During his confirmation hearing, in 2018, Brett Kavanaugh insisted that “one of the greatest moments in American judicial history” was the case of United States v. Nixon, in 1974. In a unanimous decision, written by Chief Justice Warren Burger, one of President Richard Nixon’s appointees, the Supreme Court rejected Nixon’s claim of absolute executive privilege, ordering him to comply with a judicial subpoena to turn over the White House tapes that would lead to his resignation. In an article from 2016, Kavanaugh wrote, admiringly, that the Justices “stood up to the other branches, were not cowed, and enforced the law.” In the coming months, several cases will test the Court’s strength in this regard. In each of these cases, President Donald Trump is attempting to block the examination of his conduct, by claiming that the chief executive is immune from various forms of investigation. At stake in these cases is the public’s ability to know about, and seek accountability for, misconduct. But, more important, they represent a gut check for our system of separation of powers. As the Supreme Court hears these cases, beginning this month and extending through the next term, it will enter what may prove to be among its greatest moments or its worst.
The most important of the crop is Committee on the Judiciary v. McGahn, about whether a court can force the President’s close aides to obey congressional subpoenas, against the President’s orders. More than a year ago, the House Judiciary Committee issued a subpoena to the former White House counsel Don McGahn, ordering him to testify about Trump’s possible obstruction of justice, corruption, and abuse of power. Trump directed McGahn to disobey the subpoena, and McGahn did not appear before Congress. (Trump’s former chief of staff Mick Mulvaney disobeyed a similar subpoena, and his former national-security adviser John Bolton disregarded the House’s demand for testimony, also on Trump’s orders.) Last August, the Judiciary Committee asked a district court to compel McGahn to appear. The Trump Administration claimed, in response, that the constitutional power of the President entails “absolute immunity” for his close aides. A district court rejected that sweeping claim, stating bluntly that “presidents are not kings.” But, in February, a panel of the D.C. Circuit Court of Appeals vindicated Trump by holding that courts don’t have the constitutional power to address Congress’s complaint, even if flouting congressional orders is unlawful. That means that Congress must negotiate with the President to get executive officials to appear or take enforcement into its own hands—although it’s been more than a century since Congress directed its sergeant at arms to jail people in the Capitol for contempt (and the Administration claims that Congress lacks that power as well). This week, the full D.C. Circuit Court of Appeals heard the case, and appeared to favor Congress’s arguments—just as the Administration blocked Anthony Fauci from testifying, this coming Wednesday, in a House investigation on the White House’s response to the coronavirus pandemic. Whatever the result of the case, it is sure to head to the Supreme Court.
In addition to fighting the McGahn subpoena, Trump is pressing lawsuits challenging legislative and judicial subpoenas of his financial and business records, stretching back to 2010. Three of those cases will be argued before the Supreme Court by teleconference, on May 12th, after arguments were postponed earlier this spring because of COVID-19. Two of them, Trump v. Mazars USA and Trump v. Deutsche Bank, involve House subpoenas for Trump’s financial information, which the committees on Oversight, Financial Services, and Intelligence issued to his accounting firm, Mazars, and to Deutsche Bank and Capital One in April, 2019. The committees claim that the subpoenas are meant to inform investigations into how to legislate in a range of areas, including government ethics, financial disclosures, money laundering, and foreign influence on elections. Trump claims that Congress’s true purpose with these subpoenas is to determine whether he committed criminal wrongdoing, and that Congress is really engaged in law enforcement, which is an executive function rather than a legislative one. Two appeals courts, and two district courts before them, correctly decided against Trump, because seeking information in investigations, in order to aid in consideration of legislation or impeachment, has long been part of the role of Congress. These cases are likely less controversial for judges than the McGahn case, because the subpoenas were directed to private parties rather than an executive official, so the dispute presents less of a direct conflict between Congress and the President.
