As the Biden administration enters its second year, former President Donald Trump still accounts for a significant portion of the legal disputes over the scope of Congress’s investigative power. Some cases that began while Trump was in office are still winding their way through the courts, while the House investigation into the January 6 insurrection has become the target of more challenges by Trump and his allies. But even though many recent high-profile cases have Trump’s name on them, friction between the legislative and executive branches over investigations is a bipartisan phenomenon. This has led members of Congress from both parties to express interest in strengthening the tools at their disposal in information disputes.
There’s a lot of action pending in the courts and in Congress this year that could shape the contours of congressional oversight for years to come. Here’s our rundown of the key issues to follow.
Are Pigs Flying?
Let’s start with something that’s been in short supply in recent years: a win for congressional oversight. On January 19, the Supreme Court rejected Trump’s effort to block the National Archives from turning over several batches of documents from his administration to the House’s January 6 committee. The court’s order concluded a whirlwind three months of litigation that saw both a federal district judge and a three-judge appellate panel rule decisively in the committee’s favor.
The bottom line is that the committee is going to get the documents it asked for. Even better for effective oversight, the litigation imposed only a relatively small delay (unlike, say, the Mazars case that revolves around the House’s efforts to obtain financial information from several of Trump’s accounting and banking firms … more on that later). It’s now up to the committee to determine whether the documents shed light on the insurrection or on how to prevent future such attacks on democracy, but the fact that the courts got it right (and got it right fast) is a rare outcome worth celebrating.
Slipped into the Supreme Court’s ruling, though, is a line that could complicate similar disputes in the future. The question at the heart of the case was how to weigh a former president’s claim of executive privilege against Congress’s compelling need to obtain information and the incumbent president’s waiver of the privilege. Thanks to the Supreme Court, that question is still unresolved.
“The question at the heart of the case was how to weigh a former president’s claim of executive privilege against Congress’s compelling need to obtain information and the incumbent president’s waiver of the privilege.”
A bit of background: Executive privilege is the principle that lets some internal White House communications stay secret even after a president has left office, on the theory that candid advice is important for informed decision-making. But the privilege isn’t absolute: It’s intended to serve the best interests of the country, not an individual president, and if Congress or a court really needs the information, that interest may outweigh the privilege.
When Congress wants information from a past administration (which the National Archives stores), the archivist must check with both the current and former president to see if they will claim executive privilege. In this case, for the first time, the current and former disagreed. President Joe Biden concluded that it was in the best interest of the country to release records, while Trump claimed they were privileged. Both the district court and the court of appeals wrote extensive opinions grappling with how to balance those claims, and concluded that a former president has to make a particularly strong case in order to outweigh both the current president’s judgment and Congress’s need for the information.
The Supreme Court waved all that reasoning away. It seized on a sentence in the appeals court’s ruling that suggested that Trump would have had to turn over the documents even if he were the sitting president. Because of that line, the Supreme Court said all the analysis about a former president’s claim of privilege was unnecessary and future courts cannot rely on it. While it doesn’t affect the practical outcome here, it means next time the issue arises, the courts will be starting at square one.
Back to Trump v. Mazars: It’s a new year, but that case is still going strong. Back in 2020, the Supreme Court ruled that when Congress seeks personal information from a sitting president, it must satisfy a special four-part test to make sure the investigation is legitimate and doesn’t overburden the president. To be clear, it invented this test out of thin air, dangerously tipping the scales in the favor of a president in oversight cases. And, it decided not to do the hard work of actually applying the rule to the case. Instead, it punted the proceedings back to the lower courts to sort out the details.
We were, shall we say, skeptical of the ruling at the time, and subsequent events have unfortunately shown that we were right to be suspicious. The saving grace of the test was that it was supposed to apply only in the very narrow circumstance of Congress seeking personal records from a current president. But we were concerned that it would gradually expand to cover other scenarios, further eroding Congress’s ability to conduct effective oversight. Sure enough, in the summer of 2021, the courts chipped away further at Congress’s ability to get information it needs. Although former presidents are, legally speaking, just like anyone else, the district judge overseeing the latest stage of the Mazars case developed what he called a “Mazars-lite” test (seriously), giving former presidents more legal protection than anyone else facing a congressional subpoena (albeit still less protection than is afforded a sitting president). Using the “lite” test, the judge decided that Congress could get some of the records it requested. Trump, meanwhile, still claims he should get as much protection as a current president — one of the issues the DC Circuit will have to sort out when it issues its next ruling in the case.
Our other concern when we wrote about the case in the fall of 2020 was the sheer amount of time the litigation was taking. Every day a case like this goes on is a day Congress doesn’t have the information it needs to do its job. Fifteen months later, the case is back in the middle tier of the federal judiciary, with the potential for even more rounds of appeals.
The key questions: First, will this case be resolved in time for Congress to do its work? Congressional time is a limited resource, and at some point, today’s congressional oversight priorities will change. People with information Congress needs shouldn’t be able to draw out lawsuits so long that they block oversight before it even starts. Second, are we really going to have to add “Mazars-lite” to the constitutional canon? Unfortunately, we’re probably stuck with the Supreme Court’s made-up test from 2020 for the foreseeable future. But it’s critical that the courts pass up the chance to further erode Congress’s ability to conduct oversight. It’s worth paying attention to whether the appeals court adopts the “Mazars-lite” test or gives Trump more (or less) protection now that he is a former president.
