Congress Needs to Reclaim Its Time from the Courts

This is the third part of an occasional series on the legal fights over congressional oversight. Read parts one and two.

The election is behind us. The 116th Congress will end in less than two months, and it appears the Trump administration will follow it on January 20. But thanks to the Supreme Court’s ruling this summer in Trump v. Mazars, one of the court cases about President Donald Trump’s fight against congressional oversight, the new Congress and administration will face major unresolved questions about Congress’s power to oversee the president.

Over the summer, the Supreme Court ruled that presidents, like the rest of us, can be subject to congressional demands for information, but at the same time created several new hurdles for Congress when it seeks information from a president. With the case now back before the DC Circuit Court of Appeals, which is tasked with sorting out the Supreme Court’s instructions, it’s clear that we’re nowhere near a resolution—and that’s bad for accountability. The Mazars case shows that if congressional oversight investigations wind up in court, the process can undermine them even when the law is on Congress’s side. Congress needs to act to make sure its powers aren’t eroded even further.

The Mazars dispute stems from the efforts of three House committees to compel Trump’s financial and accounting firms, including Mazars USA, LLC, to release records about the president’s personal finances. The committees indicated they were examining the adequacy of existing ethics laws and attempting to verify testimony of former Trump attorney Michael Cohen. Trump sued the firms to block them from producing the records, and lawyers for the House became involved to defend the subpoenas.

The Supreme Court has long recognized that Congress can subpoena information on anything that can be the subject of legislation, and deferred to Congress when examining if a subpoena served a “legitimate object” of the legislature. If Congress said it needed information to legislate, the courts would consider the subpoena valid.

But this time, Trump’s lawyers convinced the Supreme Court to break from the precedent of deference to Congress about its legislative needs. Instead, the court held that when Congress is seeking “personal information” from the president, special rules apply. In those instances, courts must now ask four questions: Is the president the only person who could provide the information? Does the subpoena only require information Congress needs? Did Congress provide clear evidence of its legislative purpose? And is the subpoena so burdensome that it would prevent the president from carrying out important duties?

The court’s confirmation that Congress can subpoena a sitting president is good news for oversight. And fortunately for Congress, the decision is limited to the very rare circumstance of a congressional subpoena of “the President’s personal information.” It does not, and should not, affect oversight subpoenas directed at other government personnel or agencies, much less those directed at private parties. In those cases, the previous standard—whether a subpoena is for information that falls within the legislative sphere or not—still applies. For everyone but the president, the courts are still supposed to approach efforts to stop a congressional subpoena as they have for decades: with a great deal of deference to Congress. (The Supreme Court has held that people can’t sue Congress directly to preemptively block a subpoena, which further limits cases the Mazars ruling can affect.)

But that’s where the good news ends. This ruling poses several risks that are reason for concern. One is that enterprising lawyers at the Justice Department may try to expand the universe of cases where the test is used, or to come up with other circumstances that justify special rules. It will be up to the courts to see through those attempts and keep this ruling appropriately limited. If they don’t, it’s not hard to imagine this case snowballing to allow other executive branch officials to sue to block enforcement of congressional subpoenas in their attempts to stymie oversight.

Another risk comes from the judges who will have to apply the new test in this and future cases. At its core, the test purports to balance the interests of Congress and the president. As a result, applying the test appropriately requires judges to fully recognize the importance of congressional oversight. If they don’t, the scale will already be tipped in the president’s favor.

This might be challenging for judges. Congressional investigations are fundamentally different from most judicial proceedings. Searches and warrants in criminal investigations, for instance, need probable cause—a clear reason to believe the subject of an investigation is guilty. The nature of credible congressional investigations, however, is different. A considered, legitimate congressional investigation should presume no conclusions at its outset. Instead, it should proceed under the assumption that all possibilities are open until all the facts are in. To presume legislation will be written, what such legislation would say, or even that there is a need for legislation, is to prejudge the investigation. That’s not unbiased, effective oversight.