Also on May 12th, the Supreme Court will hear Trump v. Vance, Trump’s challenge to a similar subpoena, from a grand jury in the investigation of his business dealings by the Manhattan District Attorney, Cyrus Vance, Jr. As part of Vance’s investigation, which targets Trump for possible criminal indictment, his office demanded Trump’s financial records, including his personal tax returns, from Mazars. The Justice Department’s long-standing position is that the President cannot be federally indicted while in office, but, as a state prosecutor, Vance is considering indicting Trump under New York criminal law, during or after his Presidency. Trump claims that the constitutional power of the chief executive, combined with the Supremacy Clause, which makes federal law “the supreme law of the land,” means that no prosecutors may target him while he is President, even for investigation. Trump is also claiming that a criminal prosecution would distract him from doing his job, an argument that Bill Clinton made to the Supreme Court, in 1997, in an effort to have Paula Jones’s civil sexual-harassment lawsuit halted during his Presidency. There’s certainly something to the idea that it’s very difficult for anyone, let alone a President, to perform his or her job while facing prosecution or even a civil suit—but the Supreme Court unanimously decided against Clinton, saying that, while lawsuits over conduct from before a Presidency may distract from executive duties, they are not barred as a matter of constitutional separation of powers. Criminal prosecutions may be different. But, while concerns about subjecting a sitting President to criminal indictment seem justified, they are far less persuasive when it comes to merely conducting an investigation, and especially with regard to a subpoena to a third party, which doesn’t require anything of the President.
In his court fights, Trump is repeating a refrain that the only constitutional means to hold a President accountable for wrongdoing is impeachment. But, of course, we know that Trump was able to hamstring his impeachment last year by directing disobedience of congressional orders, making House Democrats vulnerable to criticism that they proceeded without key evidence. (The House even attempted to rebuke Trump’s defiance by tacking on “obstruction of Congress” as an impeachment article.) Then Trump’s lawyers said during the Senate trial that the House hadn’t tried hard enough to pursue judicial enforcement of subpoenas for the missing evidence. Trump went on to claim in court, in a bald Catch-22, that courts cannot enforce subpoenas for evidence of his wrongdoing because the proper avenue for Presidential accountability is . . . impeachment. Now the separation of powers is in danger of being reduced to a nauseating merry-go-round, in which neither Congress nor the Supreme Court can check the President, because each says that the other should do it. Solving this dilemma is now thrust on the Court, which will decide Trump v. Mazars and Trump v. Deutsche Bank together by this summer, and Trump v. Vance in the same time frame, and must also be thinking about the likelihood that it will hear the McGahn case next term.
In one or more of the instances of Presidential resistance to legal orders, the Court could find that Trump has overestimated his power. Or it could find, to the contrary, that Congress, or Vance, cannot compel executive-branch officials—or private parties—to provide information about the President. While the Vance case will be the easiest for the Justices to decide against Trump, it could well be accompanied by a win for Trump in the cases involving congressional subpoenas. In those cases, the Court may use the off-ramp that the D.C. Circuit panel took in the McGahn case, saying that the Constitution does not allow a court to decide. Just two weeks before oral arguments, the Supreme Court hinted at the attractiveness of this last option by asking the parties and the Justice Department for supplemental briefs about the Court’s authority to adjudicate the cases. This direction could be particularly appealing to the conservative majority, which may be loath to decide against the President but also doesn’t wish to endorse Trump’s disobedience of legal orders. Even that option, though, would create the unfortunate appearance of acquiescing to a President who has regularly denigrated the authority of both Congress and the judicial system, particularly if the decisions were to split, with a familiar 5–4 conservative majority.
Republicans in Congress have put the Court in a particularly difficult position. President Nixon threatened in advance to disregard a Supreme Court order to hand over the White House tapes. In the end, he complied, because it was clear that, if he didn’t, his impeachment was certain; at that time, Republicans in Congress would not have tolerated disobedience of the Court. But in this hyperpartisan moment, congressional Republicans and their constituents might not condemn Trump’s obstruction of a court order, let alone allow it to become the basis for another impeachment or other political sanction. It’s possible that, in anticipation of that, some Justices might even feel that siding with this President, or not deciding at all, is a better way of protecting the Court’s authority than standing up to him.
During this Presidency, Chief Justice John Roberts has resisted the pervasive narrative of judicial partisanship, famously rebuking Trump’s swipes at judicial independence, by insisting, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges” but rather “judges doing their level best to do equal right to those appearing before them.” The Chief Justice may want to find a nonpartisan compromise—but, in these cases, one does not exist. That would counsel in favor of the Court standing up to the other branches and enforcing the separation of powers in a merits decision, much as it did in the Nixon case. For those at the top of the judicial branch, there is a motivation that is greater than partisanship: the desire to retain the perception of legitimacy that is most crucial to maintenance of its power. That legitimacy now hangs on the Court’s ability to demonstrate that neither the President nor any party is supreme over it.
A previous version of this piece incorrectly described a House request for Bolton to provide testimony.
