The Supreme Court is set to hear three cases about demands for Donald Trump’s financial records. None of them expressly concern impeachment; yet these cases may play a major role in determining whether courts will countenance the president acting without accountability to the Constitution or laws of the nation.
And that, at bottom, is what the impeachment of Donald Trump is all about.
Two of the cases concern subpoenas Congress issued to Trump’s accountants, Mazars USA, and his banks for tax returns and other financial information, initially as part of its normal course of legislative oversight functions. As two appellate courts stated, they are not close cases, because the Supreme Court has long recognized that Congress possesses broad authority to investigate potential misconduct—including presidential misconduct—as a necessary part of considering potential legislative remedies.
The third case also concerns a subpoena to Trump’s accountants, but this one by the Manhattan district attorney’s office, which is an conducting an investigation into whether Trump’s pre-election hush money pay-offs to former sexual partners through flunky Michael Cohen violated New York tax laws.
Meanwhile, Trump has asserted that not only he, but also his associated companies, family members and acolytes, cannot even be investigated for potential crimes while the president remains in office. The appellate court majority rejected that argument, noting that the Supreme Court had enforced a criminal subpoena for the White House tapes against Nixon during Watergate.
The very meritlessness of these cases renders the Supreme Court’s choice to accept them, and thereby place road blocks upon ongoing congressional and law enforcement proceedings, gravely concerning; and the court’s action will certainly be read by Trump as an encouragement of his stonewalling of Congress’ impeachment inquiries, regardless of the ultimate outcome.
And it is more than likely that critical legal issues surrounding impeachment will come to the fore as the congressional subpoena cases are argued, despite the fact that they arose before Congress even considered seeking to remove the president.
In the Mazars case, former Trump official Neomi Rao, who assumed Brett Kavanaugh’s seat on the D.C. Circuit Court of Appeals, dissented from the ruling in Congress’ favor. Her claim was that Congress cannot investigate potential misconduct by a president as part of its “legislative” function, and instead must commence an impeachment investigation and issue its demand pursuant thereto.
Coincidentally, Judge Rao is also hearing a case about just such an “impeachment” subpoena: Congress’s demand for certain grand jury evidence assembled by Robert Mueller’s team, which Attorney General William Barr and the Justice Department have withheld, which a trial court granted.
During a recent argument regarding whether to grant a further stay in the case (the court did), Rao suggested that courts might properly refuse to order the enforcement of congressional demands for documents and testimony in the midst of impeachment investigations, and allow the president to defy even wholly lawful congressional subpoenas.
Rao argued that courts might properly avoid becoming involved in such disputes, because impeachment is a matter assigned to Congress, not the judiciary. The claim is remarkably facile, since the issue of whether a president has to turn over evidence to Congress is fundamentally distinct from that of whether such evidence should lead to impeachment by the House, or removal by the Senate, based upon that evidence.
Notably, the DOJ did not make such an argument to the court; but it was of a piece with a broader position that Barr had advocated days before, during a speech before the conservative Federalist Society: that courts should simply decline to decide “interbranch disputes.”
If, as Judge Rao contends, impeachment subpoenas are the only way for Congress to demand evidence of presidential illegality, and yet courts will not take any action to enforce such subpoenas, Congress’ only recourse would be to employ its so-called “inherent” contempt authority.
Under that scenario, Congress’ own sergeant at arms or other personnel would be charged with seeking out and arresting members of the executive branch, such as Secretary of State Mike Pompeo, acting Chief of Staff Mick Mulvaney (and possibly the president himself), and holding them in confinement until they complied with their disclosure obligations.
That may sound absurd, but it could become curiously plausible in the face of Barr’s proposal that courts opt out from holding a president to account for defiance of the Constitution and law. Last week, Rao and her fellow judges asked for further briefing in the grand jury case, this time regarding whether Congress has “standing,” meaning whether it should be able to petition the courts at all, suggesting that Judge Rao’s musings about following Barr’s extremist position (which seemed to garner some sympathy from one of her colleagues during the recent argument) may be taking hold.
That brings us back to the several putatively non-impeachment cases the Supreme Court has agreed to decide. Congress argues that, because it has now commenced an impeachment investigation, the court should address the scope of its impeachment investigatory power. If the court agrees to do so, as it should, then the Supreme Court will expressly decide whether to take up Barr’s call and determine if the federal courts should simply absent themselves leaving it to Congress and Trump to work out their dispute over whether the president can stonewall any and all congressional demands for information regarding potential presidential misconduct.
If the end result is a literal war among the branches, well, no one will be able to say it was unanticipated.