On July 9, 2020, in Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, the Supreme Court held that the lower courts did not adequately consider the separation of powers concerns attendant to congressional subpoenas for presidential information. Given that the question presented in Mazars concerned whether Congress had a legitimate legislative purpose in subpoenaing the President’s personal records, the Supreme Court’s decision is anything but a model of clarity. The Court simultaneously opined that disputes “involving nonprivileged, private information” “do[ ] not implicate sensitive Executive Branch deliberations” while claiming “congressional subpoenas for the President’s information unavoidably pit the political branches against one another.” This essay presents a more precise framework for adjudicating interbranch disputes. By understanding Congress as it understands itself, this article draws a legal distinction between congressional investigations of the private sphere versus oversight of the Executive Branch. It analogizes Congress’s regulatory investigations to the sorts of quasi-judicial, quasi-legislative regulatory inquiries commonplace among federal agencies. Like regulatory inquiries by federal agencies, subpoenas for testimony and documents are enforceable against the private sphere. Oversight subpoenas, it is argued, are not enforceable precisely because oversight involves political questions inappropriate for judicial resolution. Just like in the administrative context, where regulatory inquiries must be purged of evidence of political taint, any regulatory inquiry from Congress must be likewise detached from its more politicized counterpart in the name of oversight. In this sense, the accommodation hinted in Chief Justice Roberts’ Mazars opinion can be properly understood as a requirement that Congress exhaust its political remedies before seeking private ones. As such, the analytic framework presented here makes the otherwise hard case of Mazars an easy case of identifying an improper attempt to conduct oversight in the facade of a regulatory inquiry, one tainted by prior political efforts and a prematurely clotured political process.
“Drive-by” Jurisdiction: Congressional Oversight in Court,
2020 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol2020/iss1/2