Get Out, and Stay Out?
Rounding out the major Trump lawsuits is a dispute over the House Ways and Means Committee’s request for the IRS to release some of Trump’s past tax returns to lawmakers. This dates back to 2019, when the committee first made its request. As we discussed, the Justice Department’s Office of Legal Counsel (OLC) issued the kind of memo that exemplifies why we’re committed to reforming that office: It concluded that the IRS could second-guess the committee’s stated reasons for requesting the information and withhold the tax returns if the IRS decided the committee’s true motives were illegitimate. When the committee renewed its request in 2021, OLC reconsidered its prior memo and got the law right: The IRS had to comply. Trump sued to block the IRS from releasing the returns, but was bounced out of court, by a judge he appointed no less. (The opinion in a nutshell: “He [Trump] is wrong on the law.”)
The district judge correctly ruled that Congress had articulated a valid legislative purpose for seeking the returns, and as far as the courts are concerned, the analysis should stop there. But Trump has appealed, with oral argument in the DC Circuit still several weeks away.
The key question: How long can Trump stall? This is another instance where the legal question has been adequately answered: Trump doesn’t have a case. But it’s anyone’s guess as to how long it will take for the litigation to end.
Disorder in the Courts
In addition to seeking records from the National Archives, the January 6 committee has been busily issuing subpoenas to other people in Trump’s orbit. The overwhelming majority of those people have complied with the committee’s requests. But some, most notably former White House Chief of Staff Mark Meadows, have responded by suing the committee seeking to stop the subpoena. Many of these lawsuits lack a certain seriousness.
The Supreme Court has held that the only valid way to prevent a congressional subpoena from being enforced is to prove that Congress lacks a legislative purpose. Once it’s clear Congress has that purpose, the Constitution’s speech and debate clause makes Congress and its members immune from lawsuits. The issue of whether the January 6 committee meets that threshold was conclusively answered in the committee’s favor in the National Archives case, and that should (should!) be the end of that. Although several lawsuits claim that the committee is improperly constituted, speech and debate immunity should mean those claims get dismissed because it prevents the courts from overruling Congress’s decisions about how it does its business. Even if a court considers them, however, the committee is on solid footing because prior rulings and past episodes support the committee’s position.
There is another wrinkle in some of the cases: In addition to suing the January 6 committee, some people are suing their cell phone providers to block them from giving the committee metadata about their calling and texting activity. It’s true that the First and Fourth Amendment rights to free speech and privacy protect people in congressional investigations just like in criminal cases. However, the Fourth Amendment and federal law don’t afford the type of metadata at issue (which does not include the content of the calls or texts) particularly robust protection against search and seizure, so it seems unlikely that these challenges will succeed either.
The key question: Will these lawsuits be short-lived obstacles or throw a wrench in the committee’s investigation?
Getting the House in Order
The latest phase of the January 6 committee’s investigation has it turning its attention to fellow members of Congress, including House Minority Leader Kevin McCarthy. Committee Chair Bennie Thompson has indicated he is willing to subpoena members if they don’t comply with requests for information. The congressional ethics committees subpoena members, and the Constitution gives Congress near-total control over its internal business, so it’s hard to find a reason the January 6 committee couldn’t issue member subpoenas too. That said, it would be unprecedented, and any time an unprecedented situation crops up, it’s a sure invitation to litigation.
The key questions: If members of Congress refuse to cooperate, will the committee take the plunge on member subpoenas? If it does, will the courts want to get anywhere near the ensuing challenges?
They’re Not Going to Take It?
In December, the Senate Judiciary Committee held a meeting ostensibly to consider a slate of nominations for federal judges and prosecutors. But as is often the case with low-profile nomination hearings, the conversation soon veered onto other topics. In a scene remarkable for its bipartisan accord, one senator after another expressed their frustration with the Justice Department’s longstanding habit of blowing off inquiries from members of the committee charged with its oversight. Senators ranging from Democrats Dick Durbin (the committee’s chair), Sheldon Whitehouse, and Patrick Leahy, to Republicans Chuck Grassley (the ranking member), John Kennedy, and John Cornyn seemed ready to say enough is enough, committing to exploring the tools at their disposal, such as withholding appropriations or pursuing contempt charges, to ensure they get information they request from the department. The senators pledged to meet privately to discuss how to proceed.
The key question: Will the senators turn their frustration into public action? (We hope so.)
“One way frustrated senators could stick up for their oversight prerogatives is by passing the Protecting Our Democracy Act, which the House approved in a bipartisan vote last year.”
Protecting Our Democracy
Members of Congress from both parties have an interest in defending their institution’s powers (not to mention defending the separation of powers more broadly). One way frustrated senators could stick up for their oversight prerogatives is by passing the Protecting Our Democracy Act, which the House approved in a bipartisan vote last year. PODA, as we affectionately call it, would create a variety of guardrails to rein in presidential abuses of power. One of those is a special fast-track procedure in court for cases involving congressional subpoenas. While we don’t think fast-tracking lawsuits is a panacea, it’s impossible to argue it’s unnecessary in light of the glacial pace of most recent cases.
The key question: Will members of Congress set aside partisanship to revive their constitutional oversight powers? (Again, we hope so.)