Subpoena Power and the Presidency
Professors Sean Kealy and Jim Wheaton weigh in on the Supreme Court cases related to President Trump's tax and financial records.
Earlier this spring, Clinical Associate Professor Jim Wheaton and Clinical Associate Professor Sean Kealy submitted amicus curiae briefs in two cases that are before the US Supreme Court—Trump v. Mazars and Trump v. Vance—both of which consider whether subpoenas for the president’s tax and financial records are enforceable. The professors are hoping to draw the justices’ attention to important arguments they believe were overlooked as the cases wound their way to the Supreme Court over the last year.
Professors Kealy and Wheaton spent substantial time during the spring semester preparing and filing two separate briefs with more than 50 pages of new arguments for the Court to consider when it deliberates. “We had the ability to step back from these cases and think about them differently,” Wheaton says.
The court heard oral arguments on both cases on May 12. The hearings are among the first Supreme Court cases ever broadcast, without video, simultaneously with their argument—a consequence of the COVID-19 pandemic.
Q&A
The Record: You filed amicus briefs in two cases that are now before the Supreme Court—Trump v. Mazars and Trump v. Vance. How are these two cases related?
Wheaton: In both cases, President Trump is challenging subpoenas into his tax records, alleging in each case that the subpoenas are improper and unenforceable. The lower courts have previously ruled against the president on every decision in both cases.
Kealy: In the Mazars case, the president is challenging congressional subpoenas on several grounds, claiming they are invalid because Congress cannot investigate the president, and also because the stated purposes of the subpoenas were pretextual.
Wheaton: And in Vance, the president is arguing that his accounting firm need not comply with subpoenas from a New York grand jury because he—as well as all individuals associated with his businesses and the hundreds of businesses themselves—should be immune from any state criminal investigatory process. It’s a novel argument.
The Record: Would you briefly describe the arguments outlined in the amicus brief for the Mazars case?
Kealy: Yes, in our brief on Mazars we are urging the Court to reexamine the way it considers the scope of congressional power. The Supreme Court’s jurisprudence in this area just doesn’t provide clear guidance, but it would not be difficult for it to do so in this case. To determine the legitimacy of a congressional subpoena or efforts to hold a witness in contempt, we propose a simple test comprised of four questions
The Record: And what position do you take in the amicus brief for the Vance case?
Wheaton: Basically that there is a fundamental flaw in the president’s argument. Records from the more than 500 Trump-related business entities covered by the grand jury subpoena do not even belong to the president. People form companies to gain limited liability, but they often forget that those companies become separate legal persons. Most of the interesting information about how those companies operate will appear in company financial records and tax returns. The president has no ownership interest in those documents, and he has taken advantage of the liability shields the ‘separateness’ of those companies provided for him in the Trump University lawsuits and other litigation over the years. It would be unfair to allow the president to pretend now that those companies are not separate from him. Incidentally, we made a similar argument in the Mazars case as well.
The Record: When do you expect the Court to make a ruling in these cases?
Kealy: In a typical year, the Supreme Court will issue all its pending decisions no later than the first week of July. At this point, because the Court stopped hearing cases for more than a month while it figured out a way forward in light the global pandemic, it’s not clear how soon the justices will rule. We’ll just have to wait for the verdict.
