A subpoena is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure to comply. In recent months, with the release of the redacted Mueller Report, Congress has used its power to subpoena individuals and companies connected to the Trump Administration, the Trump Organization, and the Mueller report, as they seek additional evidence. Some subpoenas have been ignored, where others have been blocked or put on hold through litigation.
On Lawyer 2 Lawyer, host Craig Williams is joined by Steven D. Schwinn, professor of law at the John Marshall Law School in Chicago and attorney Michael Stern, who specializes in legal issues affecting Congress, to discuss Congressional subpoena power, executive privilege, recent litigation and decisions, and whether President Trump can use executive privilege to block congressional subpoenas.
Steven D. Schwinn is a professor of law at the John Marshall Law School in Chicago.
Attorney Michael Stern specializes in legal issues affecting Congress, including congressional ethics, elections, investigations, and lobbying.
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Congressional Subpoena Power & Executive Privilege
Steven D. Schwinn: President Trump is in a very weak legal position in these cases. It’s really kind of a last-ditch effort in my view to make a constitutional claim against Congressional authority to investigate with regard to his taxes.
Michael Stern: Many of these issues have come up for many administrations and there have been a lot of assertions of executive authority that I think Congress has been weak in pushing back against and maybe the way that Trump is doing it will finally cause Congress to stand up.
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- Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny Southern California. I write a legal blog named ‘May It Please the Court’ and have two books out titled ‘How to Get Sued’ and ‘The Sled’.
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A subpoena is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under penalty for failure to comply.
In recent months with the release of the redacted Mueller Report, Congress has used its power to subpoena certain individuals and companies connected to the Trump administration, the Trump organization and the Mueller Report as they seek additional evidence.
Some subpoenas have been ignored, where others have been blocked or put on hold for litigation. Today on Lawyer 2 Lawyer we are going to discuss the reach of Congressional subpoena power, executive privilege, recent litigation and decisions, and whether President Trump can use executive privilege to block congressional subpoenas.
So here to discuss today’s topic is returning guest Steven Schwinn. He is the Professor of Law at the John Marshall Law School in Chicago. He teaches, writes, and talks about issues related to constitutional law, comparative constitutional law and human rights. He also co-edits the Constitutional Law Prof Blog and is a frequent media commentator on the Constitution, the courts, and politics.
Welcome back to Lawyer 2 Lawyer Steve.
Steven D. Schwinn: Well, thanks so much for having me Craig.
- Craig Williams: And our next guest is attorney Michael Stern. He specializes in legal issues affecting Congress, including Congressional ethics, elections, investigations, and lobbying. He served as Senior Counsel to the U.S. House of Representatives from 1996 to 2004. He later served as Deputy Staff Director for Investigations for the Senate Committee on Homeland Security and Governmental Affairs and Special Counsel to the House Permanent Select Committee on Intelligence. You can also check out his blog, Point of Order at pointoforder.com.
Well, Michael, let’s start with you. Can you give us a kind of description of how Congressional subpoena power works, where it comes from in the Constitution and how it’s been used in the past?
Michael Stern: Sure, I would be happy to. The Constitution does not explicitly refer to Congressional subpoena power, but it has long been recognized that both Houses of Congress have the power to call for witnesses and documents for matters that fall within their Constitutional responsibilities. And since the very beginning of the Republic both the House and Senate have utilized that power to issue subpoenas and require witnesses to appear before their committees.
Both Houses have rules that delegate to their committees the power to issue subpoenas. It depends on the committee whether the subpoena can be issued unilaterally by the chairman or needs to be voted on by the full committee, but pretty much every committee in Congress has the power to issue subpoenas and require witnesses to attend and documents to be provided. There is also a criminal statute which was passed in the mid 19th Century which makes it a crime to willfully refuse to comply with a Congressional subpoena.