Unfortunately, the Mazars opinion suggests that the justices may not understand this. One of the new standards requires Congress to be as specific as possible about the legislative purpose that the information it’s seeking from the president will support, a significant departure from the courts’ traditional approach of deferring to Congress in what it says it needs to do its job. The extra specificity is at odds with the open-mindedness essential to effective oversight. An investigation with a predetermined outcome might be more likely to survive judicial review under this standard because congressional investigators could fill in the blanks with their preferred facts, but the legislative process and the American people would be worse off for it.

Another troubling aspect of the Mazars ruling is that the new test instructs the courts to pay particular attention to whether a subpoena will burden the president, without explicitly asking if withholding the information or engaging in lengthy litigation would burden Congress. Indeed, the court implied that, when it comes to getting information from the president, Congress should have a harder time than private citizens or even local prosecutors do. Since Congress is a co-equal branch of government, to say its subpoenas require more scrutiny than subpoenas from anyone else is “exactly backward,” as legal scholar Robert Black wrote for The Atlantic.

And then there’s an odd error that isn’t central to the case’s outcome, but still sticks out. “[Congressional subpoena] recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorney-client communications,” Chief Justice John Roberts wrote. Lawyers who advise clients facing oversight requests would be surprised to hear that. In fact, although Congress often does voluntarily recognize common law privileges like the attorney-client privilege, it does not have to. The privileges were created by courts for use in judicial proceedings and are not binding on legislative proceedings. While Congress does sometimes choose to recognize these privileges, Roberts’ characterization suggests he didn’t do his homework as carefully as he should have.

One potential factor contributing to these problems is that the justices’ own backgrounds may bias them toward siding with the executive branch. Of the justices who decided Mazars (it was one of the last opinions issued before the death of Justice Ruth Bader Ginsburg), only two had any congressional experience on their resume: Justice Clarence Thomas spent two years as an aide to then-Senator John Danforth (R-MO), and Justice Stephen Breyer was counsel to the Senate Judiciary Committee for several years. By contrast, seven justices on the Mazars court served in the executive branch, including six who held positions in the White House or at high levels of the Justice Department.

Beyond the problems in how the courts have handled the substance of the Mazars case, there’s still another factor that’s guaranteed to work against Congress: time. Congress operates in two-year sessions, and has to restart its business with each cycle. It’s fairly straightforward (but not automatic) to renew a pending subpoena in a new session. But there are broader disruptions that put Congress at a disadvantage if it can’t complete an investigation, or at least get the information it needs, without delay. If pending legislation—which may be pending because information is being sought through the subpoenas—isn’t passed into law before the end of a session, it has to be reintroduced and once again go through the whole legislative process. Meanwhile, members leave, committees may be restructured, new crises arise that require immediate attention—all of which may mean important questions are left unanswered. Indeed, the coming transition illustrates the problem of delay, as just this week the House Judiciary Committee asked the Supreme Court to delay an argument in a case relating to records from Special Counsel Robert Mueller’s investigation so the new Congress can consider its options, and the Justice Department asked the DC Circuit to throw out the case about the House’s subpoena to force former White House counsel Don McGahn to testify because the 116th Congress is about to end.

And the courts are on track to take much longer than two years on several current congressional subpoena cases. The Mazars case started in April 2019, and, despite making it to the Supreme Court once, still has no end in sight. It’s back in the DC Circuit, where a panel of three judges is charged with applying the Supreme Court’s test. Whatever decision it issues can be appealed to the full circuit court and then to the Supreme Court—and Trump’s lawyers have argued that before any of that happens, it should actually go back down to the district court and work its way back up. The McGahn case (which we’ve written about previously and is similarly stuck in appellate limbo) began in August 2019, with the next round of arguments scheduled for early 2021. Another case over a House subpoena for documents related to the 2020 census has been sitting in district court since last November, its fate on hold while the higher courts sort out the McGahn case.

Regardless of what else happens, it’s clear that when congressional subpoena cases wind up in court, the courts have to move faster. And, as commentators have noted, it’s possible for the courts to do this. Indeed, they’ve demonstrated remarkable speed in the past. For instance, the courts dealt with the case about a subpoena (from a special prosecutor, rather than Congress) for the Watergate tapes within three months flat, and the Supreme Court took less than a week to decide the Pentagon Papers case. Even a past Supreme Court urged courts to move quickly in congressional subpoena cases, writing that speed was of the essence on such cases so that valid congressional investigations are not “frustrated” by “judicial interference.”

