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The Supreme Court Eyes an Escape Hatch From Trump’s Corruption

Faced with having to choose between the president and Congress, the justices want to permanently abdicate their role as adjudicators.

Leah Millis/Getty Images

The Supreme Court will hear oral arguments next month in perhaps its highest-profile set of cases this term: whether the House Judiciary Committee and Manhattan’s district attorney can lawfully subpoena President Donald Trump’s financial records. The two cases, Trump v. Mazars and Trump v. Vance, could be a watershed moment for how the executive branch—and whosoever oversees it—defends itself against future scrutiny from congressional committees and state grand juries alike.

Some of the justices, however, may be looking for a way out. In its Monday batch of orders, the court asked the parties in both cases to file supplemental briefs “addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” The request came without prompting from any of the litigants. It suggests that some of the justices might be willing to rule that the Supreme Court should let the dispute be resolved by the elected branches of government instead.

Such an outcome may bode poorly for Trump himself. House lawmakers and the Manhattan district attorney’s office subpoenaed records from multiple entities over which the president has no direct control, including Deutsche Bank, with which he has a long-standing financial relationship, and Mazars, which provides accounting services for the Trump Organization. They and other third parties may be willing to comply with subpoenas even without judicial intervention. At the same time, finding that congressional subpoenas are nonjusticiable would be a major long-term boon for future presidents who might chafe at oversight.

The bland-sounding political question doctrine cuts to the core of the federal judiciary’s power: whether it can hear (or not hear) certain cases. The Constitution outlines certain types of cases that the federal courts must (or must not) hear; it also gives Congress the power to define what categories of cases the courts can (or cannot) hear. When the Supreme Court invokes the political question doctrine, however, the court itself decides what types of cases it should (or should not) hear—or, in the court’s parlance, whether a matter is justiciable or nonjusticiable.

When invoked, the doctrine can have far-reaching consequences beyond the case at hand. In 1849, for instance, the Supreme Court refused to decide whether Rhode Island’s restrictive electoral franchise had run afoul of the Constitution’s Guarantee Clause, which requires the national government to ensure that each state maintains a “republican form of government.” That ruling gave Congress free rein, two decades later, to rebuild Southern state governments after the Civil War, though the high court later hamstrung Reconstruction’s potential in other ways.

Not everything that falls under the doctrine is remarkable or surprising. The courts are rarely eager to second-guess the president on military or foreign policy matters, for instance, and the Supreme Court has resisted overstepping Congress when it comes to ratifying constitutional amendments or holding impeachment trials. But some abstentions can be controversial. The justices generally refused to involve themselves with legislative redistricting until the 1963 decision in Baker v. Carr, one of the most consequential rulings of the Warren court era. Last year, a sharply divided court ruled in Rucho v. Common Cause that federal courts could not hear challenges to partisan gerrymandering because they fell “outside the courts’ competence and therefore beyond the courts’ jurisdiction.”

It’s not clear why the justices asked for supplemental briefs on the matter in this case. None of the parties, including Trump himself or the Justice Department, had suggested that the dispute might be nonjusticiable in their briefs for the court. The only assertion before it, instead, came from a friend-of-the-court brief filed by the Eagle Forum Education and Legal Defense Fund, which is part of the political organization founded by conservative activist Phyllis Schlafly. Its brief largely adopts Trump’s framing of the subpoenas, noting that the “opposition political party” has “pursued him with all imaginable means short of formally declaring war.”

In its filing, Eagle Forum focused less on the legal and constitutional questions involved than on securing its preferred outcome, which is one that would be politically beneficial to the president. “Given the divisive nature of the Committees’ vendettas against President Trump, amicus EFELDF respectfully submits that a unanimous decision on a narrow procedural ground would be better for the Nation than a close decision on substantive authority,” the organization told the court. While this approach isn’t unheard of among groups that file friend-of-the-court briefs in major cases, the Eagle Forum is remarkably free of guile or subtlety about it.

Most of its brief reiterates the points made by Trump and his allies in the case, albeit in more overtly political terms. One option, the group says, would be to nix the House subpoenas because they weren’t explicitly authorized by the House as a whole or by the chamber’s rules. Eagle Forum touts this option because, in its view, the court would be able to avoid directly ruling in the president’s favor while still handing him a political victory and potentially undermining his opponents.

“If either of those events were to occur, perhaps avoidance of the subpoenas’ merits now would merely waste time,” the group wrote. “But it is also possible that the entire House would not back efforts to expand the scope of the Committees’ powers with an election so close and the number of the House majority’s votes that come from districts more favorable to the President than the Committee chairs’ districts. In other words, a mere temporary setback for the Committees could prove permanent, thereby avoiding the difficult questions presented here.”

When it came to laying out an affirmative case for the political-action doctrine in these cases, Eagle Forum fell back on empty platitudes. “The political branches can resolve these squabbles without courts’ involvement in most instances,” it told the court. “If the stakes are high enough, Congress has the power of the purse, and the President has the veto power.” This formulation fails to consider that a president might prioritize his personal fate above all other concerns and thus brush aside any legislative inquiries into his wrongdoing altogether. Though it feels like a lifetime ago, it’s only been a few months since the Justice Department told the federal courts that Congress could only enforce House subpoenas through impeachment, while Trump’s personal lawyers simultaneously told the Senate that it couldn’t convict Trump for ignoring a subpoena that wasn’t enforced by the courts.

More ominously, the organization also told the court that unless it disclaims the matter, conservatives will force the court to revisit it again and again if Trump loses in November. “For example, in the near term, it is entirely possible that former Vice President Biden could win the 2020 election with the Republicans either holding or taking one or both houses of Congress in either 2020 or 2022,” it said in its brief. “With House inquiries into the alleged financial crimes of Mr. Biden’s family as little as two years off, this Court should opt out of this process now. Whether in 2022 or at any time in our further future, precedent established here to allow intrusive—and purely political—subpoenas will weaken the Nation.”

The court’s request for briefs, by itself, does not indicate how the justices will eventually rule. What makes the matter so striking isn’t how it would affect any one president in these cases—or even the outcome in this particular case—but how it would affect the balance of powers between Congress and the White House altogether. It’s true that presidents and lawmakers have long engaged in back-and-forth negotiations over sensitive requests for documents and witnesses. But those discussions also took place under the assumption that they could simply fight it out in the courts if those negotiations failed.

Without that sword of Damocles hanging over them, future presidents may show little interest in taking Congress’s oversight powers seriously, especially when the investigations cut too close to their personal and political interests. That state of affairs would benefit the corrupt and the malicious when they attain high office, the Supreme Court justices who would be relieved of the burden of doing something about it, and no one else.