The problem comes when the Congress strives to use its power to seek information from the executive branch, because of course the power to prosecute people under that criminal statute rests with the Justice Department and ultimately — which ultimately reports to the President. So the longstanding position of the executive branch is that if the President asserts an official privilege, such as an executive privilege, and directs his subordinates not to comply with Congressional subpoena that cannot constitute a criminal contempt under the statute and therefore the executive branch will not bring that matter to a grand jury for prosecution.
This presents a problem when a committee wants to try to enforce its subpoenas against the President or his subordinates.
- Craig Williams: Well, Michael, we are hearing in the situation where we have Congress issuing two subpoenas recently, to McGahn and to Barr. Steven, what’s the circumstances here and how well is the executive privilege going to be respected?
Steven D. Schwinn: So executive privilege is one of the pushbacks that we are seeing from the Trump administration, but there are others in these cases as well. When a committee in Congress issues a subpoena and the President or an executive officer doesn’t want to comply, they have a number of different options, and we have seen the Trump administration use really all of these different options, asserting executive privilege is one of those, but there are some other things that we have seen asserted against the Congressional inquiries as well.
So for example, one of the things that we see the Trump administration asserting time and time again in these cases is making a claim that Congress doesn’t have a legitimate legislative purpose in making the request that it’s making.
The Trump administration has also asserted separation of powers and claimed more or less that Congress is encroaching on the executives’ enforcement power, that what Congress is doing really isn’t investigating or engaging in oversight, but instead really is trying to enforce the law. And then we have seen some privacy claims as well.
As to executive privilege, the Trump administration has in my view really asserted a kind of breathtaking and sweeping version of executive privilege, where it said everything is privileged, and that’s kind of categorical, you can’t even testify kind of privilege, and claiming that that has roots in the executive privilege, which again is a kind of sweeping kind of claim that the Trump administration is using to withhold witnesses entirely from testimony.
- Craig Williams: Michael, what’s the possibility here of Congress holding these people in contempt and if the Justice Department won’t enforce it, how do they go about contempt proceedings?
Michael Stern: Well, that is a — the second one is a knotty question. In terms of the first one, actually moving forward with contempt, of course the Judiciary Committee has already voted to hold Attorney General Barr in contempt. Now, that’s just the first part of the process.
The committee then has to send a report to the Floor of the House and the House would have to vote on the contempt report to adopt it. Then it can send that under the statute to the US Attorney for the District of Columbia, but as I mentioned earlier, nothing is likely to happen with that.
It also has the option of authorizing the committee to bring a civil enforcement action in federal court. Now, there is no explicit statutory process for that, but there have been a couple of cases where the House has brought such enforcement actions and it has had some success in getting the courts at least to hear those claims.
So the most likely route for the House to enforce subpoenas against executive branch officials would be to bring a civil enforcement action and ask a federal judge to declare that the subpoena recipient is required to comply with the subpoena that the Congress issued.
- Craig Williams: So we have seen a couple of those already. We have had Congressional subpoenas issued to Wells Fargo and Deutsche Bank and now one to the Mazars accounting firm for a hearing. How do those turn out? What’s the generic way of how that happens? Is Justice Department prosecuting Congress’ subpoenas on behalf of Congress and against President Trump?
Michael Stern: Well, those are different, so those were subpoenas that were issued to private third parties; to banks in the New York case and then an accounting firm in the case that was brought in DC. Now, those third parties said that they would comply with the Congressional subpoena if nothing else happened. So what happened was President Trump, not in his capacity as President, but as a private individual and his companies brought suit against those third parties to have the court ordered them not to comply with the Congressional subpoena.
Now, those cases do not involve any executive privilege. Basically the theory that the Trump Organization is going on is one that Steve mentioned earlier, which is simply that there is no legitimate legislative purpose for the subpoenas, that they are simply unrelated to any legitimate interest that Congress has and therefore should be declared invalid. That is a much more difficult claim to make than asserting executive privilege, in which case the court would have to balance the interests of the two branches against each other.
Here President Trump as a private individual is saying that really Congress has no business investigating these matters at all and courts tend to be very deferential to Congress in that situation. So in both those cases the District Court rejected the argument brought — the argument made by the plaintiffs, by the Trump Organization and those cases are now going to be appealed, but it’s a much more difficult argument to make on behalf of the anti-subpoena party.