In the Mazars case, though, the current Supreme Court ignored its own advice. It refused to fast-track the purely administrative step of sending the case back to the lower courts for the next round of proceedings, a move that would have saved three weeks. It did, however, grant a request to fast-track a related case where the Manhattan district attorney is seeking records from Trump, showing it views Congress as less important than a local official.

The Justice Department’s argument to throw out the McGahn case is an ominous sign for oversight—it would set a precedent that a subpoena left unresolved after two years is unenforceable. Even worse, in the most recent argument in the Mazars case, the circuit judges indicated they might view the prospect of a new Congress in January as an off-ramp to spare them from having to make a decision. They pressed the House general counsel for a reason they should rush to issue a ruling now, rather than wait until the new House is sworn in. After all, one judge noted, perhaps the committees would modify their subpoenas, or even drop them.

That way of thinking makes sense for judges, in a way. If the congressional subpoenas expire, they don’t have to resolve a thorny case. Indeed, judges tend to avoid saying what the Constitution means if there are other ways to resolve a case (arguably, that’s what the Supreme Court was doing when it invented its new balancing test). In the subpoena cases, though, avoiding the constitutional question means waiting until Congress has lost the opportunity to perform its constitutional duties. If the courts let these cases go on for years, or even wait them to death, then people looking to avoid accountability can thwart congressional investigations just by dragging out litigation, regardless of the eventual outcome. This has to change, or else the courts will by default kill congressional efforts to check executive overreach or wrongdoing. When the judiciary drags its heels in cases such as these, it leaves Congress without the facts it needs to do its job.

So what can be done? In an ideal world, the courts would pick up the pace and start treating Congress like the co-equal branch of government it is. But if the courts can’t or won’t expedite proceedings in order to account for the unique time constraints of a congressional investigation, Congress can step in to force them to. The Constitution gives Congress a great deal of power over how the courts operate: Congress sets up all the federal courts except the Supreme Court, and it passes the laws that the courts apply. To speed up subpoena cases, Congress could use its authority to impose time limits on how long the cases can last, or establish special procedures to fast-track the cases. There is legislation pending in the House that would create this sort of procedure by limiting the layers of appellate review.

But improving the judicial process can’t be the only thing Congress does to shore up its investigative powers. The Mazars case shows that the litigation process comes with the risk that the rulings will inappropriately restrict Congress’s power. While Congress cannot prevent someone from suing to block its subpoenas, it can itself choose not to go to the courts to enforce its subpoenas against recalcitrant parties. It doesn’t need the courts at all.

As we’ve written before, Congress has the power of “inherent contempt”—the ability to enforce subpoenas on its own, without the help of the courts or prosecutors. To back up this power, it used to actually arrest people who defied its subpoenas. A pending House resolution would let the House general counsel issue fines instead, which may be a more feasible form of punishment. Whatever form a modern version of inherent contempt takes, it’s time for Congress to dust off this power, rather than leaving its prerogatives at the mercy of the courts.

Expediting litigation and reviving inherent contempt will clear some of the biggest obstacles to timely investigations. Reviving inherent contempt will allow Congress to enforce its constitutional powers without relying on judges, and clarifying and expediting the process for litigation will make sure people can’t obstruct investigations simply by filing a lawsuit. The fact that members of Congress have recently introduced bills that would do both of these things is a good sign that they are ready to address this problem.

It may be tempting for Congress to sit back and see what the Biden administration will do, in the hopes that it will take a more cooperative approach to congressional oversight. Indeed, any administration should approach congressional investigations with the respect and cooperation they deserve. But Congress should not be complacent: Stymying oversight has long been a bipartisan White House tradition, bolstered by Justice Department memos that reflexively shield the executive branch from congressional scrutiny. And even if the next administration does tone things down, congressional oversight is too important to leave at the mercy of a president’s attitude.

The next steps in the Mazars and McGahn cases will come too late for the investigations to yield information for the current Congress. But these cases’ outcomes, and Congress’s response, will be significant factors in whether Congress can preserve its power to hold the executive branch to account.