Will the Supreme Court Thwart Congressional Investigations?

Come January, a Congress newly dominated by Democrats will launch vigorous investigations of the Trump administration and its allies.

Lawmakers will face a target-rich environment, one that includes crypto deals, pardons, extrajudicial killings on the high seas, a Justice Department-led retribution campaign against the president’s political opponents, and the gift of a Qatari jet.

But they will also face hurdles and roadblocks — erected by the Supreme Court.

In the court’s 2024 decision granting President Trump substantial immunity from prosecution, Chief Justice John Roberts indicated that some subjects may be entirely off limits to congressional investigators.

“Congress cannot act on, and courts cannot examine, the president’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority,” the chief justice wrote. Those subjects included issuing pardons, firing subordinates and deciding “which crimes to investigate and prosecute.”

The immunity decision “has quietly weakened Congress’s ability to conduct legislative oversight over the executive branch,” David Manners-Weber wrote on the Lawfare blog just before the midterm elections.

Does Congress Have Standing to Sue?

Whatever the subjects of congressional investigations, the administration is unlikely to give Congress documents or let officials testify, a clash that could lead to lawsuits. And it is not at all clear that the Supreme Court would be willing to mediate those disputes, or if the justices would side with the Democratic Congress if it does.

Perhaps surprisingly, the court has never definitively resolved a basic question: Can Congress sue the executive branch?

In 2015, Justice Ruth Bader Ginsburg noted in passing that “whether Congress has standing to bring a suit against the president” was an open question. “A suit between Congress and the president,” she observed, “would raise separation-of-powers concerns.”

Lower courts have been more receptive to suits from legislators.

In a pair of decisions in 2020, in the waning days of the first Trump administration, the D.C. Circuit ruled that lawsuits could proceed despite objections to the lawmakers’ standing.

In one decision, the court said that the House Judiciary Committee, then led by Democrats, had standing to sue Don McGahn, a former White House counsel, to compel him to testify. In the other, the court allowed the full House of Representatives to sue over Trump’s use of emergency powers to spend more public funds on a border wall than Congress had appropriated.

McGahn and the committee settled their dispute following some additional twists and turns. After the 2020 election, the Biden administration stopped building the border wall, then asked the Supreme Court to wipe out the appeals court’s decision.

The Biden administration, aware of political pendulum swings, sided with the Trump administration and argued that the House alone should not be allowed to sue the president.

Elizabeth Prelogar, the solicitor general under President Joe Biden, told the justices that letting the House sue “would inject the federal courts into fundamentally political disputes and upset the balance of power between the political branches.”

The Supreme Court granted the Biden administration’s petition and vacated the D.C. Circuit’s decision as moot. The court’s brief order said nothing about whether Congress, or parts of it, had standing to sue the executive branch.

I asked Payvand Ahdout, a law professor at the University of Virginia and an authority on inter-branch litigation, for an overview of the likely litigation.

“I largely agree that there are many roadblocks to courts rendering decisions on the merits in any of these cases,” she said in an email. “And even if Congress can overcome those roadblocks, courts frequently engage in avoidance techniques to keep from ordering a coordinate branch of government to take action.”

But she added that “the judiciary is not a monolith” and “we may see some cases where Congress finds an ally in the lower courts that moves the needle for investigations and oversight.”

Subpoenas to Private Parties

So far I’ve been discussing clashes between Congress and the executive branch. Lawmakers will probably find it easier to obtain information from private parties like Elon Musk, or the law firms that settled with the administration after threats that they and their clients could lose government contracts.

But even in those kinds of cases, the court has imposed limits on the authority of lawmakers. In 2020, in Trump v. Mazars, the court considered congressional subpoenas seeking Trump’s tax and business records from accounting and financial institutions with which he had done business. Trump sued to block the release of the records.

Returning the case to a lower court for further analysis, Chief Justice Roberts stressed that lawmakers needed “a valid legislative purpose” for seeking the records.

“Congress may not issue a subpoena for the purpose of ‘law enforcement,’” he wrote, quoting , “because ‘those powers are assigned under our Constitution to the executive and the judiciary.’”