Steven D. Schwinn: Craig, could I just jump in on that. So these cases are different in another way, Michael’s summary was excellent of those cases, but these cases are unusual in that they involve a federal statute that requires, and this is mandatory language, requires the Internal Revenue Service to turn over tax records when requested by certain committee chairs in Congress. And the committee chairs requested the records in Congress pursuant to this statute and so by a plain reading of the statute the Internal Revenue Service has an obligation to turn over Trump’s taxes to them.
That puts President Trump in an unusual position and what he has done in these cases is he has actually sued. He brought the suit affirmatively against the third party to stop them from turning over the records and asserted, as Michael summarized quite well, that Congress lacks legitimate legislative purpose in requesting these records.
The reason that he had to argue that they lack a legitimate legislative purpose is because he really didn’t have any other arguments at that point. He didn’t have an executive privilege argument, he doesn’t have anything like an absolute privilege or separation of powers argument, really all he has at that point is to argue that Congress lacks a legitimate legislative purpose, and as Michael said, I entirely agree, that’s a very, very weak argument.
- Craig Williams: What’s the merits of that? I mean what is Trump saying is a legitimate legislative purpose? Why is he saying that Congress can’t do what it’s trying to attempt in this case?
Michael Stern: Right, that’s a really good question. So start with the idea that Congress has the power to investigate and oversee essentially anything that it has the power to legislate on under Article 1 Section 8, and its powers under Article 1 Section 8 are pretty broad, which means that its powers to investigate and to oversee are also pretty broad.
What the Supreme Court has said in a couple of cases is that Congress has the power to investigate and to oversee anything that could lead to legislation, which again really is anything in Congressional authority under the Constitution. And the Supreme Court has said that means — it means quite a lot. It means really almost anything that Congress says that it means.
And so to that extent President Trump is in a very weak legal position in these cases. He just really — it’s really kind of a last-ditch effort in my view to make a Constitutional claim against Congressional authority to investigate with regard to his taxes.
- Craig Williams: Do you think a selective prosecution claim would have had more merit? I mean what Trump is basically saying is you are picking on me because I have gone — apparently gone away or the Mueller Report has exonerated me or whatever — however you come at on that, Trump is basically saying it’s not legitimate because I haven’t been accused of anything or nothing has been proven, I guess he has had a lot of accusations, just not a lot of proof?
Steven D. Schwinn: I think what he is saying is that Congress isn’t really trying to legislate when it seeks President Trump’s taxes, especially taxes for tax years before he became President, that instead what Congress is trying to do, and this I think is a really kind of interesting and curious argument, what Congress is trying to do is play politics and playing politics is not a legitimate legislative purpose, and again, I think in some ways that argument reveals just how weak this position is as a legal matter.
- Craig Williams: Michael, what’s your thought?
Michael Stern: I would just add — yeah, I think that what Trump’s argument is in these cases and actually what they involve are his financial records, bank records and accounting statements of his accounting condition by his accounting firm. He is basically arguing that you can’t — you don’t have the right to enforce the law against me, you can’t investigate me just because you think I violated the law at some time in my life and that is not a proper legislative purpose.
The committee has pushed back and argued that these requests are relevant to potential legislation that they might adopt, for example, relating to financial disclosure by the President and other officials. That is if it turns out that the President has been untruthful in prior financial disclosures and perhaps that will indicate he has not been truthful in his current financial — government financial disclosures, that may be a reason, for example, for tightening up the laws on financial disclosure. They also argue that it’s relevant to the potential foreign emoluments and financial conflicts of interest.
So in the DC case, the judge found all of those to be plausible legislative interests and he declined to consider whether there is any political motivation, basically saying look, the courts don’t get into what the actual motives of the committee may be. They just look at the official record and determine whether the information sought could be pertinent to a legislative purpose and that was satisfied here.
