Yesterday, the Supreme Court heard oral arguments in two consolidated cases, Trump v. Deutsche Bank and Trump v. Mazars. Each case concerns subpoenas issued by three House Committees seeking information about Donald Trump in his personal capacity, along with information about his companies, and his family members. But the Committees did not request the information directly; instead they subpoenaed two banks and an accounting firm for the desired documents.
President Trump intervened, in his personal capacity, seeking to squash the subpoenas arguing that each was beyond the powers of the House Committees to issue. Trump and associates lost both cases in the Second Circuit and in the D.C. Circuit, and now their fate rests in the hands of the nine Supreme Court Justices after Tuesday’s oral arguments. But to paraphrase Justice Breyer, the issues in these cases go “way, way, way beyond just tax returns.”
The key question in both cases is whether the House Committees had the power to subpoena the requested documents. The question turns, in part, on how the Court looks at purpose and motive.
The Supreme Court has held that Congress has broad investigatory powers to obtain the necessary information to aid in its exercise of their Article I legislative powers. Part of those investigative powers include the power to issue subpoenas to obtain relevant information.
But that power is not unlimited. The Supreme Court has explained that this investigatory power should not be confused with law enforcement powers. This investigatory power is limited to only those areas over which Congress has the power to legislate. That is, for a legislative subpoena to be valid, the subpoenas must serve a valid legislative purpose.
How do we know if a subpoena serves a valid legislative purpose? The House argued to the Court that, the information its subpoena seeks must merely be pertinent to the announced legislative purpose. In other words, it must be completely irrelevant to not serve a valid legislative purpose, as long as Congress generally has the power to pass legislation in the areas considered.
This is broad and received quite a push back during oral arguments on Tuesday. Multiple Justices pushed Douglas Letter, the lawyer for the House of Representatives, to proffer a limiting rule that would not allow Congress to subpoena any documents from any person it wanted. Unfortunately, Letter offered no real limiting principle and Justice Kavanaugh was left unconvinced that a House Committee would be unable to subpoena President Trump’s medical records to inform general health legislation. Letter pushed back and argued instead that Congress could only subpoena them if they were looking at changing succession statutes or invoking the Twenty-Fifth Amendment.
The Impeachment Problem
Besides the broad argument for Congress’s power to subpoena documents, these cases are set against a backdrop of impeachment. Rightly or wrongly, many Democrats called for impeachment long before the Committees issued any subpoenas and even before the Democrats gained a majority in the House. Because of these real-world circumstances, many believe the real motive of these subpoenas was to investigate crimes that could lead to Trump’s impeachment, or at least his embarrassment, instead of the information being used to craft legislation.
The problem with this is that the Supreme Court has long held that in situations like this, the courts should look not to motives but only to purpose. That is, as long as a valid legislative purpose is being served, the courts lack the power to intervene.
Questioning the Government’s Motives
This issue of “motive” comes up in many of IJ’s economic liberty cases. We often argue that the announced, “health and safety” “purpose” of many economic regulations is nothing but pretextual and that the real reason (or motive) is protectionism, or handing out favors.
For example, New Jersey bans “bakers from selling cookies, cakes and muffins that were made in a home kitchen.” The announced “purpose” for this is health and safety. But the state simultaneously allows people to bake these same goods in a home kitchen and be sold for charity or at a nonprofit bake sale.
We argue that this exemption shows that New Jersey’s real reason, its motive, for banning the sale of cookies, cakes, and muffins made in a home kitchen is protectionism. That is, if you measure the announced purpose against the actual law, you can find the actual motive for this restriction: protecting commercial bakers from competition.
We can see how this works in another IJ case that was recently before the Georgia Supreme Court. There the state, in 2018, began requiring all lactation consultants to obtain a certification. Georgia did this under the guise of protecting new mother’s health and safety. But, Georgia exempted any lactation consultant who did not charge for their services.
Some Justices on the Georgia Supreme Court picked up on this during oral arguments and used the exemption to question whether the announced “purpose” was the real reason for the regulation. Again, the motive is important and can be found by measuring the law against the announced purpose.
We at the Center for Judicial Engagement have long advocated that the government must have both constitutional ends and constitutional means. That is, if the government has an unconstitutional reason for doing something, then even if the specific action is constitutional, the bad motive renders the action unconstitutional.
Back to Trump
Yet courts sometimes fear looking into motives. There is a concern that looking into motives requires depositions or the scouring of committee reports to find the “real reason” why Congress passed a particular law or issued particular subpoenas. There is hesitation because such a process is easily manipulatable and some have used motives in the past to overcome the plain language of specific statutes. But, as noted above, looking for motive is not as complicated, or hard, as that.
The Court can determine the motive by looking at the tailoring. That is, the Court should analyze the stated legislative purpose for the information being sought against what documents the Committees actually subpoenaed. This would allow the Court to better ensure that a real legislative purpose is being achieved without giving a blank check to the Committees allowing them to subpoena anything as long as they dress up the subpoena with the magical words.
This would ensure that ordinary Americans are protected in the future and ensure that Congress’ subpoena power does not become just another tool abused for partisan purposes. These cases are hard and involve subpoenas from three committees. But judges wouldn’t be judges if the work wasn’t hard.
The Court should take this chance to reaffirm that the government must have constitutional ends on top of a constitutional means. Just because this case involves one of the most controversial presidents in the past half century does not make this principal any less valid. Judges should judge in every case and not defer to legislative assertions of purpose when a close analysis of the announced purpose against what was done may reveal a much different, and possibly unconstitutional, motive. Such an analysis may also reveal that the announced purpose actually does match a constitutional motive as well. The key is that the courts should always engage in such an analysis.
Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.