Days before a historic clash at the Supreme Court concerning President Donald Trump’s bid to shield his financial documents, lawyers for both sides told the justices that the court has the ability to decide the core issues in the case, and it should not ultimately punt the resolution of the dispute to the political branches.
Last month, the Supreme Court asked the parties to file papers on the “political-question” doctrine, which holds that certain issues should be decided by the elected branches of government instead of the courts. The court’s request took some by surprise as neither the lower court judges nor the parties in the case have questioned whether federal courts can resolve the case.
The ask could indicate that at least some of the justices are looking for an off ramp so that they would never reach the weighty constitutional questions before the court.
If the Supreme Court were to hold that the doctrine applies, it would dismiss the case, sidestepping a momentous separation of powers dispute concerning the scope of Congress’ power to investigate the president.
In the case at hand, which is to be heard May 12, such a result would likely mean that the subpoenas to Trump’s accounting firm and banks would go forward, because the entities have said they would comply unless blocked by the courts. But in the long run, it would be a loss for Congress because that branch of government would not be able to enforce subpoenas to unwilling recipients.
In a letter filed with the Supreme Court Friday, William Consovoy, a lawyer for Trump, told the justices that they should reach the merits of the case.
“Federal courts may not decline to resolve a controversy within their traditional competence and proper jurisdiction simply because, as is the situation here, the question is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches,” he said.
Consovoy argued that if the justices were to sidestep the merits of the case, “it would be writing every congressional committee a blank check to subpoena any personal records it wants from any President any time it wishes simply by seeking those records from a custodian with no incentive to draw the ire of Congress,” he said.
Douglas N. Letter, general counsel to the House of Representatives, also argued that the court should not dismiss the case. “No aspect of the ‘political question doctrine’,” he said, “precludes the Court from reaching the merits of the questions.”
Lower courts have upheld the House’s use of committee subpoenas for Trump’s financial records dating back years from his longtime accounting firm, Mazars USA, from Deutsche Bank and Capital One.
House investigators contended they needed the information as the House was considering new legislation related to money laundering and government ethics.
Trump’s lawyers, who intervened to stop the subpoenas directed at Trump accountants and banks, reject the contention of a valid legislative purpose, arguing that if they were to lose the case, any committee could force presidents to relinquish information by claiming it was writing legislation.
Ashwin Phatak – a lawyer at the liberal Constitutional Accountability Center, who supports the House – said there is “no reason” the court couldn’t reach the merits of the dispute.
“Determining the propriety of a subpoena is a quintessentially judicial task that the court is well-equipped to undertake,” he said.
“The court should do its job, decide these cases on the merits, and, consistent with its past precedent, hold that the subpoenas for Trump’s financial records fall well within Congress’ investigative powers,” he said.