Impossible Sausage: Why Trump’s Approach in Mazars is Unworkable and Bad for Our Democracy

One hundred years or so ago, before the age of the corona, we cared a lot about whether a President, and perhaps particularly a “total” authority President, not only could ignore a congressional subpoena but affirmatively could enlist the judiciary to compel a third party also to ignore such a subpoena.  That’s what President Trump is doing now, in asking the Supreme Court to bar his banks and his accounting firm from complying with various congressional subpoenas.  Trump, et al. v. Mazars, et al., Nos. 19-715, 19-760 (S. Ct.).

Similarly, there also was a time when we cared a lot about a President’s effort to accomplish that goal not on grounds of privilege or some other legal nicety but simply on an assertion that the “primary purpose” of the congressional committee’s issuance of the subpoena was impure.  That too is what President Trump is doing now in the same case—he is asking the Supreme Court to bar others from complying with various congressional subpoenas not on grounds of any privilege but, instead, on his perception that the “primary purpose” of each of those committees in issuing each of the relevant subpoenas was, or is, improper.

We still should care.

For starters, the President’s effort to discern, and to discredit, the motives of the relevant committees is quixotic, at best.  Committees are things; they don’t have motives, much less primary ones.  Yes, they are made up of individuals—in fact, lots of them.  But that doesn’t solve the problem; it compounds it.  The Committees that issued the relevant subpoenas are the House Oversight Committee, with about 42 Members; the House Financial Services Committee with about 60 Members, and the House Intelligence Committee with another 22 Members.  A few Members overlap between those committees, for better or for worse.  And each of those Members, being human, is complicated.  Each likely harbored, and still harbors, a slew of motives regarding the relevant subpoenas.  More than forty percent of those Members are Republicans, at least some of whom presumably opposed the issuance of the subpoenas; what do you do about their motives?  What about the handful of back-benchers who may be all but blissfully ignorant of the subpoenas at issue?  Do you focus, then, only on the three Chairs of the relevant committees?  And, if so, how do you know the purposes imagined by each of those Chairs, at each of the relevant times (whatever those times may be:  at authorization of the subpoena?  issuance of the subpoena?  service?  suit by the President?  now?).  And, finally, once you’ve figured all of that, how do you measure, filter, and sift such that you’re left only with the relevant “primary purpose” for each subpoena?  The President has no clear answers to these questions; there are none.

(And that’s even if you could stomach the thought of such a journey through the sausage-making:  For good reason, the judiciary generally has declined any such adventure.  See, e.g., Barenblatt v. United States, 360 U.S. 109, 132 (1959) (“So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”)).

Second, even were one able to discern the primary purpose of a congressional committee, what purposes would pass muster?  The President suggests that the relevant purpose must be in aid of legislation.  Congress quintessentially legislates, or tries to anyway.  U.S. Const. art. I, §§ 1, 8.  But the Constitution assigns Congress, and its respective Houses, a number of additional responsibilities:  Appropriating funds, or declining to do so.  Id., art. I, § 9, cl. 7.  Organizing the proceedings of each House, including in delegating each House’s authority amongst any committees that it may establish.  Id., art. I, § 5, cl. 2.  Judging the election of the Members of each House.  Id. art. I, § 5, cl. 1.  Policing the ethics and general behavior of those Members.  Id., art. I, § 5, cl. 2.  And the impeachment of certain officials outside of the Legislative Branch, as we’ve recently been reminded, id. art. I, §§ 2-3; art. II, § 4, all to name just a few.  It would seem, then, that an effort plausibly in support of any of these functions would qualify as an appropriate purpose.

But the above objections may be mere quibbles.  Perhaps the President’s objection to the subpoenas is merely clumsy, messy, and/or imprecise.  Why, again, should we muster the stamina to care, even as we are running low on toilet paper, medical supplies, and other stuff?

We should care because we live in a democracy, a democracy born of a great distrust of aggregations of power.  A democracy built on checks and balances.  A democracy in which we should not lightly invalidate the actions of our elected representatives, and particularly not those of the institution closest to the People—the House of Representatives, the entire membership of which is up for election every two years.  And we certainly should not do so on the inherently subjective and unknowable charge that a committee of that body is acting for an improper purpose.  Rather, above nearly all else, we should let democracy function.

That, in fact, is the lessen of McGrain v. Daugherty, 273 U.S. 135 (1927), a Supreme Court decision—from nearly one hundred years ago—that largely if not completely resolves the President’s current challenge to Congress’s subpoenas.  In McGrain, the Court considered a congressional investigation laser-focused on the possible misconduct of one individual, the then-recently-resigned U.S. Attorney General, Harry M. Daugherty.  A third-party subpoena recipient in that investigation (a family member of General Daugherty) sought to ignore his congressional subpoena, insisting that the “object” of the relevant investigation was improper.  The Supreme Court unanimously rejected that argument:  According to the Court, all that mattered then—and so presumably all that matters now—is that the demanded information materially inform a subject “on which legislation could be had.”  There is no inquiry into the actual purpose of the particular subpoena or investigation; it’s an objective, not subjective, test.  Indeed, the Court emphasized that it had no appetite for the sausage-making:  “The contention is earnestly made . . . that this power of inquiry, if sustained, may be abusively and oppressively exerted.  If this be so, it affords no ground for denying the power.  The same contention might be directed against the power to legislate, and of course would be unavailing.”

The “on which legislation could be had” inquiry resolves the dispute here, and it does so without any unseemly, fraught, and ultimately impossible inquiry into the actual supposed purpose—primary or otherwise—of the relevant committees.  And, most fundamentally, it respects the checks and balances that are the hallmarks of our democracy.

Between 2011 and 2016, William Pittard served in the Office of the General Counsel for the U.S. House of Representatives, primarily as the Deputy General Counsel and briefly as the Acting General Counsel.  He recently co-authored an amicus brief in the Mazurs case, on behalf of two organizations devoted to advancing bipartisan governance and oversight.

April 15, 2020