The ruling was not particularly clear about where to draw the line between the two. In general, the chief justice seemed to prefer accommodation over litigation.

“Historically, disputes over congressional demands for presidential documents have not ended up in court,” he wrote. “Instead, they have been hashed out in the ‘hurly-burly, the give-and-take of the political process between the legislative and the executive.’”

That is, he urged the parties to work out their differences and leave the courts out of it.

The quotation supporting that approach was part of 1975 testimony from a Justice Department lawyer before a Senate committee. The lawyer was Antonin Scalia, who would join the Supreme Court about a decade later.

In the Trump era, the give-and-take Scalia called for seems to have vanished.

The administration has, for instance, taken an extraordinarily broad view of executive privilege, saying it extends to the president’s discussions with people outside the government.

In August, the Office of Legal Counsel, the unit of the Justice Department that advises the executive branch on the law, issued a memorandum making the case for a vast expansion of the scope of executive privilege. It relied heavily on the Mazars decision from 2020, citing it eight times.

Other Legal News

Mailbag

A Term-Limits Recusal Conundrum

If Congress passed a law setting term limits for justices, could the Supreme Court find it unconstitutional? — Barbara Insel

Yes, but it would be awkward. It’s not clear how a challenge to the statute would arise, or whether the justices would recuse themselves in light of the obvious conflict. That decision, in turn, could depend on how lower courts ruled.

As we saw just weeks ago, the court sometimes lets lower-court decisions stand when it cannot muster the required quorum of six justices.

These complications, to say nothing of the Constitution’s text (the justices “shall hold their offices during good behavior”), could suggest that a statute is not the right approach.

The report issued by the Biden-appointed Supreme Court commission said that some of its members had concluded that “the existence of constitutional doubt, as well as the significance and complexity of adopting a system of term limits, are themselves reasons to pursue the reform through constitutional amendment.”

“No matter which way the court came out on the question,” the report added, “these commissioners worry that the court’s legitimacy, or perceptions of its legitimacy, would be undermined.”

I would love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at [email protected].

Closing Argument

A Former Journalist on the Bench

J. Harvie Wilkinson is a respected federal appeals court judge who was appointed by President Ronald Reagan and considered for a seat on the Supreme Court by President George W. Bush.

He is also a former journalist, having served for three years as the editorial page editor of The Norfolk Virginian-Pilot before joining the Justice Department. (That did not stop The Pilot from opposing his nomination in 1983. The paper said that he lacked courtroom experience.)

Judge Wilkinson’s background might have played a role in his opinion Tuesday limiting a court order requiring LinkedIn to turn over the records of journalists for an unidentified news organization that published an article “purporting to describe a top-secret United States military operation in a foreign country.”

The ruling did not identify the article or news organization in question. But parts of it raised the possibility that it involved a New York Times article disclosing a botched military operation in North Korea in 2019.

The government sought 18 months’ worth of information that could, Judge Wilkinson wrote, identify a vast number of confidential sources who had nothing to do with the article in question.

Judge Wilkinson, writing for a unanimous three-judge panel, made clear that he understood reporting.

“Confidentiality of sources is the lifeblood of a free press,” he wrote. “Without confidentiality, press coverage would be pushed in the direction of official handouts and outside sources. Without confidentiality, the ability of journalists to report on events of large importance and governmental behavior of dubious legality and integrity could not help but be hampered.”

He added that such reporting may be all the more urgent these days, and that a free press could not be viewed in isolation.

“Press freedom is among those things viewed by autocrats worldwide as a threat to their grip on power,” he wrote. “Criminal prosecutions freed from partisanship and retribution, a fearless and independent judicial system, and a secure and accessible electoral process all serve to supplement press freedom in distinguishing liberty from oppression.”

The decision was nothing like a complete victory for the journalists. Judge Wilkinson said a trial judge could conclude that some of their records must be disclosed. But he said the government had no “license to round up indiscriminately the identities of confidential and unrelated news gathering sources.”

Please send me your comments on congressional investigations, term limits for Supreme Court justices, confidential sources or anything else at [email protected]. See you next week. — Adam