SCOTUS Decision Spells Uncertainty for Congressional Oversight of a President

(WASHINGTON)—While the Supreme Court today upheld the authority of Congress to subpoena documents for a necessary legislative purpose, this case is far from a complete win for congressional oversight. The courts will now become mired in litigation over the “special concerns regarding the separation of powers.”

“While the principles articulated in the ruling on its face seem to empower Congress to obtain information on the president, I’m troubled that the criteria crafted by the Supreme Court could create practical concerns for Congress going forward. This decision could empower a president to delay congressional scrutiny, and it’s unclear how the lower courts will apply the court’s criteria on a case-by-case basis,” said Sarah Turberville, director of The Constitution Project at the Project On Government Oversight. “While this fight remains in the courts, Congress can and must find ways to bolster its subpoena powers.”

The ruling in Trump v. Mazars could effectively allow a president to skirt scrutiny from Congress on personal matters by initiating a lengthy, burdensome court process. With the standards laid out by the Supreme Court today, we must push for courts to take up these matters with an expedited process and with deference to constitutional checks and balances.

Congress must be able to conduct oversight of the executive branch. As we highlighted in an amicus brief we organized of former members of Congress, some of the most significant congressional investigations in the history of our country have touched upon matters involving the president and those close to him—from Teapot Dome to Watergate to Iran-Contra—and many more in between. And the need for Congress to investigate executive branch misdeeds could not be clearer as the country faces a pandemic and trillions of taxpayer dollars have been spent to fight the fallout.

Congress’s oversight power has eroded over the past few decades, with the executive branch thwarting investigations with increasing success. Congress must find other ways to enforce its executive branch subpoenas, such as holding noncompliant individuals in contempt and using power of the purse to compel compliance.

Our congressional expert Mort Rosenberg has suggested a new way to prosecute contempt of Congress. In a resolution to hold a noncompliant individual in contempt, Congress could appoint a special outside prosecutor. That prosecutor could then call a grand jury to consider a criminal contempt case.

In better news, the Supreme Court also ruled 7-2 today in Trump v. Vance that the Constitution does not preclude or require a heightened standard for a state criminal court to issue the president a subpoena.

While it may seem obvious to most Americans that no president could be absolutely immune from criminal investigation while in office, we’re pleased that the Supreme Court has affirmatively said so—upholding 200 years of precedent that our elected officials are not immune from judicial process. With this ruling, the court has protected the separation of powers and provided some assurance that no president may use the office as a shield to protect and hide his misdeeds. It is clear that the Founding Fathers did not intend for the executive branch to be utterly above the law.

That case, too, is nonetheless remanded back to the lower court, “where the President may raise further arguments as appropriate."

Media Contacts:Sarah Turberville, Director of The Constitution Project at the Project On Government Oversight (POGO), [email protected]; or Caitlin MacNeal, Media Relations Manager at POGO, [email protected]

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Founded in 1981, the Project On Government Oversight (POGO) is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing.

We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.