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Moshiuzzaman holds a 2:1 LL.B degree from BPP University (UK). He is currently pursuing the CFA chartership and working as an independent legal researcher at the American Society of International Law (ASIL)

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The Supreme Court of the United States, recently, held that the Courts must consider the Doctrine of Separation of Powers while resolving disputes over congressional subpoenas seeking access to personal information of the President.

Brief Background of the Case

In February 2019, Michael Cohen, attorney to President Trump testified before the House Committee on Oversight and Reform that the President (in his capacity as a private citizen) changed the estimate values of his assets and liabilities on financial statements prepared by his accounting firm, Mazars, USA, LLP. The House also heard testimony that the President, Trump may have withheld some financial holdings, which under the Ethics in Government Act of 1978, are mandatory to be disclosed.

In April 2019, the U.S. House of Representatives issued four subpoenas concerning President Trump’s financial records. The House Committee on Financial Services issued two subpoenas, one against Deutsche Bank (DB) for the suspicious activity it identified concerning foreign transactions, business statements, and debt schedules; and two, against Capital One Finance Corp, on similar grounds. The House Permanent Select Committee on Intelligence also issued a subpoena to DB. Finally, the House Committee on Oversight and Reform subpoenaed Mazars, USA, LLP.

Trump’s family and their businesses sought to block these subpoenas in different states that gave rise to distinct cases. The oversight committee’s subpoena in the U.S. District Court for the District of Columbia became known as Trump v. Mazars and the Financial Services and Intelligences committees in the Southern District of New York came to be known as Trump v. Deutsche Bank. In both cases, the President argued that Congress lacked a “legitimate legislative purpose” for issuing the subpoenas.

In the Mazars case, the District Court ruled in favour of the House on the ground that tax returns “served a valid legislative purpose” as it relates to legislation addressing financial disclosure requirements for presidential candidates and sitting presidents. On appeal, the D.C. Circuit also affirmed this ruling. In the Deutsche Bank case, both the District Court as well as the Second Circuit also upheld the subpoenas on the basis that they were sufficiently related to the legislation being reviewed by the committees concerning national security, terrorism, and money laundering. The Supreme Court consolidated both these cases together.

The Supreme Court’s Decision

In a 7-2 judgment, the Supreme Court of the United States vacated the Circuit Court’s decision on the basis that the lower Courts had not correctly assessed the doctrine of separation of powers that governed the relationship between Congress and the President. Also, the Court remanded the case for review with a set of considerations to evaluate the worthiness of the aforementioned subpoenas.

The Majority Decision and Analysis

Chief Justice John Roberts writing the majority decision joined by all except Justices Clarence Thomas and Samuel Alito, stated that the Circuit Court had not taken into full consideration, the doctrine of separations in their decision, arguing that neither the Congressional nor Presidential arguments presented were “wholly sound”.

On the outset, John Roberts began by pointing the dispute in question was a “significant departure from historical practice.” He stated that from the Washington administration to the present, disputes of this nature were always settled outside of the Court and that it was an established practice for the court not to intervene when it came to the dispute resolution mechanisms between the two organs of the state.

The Chief Justice analyses the case based on a body of case law accounting for authority for Congress to subpoena records. He noted that each Chamber of Congress had implied constitutional authority to conduct investigations and issue subpoenas, and in that their powers are “broad [and] indispensable” but not without limits. The basis for issuing subpoenas has to be for a “legitimate legislative purpose”.  He re-stated the limits of Congressional subpoenas – it cannot be used for the “law enforcement” purpose; or, for “exposure for the sake of exposure” or to merely penalize those investigated. Moreover, Congresses’ oversight and investigative powers are limited by the Constitution, the common law, and constitutional privileges. These are inclusive of attorney-client privilege and executive privileges.

John Roberts further outlines the existing test – “[the] demanding standards” laid out in the United States v. Nixon – a case relating to the watergate tapes, in which President Nixon failed to establish executive privilege. He reasoned that there is an ambiguous line that segregates the Office of the President and its occupant, and therefore, requests for personal information may trigger a possible tenuous connection to a legislative purpose heightening the risk of congressional abuse. Stating that both the Congress and the President failed to take notice of the Doctrine of Separation of Powers, the Chief Justice penned a four-factor test for evaluating the validity of congressional subpoenas.

Firstly, the Courts should consider the availability of “other sources [that] could reasonably provide Congress the [sought] information”. Secondly, the subpoenas must not exceed Congress’s legislative objective. Thirdly, Congress has to “adequately explain[n]” why the President’s information will advance its considerations of the possible legislation.” Finally, the Courts “should carefully [consider] the burdens imposed on the President by a subpoena”. On this basis, Roberts vacates the judgments of Mazars and Deutsche Bank and remands the matter for further review.

The Dissenting Judgment

In a dissenting judgment, Justice Thomas, with whom Justice Alito admirable agreed, rejected the entire premise of Congress to issue a subpoena seeking personal records. He reasoned that the only way Congress could obtain these documents would be through formal investigations under the Congress’ impeachment powers. Quoting the landmark case of Marbury v. Madison, the Justice argues Congress should not mistake or forget it’s authority as provided under the Constitution. He strongly argues that the Founders had not reserved any “implied” powers to Congress to subpoena personal records. Rebuffing strongly against Congress’ argument, that it enjoys the same investigative authority as did the British Parliament at the time of the formation of the United States, the Justice pens “Parliament was supreme. Congress is not”.

Similarly, Justice Alito also dissents but rejects the argument that Congress does not have any authority to subpoena personal records. Instead, he argues that should Congress choose to subpoena personal records outside the jurisdiction of its impeachment powers, they have to be held at a higher standard. Although he agrees with the majority that the case should be remanded, he argues that Congress should provide more descriptive information as to why and how the personal records would assist in achieving its legislative objective.

Concluding Remarks

The decision of the Supreme Court comes at a time when the president was already struggling in launching his bid against Joe Biden for the U.S. Presidential Elections due in November 2020. With President Trump striking a peace accord between the United Arab Emirates and Israel in mid-August, the decision of the Supreme Court reinforces more delay and opportunity for cover-ups as President Trump heads to polls.


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