President Trump is on the hunt for one very particular sort of immunity — from scrutiny or accountability — and only the Supreme Court can give it to him.
He doesn’t want anyone to see his financial records, and toward that end, his lawyers have argued that he is immune from investigation by Congress or prosecutors, who have issued subpoenas to Trump’s bank and accountants to get those records.
In three cases being argued by phone on Tuesday, the justices will dial in and deal with a series of assertions by Trump that amount to the most expansive claims of presidential power made in half a century. These extreme positions come in tandem with a highly restrictive vision of Congress’s role. How the Court rules now could reshape the constitutional balance of powers for decades, potentially dealing a serious blow to Congress’s ability to act as a check on the executive branch. The last time there was a showdown at this level, during the Watergate scandal, President Nixon came out on the losing side.
Adding another twist to the separation of powers issues, in late April, the Supreme Court asked the parties to submit briefs whether it should just step back from adjudicating the dispute and let Congress and the president duke it out because it is a “political question.” So it appears, at least some Justices are thinking of washing their hands of playing a role mediating disputes between the other two branches of government.
The cases are Trump v. Vance, Trump v. Mazars USA, and Trump v. Deutsche Bank AG, which deal with a set of subpoenas for critical information about Trump’s financial dealings. In the late summer of 2019, Manhattan District Attorney Cyrus Vance Jr. issued a demand that Trump’s accounting firm, Mazars USA, produce records dealing with the president’s finances, including his tax returns. The Vance subpoena was preceded in the spring by requests from several House committees for almost the same information from Mazars, as well as another subpoena issued to one of the president’s banks, Deutsche Bank.
Although Trump was not personally subject to any of the demands, his personal attorneys filed lawsuits seeking to block them. And the Justice Department has weighed in on Trump’s side as a friend-of-the-court.
Both Vance and the House were investigating a swirl of potential improprieties involving taxes, campaign finance, and financial fraud with a view either to prosecute, inform lawmaking, or conduct oversight of the executive branch.
These cases represent a legal high-water mark in a three-year course of Trumpian resistance to accountability or transparency. The Vance case, after all, featured the president’s personal lawyer telling the Second Circuit Court of Appeals in October that Trump could shoot someone on Fifth Avenue and not be prosecuted or investigated as long as he is in office. Perhaps we should be grateful that Trump is dressing up the argument in higher toned language in his brief regarding the Vance subpoena before the Supreme Court: “The President is absolutely immune from state criminal process while in office.”
As for Mazars and Deutsche Bank, involving the congressional subpoenas, the president’s argument amounts to a wholesale attack on legislative branch power: “The authority of Congress to issue subpoenas, enforceable through contempt, has been controversial from the beginning.”
More particularly, the president is asking the Supreme Court to narrowly define what constitute the legitimate tasks of Congress and to limit the tools it has to do its job. This comes on top of his earlier disdain for the legislative process with his blanket refusal to comply with congressional subpoenas during the House’s impeachment inquiry and more.
All of these arguments are wrongheaded and dangerous. They are predicated on the slenderest of legal authority and an anti-historic reading of Congress’s role.
Members of Congress and those who care about the institution are often fond of pointing out that it is the first branch of government in the Constitution. And if they care to point to a particular founding document that outlines the legislature’s role, it is often Federalist No. 51 by James Madison. But anyone reading that document today probably would be shocked by its assumption that the legislature would be the most powerful branch — “the legislative authority necessarily predominates” — and that the executive would be the weakest.
Today’s Congress seems shockingly weak compared to the executive. The reversal of institutional fortunes from the founding era largely has been the result of congressional action — or the lack of it — rather than court cases, although there certainly have been cases pushing back at Congress in interbranch conflicts.
But by and large, Congress itself is responsible for its sinking prestige and power. It has underfunded itself for decades and let its institutional capacities atrophy. It intentionally starves itself of money and resources, inhibiting its ability to hire top talent and encouraging rapid staff turnover. Consider, for example: Congress has a grand total of 133 staffers charged with overseeing the same issues that the Department of Homeland Security employs 250,000 people for.
And too often Congress has asserted its powers inconsistently or in hyper-partisan mode rather than systematically. Or it has affirmatively handed power over to the executive branch, as it did, for example, when it passed an authorization for the president’s use of military force in the wake of the 9/11 attacks — a grant of power that is still in force almost two decades later in situations far afield of what Congress initially envisioned. In still other instances, Congress has more carefully avoided fully flexing its power and instead has negotiated its conflicts with the presidency and sought compromise.
Now, the Supreme Court is poised to drive another nail in the coffin of legislative power. If the president’s arguments are adopted by the Supreme Court in Mazars, it would significantly undermine Congress’s ability to conduct oversight and gather information about how the laws are executed. It would also make it hard for Congress to gauge for itself threats to our national security and inform itself about substantial challenges to the way our democracy functions. (Or in Vance, the Court could just give the president the go ahead to get away with blatant criminal acts while in office).
It’s always possible that Congress could heal from its self-inflicted wounds. Indeed, there is a growing bipartisan movement to reform Congress. But a Supreme Court ruling for Trump would be hard to recover from.
The views expressed are the author’s own and not necessarily those of the Brennan Center.