From Portside <[email protected]>
Subject Historic Power Struggle Between Trump and Congress to Be Reviewed by Supreme Court
Date May 11, 2020 5:46 AM
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[Were the Supreme Court to validate Trump’s position in either
case, or decline to decide the cases, it would stymie Congress and
force it to seek enforcement by arresting those who refused to honor
their subpoenas.] [[link removed]]

SUPREME COURT   [[link removed]]


Stanley M. Brand
May 8, 2020
The Conversation
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_ Were the Supreme Court to validate Trump’s position in either
case, or decline to decide the cases, it would stymie Congress and
force it to seek enforcement by arresting those who refused to honor
their subpoenas. _

Justices of the Supreme Court will hear a crucial case on the limits
of presidential power., Getty/Saul Loeb/AFP


On May 12, the Supreme Court will hear argument in two cases
concerning congressional demands, known as subpoenas, for materials
that President Donald Trump claims are intrusions into his private
affairs and are not legitimate uses of congressional power.

One other case to be argued at the same time involves the Manhattan
district attorney’s subpoena of records from Trump’s businesses
[[link removed]]
as part of an investigation of state tax law violations. Trump is
fighting that one, too.

Not since the “Red Scare” subpoena cases from the 1950s-1960s,
where Congress conducted hearings that many called political witch
hunts against alleged communists, and the Watergate era in the 1970s,
when President Nixon claimed through his attorney that he was “as
powerful a monarch as Louis XIV, only four years at a time, and is not
subject to the processes of any court in the land except the court of
impeachment,” has the Supreme Court taken up such far-reaching
questions about the ability of Congress to oversee and check the
president’s power.

Either Congress will be able to maintain its historic role of
conducting oversight of the president and the executive branch, the
president will be able to keep information secret no matter what –
or the court will punt and the two branches of government will remain
locked in the conflict.

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Trump is fighting congressional demands for financial records.
Getty/Jim Watson/AFP
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From ethics to emoluments

Congress is investigating whether Trump used his power as president to
profit his business
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whether he accurately reported his finances
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government employees are required to do, and whether he accepted gifts
from foreign governments without permission from Congress, which is
banned by the Constitution
[[link removed]]. This
ban reflected the Framers’ concern that no official be subject to
foreign intrigue or influence of any kind — a common practice at the
time among foreign sovereigns.

The first case, Trump v. Mazars
[[link removed]],
relates to those investigations. Trump is trying to stop his
accountants and the bank he deals with from providing information
subpoenaed by two House committees – oversight and intelligence.

Trump objected to these subpoenas
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on the grounds that they lack a legislative purpose and that their
true aim is to obtain personal information for political advantage.

The Court of Appeals rejected this argument. It found that the records
the congressional committees wanted were relevant to Congress’s
legislative duties, and thus the subpoenas were legitimate.

All subpoenas from, and investigations by, Congress must have a
legislative purpose
[[link removed]].
By law, Congress has the authority to pursue any “subject on which
legislation can be had
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as well as inquiries into fraud, waste and abuse in government
programs. The broad standard for upholding that investigative power is
affirmed in the Supreme Court’s ruling in McGrain v. Daugherty
[[link removed]] in 1927, which
established that “the power of inquiry – with process to enforce
it – is an essential and appropriate” aspect of how Congress
carries out its legislative function.

Congress acted appropriately

The second case involves House committee subpoenas for Trump
companies’ bank records from Deutsche Bank and Capital One. As with
the Mazars case, Trump has tried to stop the banks from handing over
the documents.

Those subpoenas are related to reviews by the House Financial Services
Committee and the Intelligence Committee of the movement of illicit
funds through the global financial system and money laundering.
Deutsche Bank, which has loaned large amounts of money to Trump
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has already been fined $10 billion
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for a money laundering scheme unrelated to Trump.

The Court of Appeals rejected Trump’s argument
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and said Congress was legitimately entitled to pursue and get the

They wrote that the committees’ focus on illegal money laundering
was not on any purported misconduct by Trump but instead on whether
such activity occurred in the banking industry, the adequacy of
banking regulation and the need for legislation to fix any problems
— all legitimate oversight goals.

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President Bill Clinton fought against being deposed in the Paula Jones
sexual discrimination suit; he lost and had to comply. Getty/AFP
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Nixon, Clinton precedents

Neither of these cases involves the president claiming executive
privilege [[link removed]] –
the doctrine that keeps confidential many of the communications
between the president and his closest advisers. Nor do the cases
involve any challenge to the performance of his official duties.

Both concern only his private business activities before he assumed
office. The records from before he was president are relevant because
he refused to divest from his businesses, raising the concern whether
his official actions once in office conflict with, or appear to
conflict with, his existing business interests.

Two previous Supreme Court cases will in all likelihood weigh
significantly in its decisions in these cases.

One is United States v. Nixon
[[link removed]], which took place during the
Watergate scandal, when Special Prosecutor Leon Jaworski subpoenaed
the tape recordings
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of conversations between the president and four of his advisers who
had been indicted. President Richard Nixon tried to claim executive
privilege, saying the recordings of conversations between him and his
advisers were confidential and should not be given to the special

The court ruled unanimously that the need for the tapes in the
aides’ upcoming trial outweighed the president’s claim of
confidentiality. And although no case applying the Nixon case
precedent to a congressional subpoena has reached the Supreme Court,
the implication drawn from the case
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is that if his privilege can be overcome by a subpoena for
conversations with his closest aides, business records generated
before a president came to office can legitimately be subpoenaed by

“The ruling rejected what it called the notion of ‘absolute,
unqualified Presidential privilege of immunity from judicial process
under all circumstances,’ which has an obvious impact on any
president under serious suspicion, such as President Trump,” wrote
presidential historian Michael Beschloss
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to a Washington Post reporter in 2018.

The other case relevant to these decisions is Clinton v. Jones
[[link removed]]. The case stemmed from a
sexual harassment suit against Clinton concerning his conduct before
his presidency. Clinton had refused to give a deposition in the case,
insisting that it would be a distraction from his duties as president
and an invitation to litigants to harass any president while in office
with lawsuits.

The case description on the Supreme Court website
[[link removed]] asks, “Is a serving
President … entitled to absolute immunity from civil litigation
arising out of events which transpired prior to his taking office?”

The court’s answer: No.

Will the court rule?

These two decisions established precedents that seem to portend defeat
for President Trump in the upcoming hearing.

Were the Supreme Court to validate Trump’s position in either case,
or decline to decide the cases, it would stymie Congress and force it
to seek enforcement by arresting those who refused to honor their
subpoenas. That’s the way the Senate enforced its subpoena in the
McGrain case and how Congress frequently operated in the 19th century.

The court has asked for additional briefing from the parties on
whether the cases are not suitable for judicial decision as
“political questions.” That legal doctrine says some cases are so
politically freighted
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federal court system should not consider them – they should be
resolved by the political players.

This has fueled speculation that the court may decide not to referee
the dispute using the political doctrine as it has done in other cases
involving disputes between Congress and the president over war powers
or the disposition of the Panama Canal.

None of this indicates how the court will decide in the cases, only
that whatever it decides will be momentous in the annals of
congressional disputes with the president.

[_You’re smart and curious about the world. So are The
Conversation’s authors and editors._ You can read us daily by
subscribing to our newsletter
[[link removed]].]

Stanley M. Brand
[[link removed]],
Distinguished Fellow in Law and Government, _Pennsylvania State
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This article is republished from The Conversation
[[link removed]] under a Creative Commons license. Read
the original article
[[link removed]].

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