House and Trump agree: Supreme Court should settle subpoena dispute

Oral argument is set for Tuesday

Tourists take photos on the steps of the Supreme Court on March 13. (Bill Clark/CQ Roll Call file photo)
Tourists take photos on the steps of the Supreme Court on March 13. (Bill Clark/CQ Roll Call file photo)
Posted May 8, 2020 at 3:24pm

All sides told the Supreme Court on Friday that the justices should go ahead and settle the blockbuster dispute over congressional subpoenas for President Donald Trump’s financial records from an accounting firm and two banks.

Attorneys for the House, the Justice Department and Trump filed extra briefs that the Supreme Court ordered last week on this legal issue: Is the dispute better left for politicians than the courts under what is known as the “political question doctrine?”

The collective response: No.

But the House and Justice Department, sensing some hesitancy from the justices to step into such a politically contentious showdown between the political branches, did suggest some off-ramps for the high court to take.

House General Counsel Doug Letter wrote that if the Supreme Court “has concerns about deciding the merits of this particular dispute, there is a way out” short of ruling that the Supreme Court can’t decide the case.

The justices could dismiss the case “as improvidently granted,” which would leave in place the judgments of the courts of appeals.

The House, of course, won in those two lower courts. So that suggestion would mean the House could enforce its four subpoenas from three House committees for records from Mazars USA, Deutsche Bank and Capital One.

Solicitor General Noel Francisco had a different idea for the Supreme Court if it “may wish to decide these cases in a manner that avoids opining on the constitutional limits of congressional power to issue the subpoenas here.”

The Justice Department has argued that the House authorization of the subpoenas was insufficient because it was an “indiscriminate blessing of all past, current, and future investigations of the President by any committee, for any reason,” and the House did not adequately link the need for the information to legislation.

Under those circumstances, the court should “invalidate the subpoenas without opining on the constitutional limits of the House’s implied investigatory authority,” Francisco wrote.

Trump’s attorney told the court that there was no justification for abandoning more than a century of precedent about how courts can settle this type of question.

And to not rule in this case, Trump's attorneys wrote, would have “sweeping ramifications.” It would not only stop Trump from challenging these congressional subpoenas, but it would mean not even ordinary individuals, associations, and businesses—may judicially contest a congressional subpoena.”

Oral argument, held remotely on the telephone, is set in the case Tuesday.