Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Supreme Court appears to be less deferential to Congress when Congress uses its investigatory powers to examine activities of the President. In Trump v. Mazars,1 President Donald Trump brought suit in his personal capacity to block his banks and accounting firm from complying with various committee subpoenas for his personal financial records primarily on the ground that the committees had no valid legislative purpose to seek his personal financial information.2 Applying the deferential legislative purpose standard used by the Court in cases like McGrain and Barenblatt, the opinions below upheld the committee subpoenas.3 On appeal to the Supreme Court, Mazars presented the Court with its first opportunity to directly consider the authority of Congress to investigate the President.4

The Court’s opinion in Mazars established that the Constitution does not make Presidents immune from investigation,5 but it also clarified that, in the context of congressional investigations, the separation of powers requires that the President be treated somewhat differently from others.6 The opinion described the courts below as having mistakenly “treated [this case] much like any other,” applying standards and principles established in “precedents that do not involve the President’s papers.” 7 Subpoenas for the President’s personal records, the Court determined, involve significant separation of powers concerns that trigger a different, more scrutinizing approach to the scope of Congress’s power. But the Court also rejected as inappropriate invitations to import the heightened “demonstrated, specific need” or “demonstrably critical” standards that had been used in prior cases involving Executive privilege—a privilege not at issue in Mazars due to the personal nature of the documents sought.8 Instead, Chief Justice John Roberts’s opinion for the Court charted a middle course by identifying at least four “special considerations” to help lower courts to appropriately balance the “legislative interests of Congress” with “the ‘unique position’ of the President.” 9

First, a reviewing court should “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.” 10 Second, courts “should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” 11 Third, “courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.” 12 Fourth, “courts should be careful to assess the burdens imposed on the President by a subpoena.” 13

Mazars' “special considerations” were tailored to Presidential records. To view the case otherwise—for example, to apply the “special considerations” to congressional subpoenas issued as part of a more typical oversight investigation into agency activity—would put the opinion in tension with previous precedent, including the principles established in McGrain.14 Nothing in the Mazars opinion appears to signal that the majority intended to alter previously established principles in congressional investigations not involving the President.

Conspicuously absent from the Court’s oversight jurisprudence is any evaluation of Executive privilege. Despite the sometimes prevalent role played by executive privilege in congressional investigations of the Executive Branch, the Court has never issued an opinion addressing such a dispute.15 Even the lower federal courts have only rarely taken on interbranch oversight disputes involving Executive privilege.16 Recent changes in Congress’s approach to the enforcement of its own investigatory powers, however, suggest that the traditionally limited judicial role in interbranch oversight disputes—including those involving Executive privilege—may be evolving. In recent years, the House has increasingly relied on the courts as a means to enforce committee subpoenas issued to members of the Executive Branch.17 In these instances, committees have obtained authorization from the House to file a civil claim in federal court, seeking a court order directing compliance with a committee subpoena.18 Although these subpoena enforcement cases have not reached the Supreme Court, lower federal courts, including the U.S. Court of Appeals for the D.C. Circuit have generally found these claims to be justiciable.19 As a result, the Judiciary’s role in resolving information access disputes between Congress and the Executive Branch may become more significant.

Footnotes

1

140 S. Ct. 2019 (2020).

2

The challenged subpoenas were issued as part of different ongoing committee investigations. See generally, Todd Garvey, Cong. Rsch. Serv., LSB10517, Trump v. Mazars: Implications for Congressional Oversight (2020), https://crsreports.congress.gov/product/pdf/LSB/LSB10517.

3

Mazars, 140 S. Ct. at 2028–29.

4

Although the case was technically brought by President Trump in his private rather than official capacity, the Court chose to treat the conflict as one between the branches. Mazars, 140 S. Ct. at 2028, 2034 ( “The interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity.” ).

5

Id. at 2033 ( “Legislative inquiries might involve the President in appropriate cases; as noted, Congress’s responsibilities extend to ‘every affair of government.’” ).

6

Id. at 2026. See also, United States v. Burr, 25 F. Cas. 30, 192 (CC Va. 1807) (No. 14,692d) (noting that the court would not “proceed against the president as against an ordinary individual” ). The Mazars opinion also treated a congressional investigation as “different” from a “judicial proceeding.” Mazars, 140 S. Ct. at 2026.

7

Mazars, 140 S. Ct. at 2033.

8

Id. at 2032. ( “We disagree that these demanding standards apply here. . . . We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.” ). The Court also rejected the House’s proposed approach, which it characterized as failing to “take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information.” Id. at 2033.

9

Id. at 2035.

10

The Court elaborated that Congress’s “interests are not sufficiently powerful to justify access to the President’s personal papers when other sources could provide Congress the information it needs.” Id. at 2036.

11

Specific demands, the High Court reasoned, are less likely to “intrude” on the operation of the Presidency. Id.

12

To this end, Congress’s position is strengthened when a congressional committee can provide “detailed and substantial evidence” of its legislative purpose. Id.

13

Here the Court reasoned that in comparison to the burdens imposed by judicial subpoenas, the burdens imposed on the President by congressional subpoenas “should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.” Id.

14

McGrain, 273 U.S. at 178 ( “The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating; and we think the subject-matter was such that the presumption should be indulged that this was the real object.” ).

15

United States v. Nixon, the Court’s most significant decision on Executive privilege, involved a criminal trial subpoena. 418 U.S. 683, 687–88 (1974). The Court explicitly disclaimed any attempt to assess the application of Executive privilege in a congressional investigation, noting that “we are not here concerned with the balance between the President’s generalized interest in confidentiality . . . and congressional demands for information.” Id. at 712 n. 19.

16

See, e.g., Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F. 2d 725, 729–33 (D.C. Cir. 1974) (evaluating President Nixon’s Executive privilege claims in the face of a congressional subpoena) and United States v. AT&T, 567 F. 2d 121, 130–133 (D.C. Cir. 1977) (entertaining an action by the Justice Department to enjoin AT&T from complying with a congressional subpoena to provide telephone records that might compromise national security matters); Comm. on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112–14 (D.D.C. 2016) (finding that a congressional Committees need for deliberative materials outweighed the Executive Branch’s interest in confidentiality).

17

See Civil Enforcement of Congressional Authorities: Hearing before the H. Comm. on the Judiciary, Subcomm. on Courts, Intellectual Property, and the Internet, 117th Cong., (2021) (statement of Todd Garvey) (describing House subpoena enforcement lawsuits).

18

Id.

19

See, e.g., Comm. on the Judiciary v. McGahn, 968 F.3d 755, 760–61 (D.C. Cir. 2020); Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 3 (D.D.C. 2013) ( “The fact that this case arises out of a dispute between two branches of government does not make it non-justiciable . . . .” ); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 56, 65–99 (D.D.C. 2008).