate sergeants-at-arms to arrest and detain recalcitrant witnesses. Indeed, for former executive branch officials such as McGahn, the last option may well be the only available one — raising the rather disturbing specter of armed confrontations between the legislative and executive branches.
So if the Supreme Court holds that these two cases are not justiciable, the immediate loser may well be Trump — especially if Mazars and Deutsche Bank choose to comply with the congressional subpoenas. But the long-term loser clearly would be Congress. Such a split verdict may help explain why, in the briefs filed in response to the justices’ invitation, each of the parties urged the court to reach the merits of Trump’s argument. Otherwise, lawmakers would be left either to try far more coercive measures to compel the executive branch to comply with each individual information request (even mundane ones), or to settle for a significant loss of their ability to conduct meaningful oversight of the administration.
If this story sounds familiar, that’s because it is. In 1974, after the Watergate special prosecutor issued a subpoena to Nixon for tapes from the White House recording system, the president fought the subpoena all the way to the Supreme Court. In a unanimous ruling widely understood as a hard-fought compromise, the Supreme Court held that Nixon had to comply with the subpoena — but only after recognizing, for the first time, that the Constitution itself recognizes an “executive privilege” that protects most internal, confidential presidential communications from compelled disclosure to Congress or prosecutors. By holding that such a privilege was grounded in the Constitution, the justices delivered a huge victory to the executive branch even as it ruled against the president on the specifics; Nixon lost, but the presidency won.
The Nixon decision is more than just a parallel to the present. In many ways, the justices’ recognition of a constitutionally grounded executive privilege in 1974 is indirectly responsible for today’s impasse, in which Congress has largely been left to issue subpoenas to former government officials (such as McGahn) or third parties (such as Mazars) if it wants to conduct meaningful oversight of the Trump White House. As it turns out, litigation over claims of executive privilege has proven to be time-consuming and has not tended to produce definitive answers. As with the recognition of executive privilege in the Nixon case, a ruling in the Trump cases that courts must stay out of these disputes also would inevitably tilt the separation of powers further in favor of the executive branch — as Congress will be left to choose between little if any oversight and direct confrontation every time it seeks any information from anyone in the federal bureaucracy. As in Nixon’s case, Trump would lose, but the institution of the presidency would win. That may feel like a compromise to at least some of the justices, but the only thing it would really compromise is the balance of powers among the three branches.