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- Craig Williams: And welcome back to Lawyer 2 Lawyer, I am Craig Williams and we are joined by returning guest Steven D. Schwinn. He is the Professor of Law at John Marshall Law School in Chicago. And Michael Stern, who specializes in legal issues affecting Congress, including Congressional ethics, elections, investigations and lobbying.
We have been discussing Congressional subpoena power and executive privilege and Steven, right before the break I know you wanted to get a word in.
Steven D. Schwinn: Well, no, actually I was just going to say that when I described those cases earlier I had a kind of brain fart. I was confusing those cases with a different case, where Congress is requesting information from the Internal Revenue Service. And Michael is exactly correct in his description of those two cases, that what’s going on in those cases is the committee is seeking financial records from Mazars, Trump’s accountant, and Deutsche Bank, Trump’s bank about President Trump, and President Trump has asserted the legal claims that we have both described.
- Craig Williams: Well, Michael, we have had President Trump claim that Congress is playing politics by investigating him and certainly there were people in Congress who have argued that Trump is guilty of the same things, saying that he is essentially going to task the Justice Department to investigate his enemies or the people that have criticized him. Not to turn our discussion away from the subpoena power, but what power exists either in the executive branch or in the Congressional branch to throttle the politics of the other branch?
Michael Stern: Well, I don’t think that they can really throttle the politics of the other branch; they can point out — a good deal of the dialogue in Washington has consisted of people accusing other people of playing politics and sometimes you wonder what the point is since they are all politicians. It seems rather self-evident that to some extent they’re playing politics and it’s really in some ways is more of a rhetorical pick than an actual substantive argument when they accuse each other of that.
- Craig Williams: That’s probably the most accurate description I’ve ever heard of that. Well, how do the branches of government balance their power here? Is it really — Steve, is it the judicial branch that weighs in and solves the problems in these disputes between the two, is that really the only place where they could both turn to get a resolution?
Steven D. Schwinn: Not necessarily and indeed the judicial branch, the courts, have been reluctant to intervene in these kinds of disputes between the White House and Congress. What the courts have tended to do, with a couple of exceptions the courts have tended to kind of take a step back, encourage the parties to informally resolve their differences and come up with some sort of compromised positions. So for example, a White House official or administration official might testify in a closed Hearing where nobody can take notes and maybe there are no Congressional aides or something like that as a compromised position in order to maintain the executives’ need for secrecy on the one hand but Congress’ need for information on the other.
Michael Stern: I completely agree with that and I think it’s very important to understand that Congress has to be very careful in how it goes to court and seeks judicial assistant as perhaps it would have been wise for President Trump’s private lawyers who have been a little more cautious before they went to court.
But the courts are unlikely to just start ordering the executive branch to produce every piece of information that the House wants. They have to sort of pick their battles based on the specific facts how important the information is, the strength of the party’s legal position in that dispute. For example, with the Mueller report, the committee — the Judiciary Committee has subpoenaed not only the report but all of the underlying documents which are like 1.4 million pages of documents.
There’s just no way a court is going to be able to go through that in any kind of time period that’s going to be useful for Congress, so they’re going to have to be selective and careful about which of those disputes they present for judicial resolution.
Steven D. Schwinn: And Craig, I think Michael raises a really important point particularly in today’s politics when you have both ends of Pennsylvania Avenue entrenching themselves in really hard positions, Congress requesting kind of everything and the Trump administration saying we’re not going to reply to anything. Those are really tough positions and don’t bode well in the courts. Judges don’t like to see, parties take those kinds of hard-line positions, and it’s really not the way the Constitution is designed.
If the Trump administration, for example, is asserting executive privilege, the way that’s supposed to work is on an evidence by evidence basis. So, for example, if a witness is called before Congressional committee it’s not supposed to work that the Trump administration simply instructs the witness not to attend instead the witness would attend and then on a question by question basis or a document by document request basis assert executive privilege. And then the court has something to kind of sink its teeth into in a more concrete kind of way.
But when we see both ends of Pennsylvania Avenue adopting these really extreme and hard positions, it’s really tough for the courts to deal with that.
- Craig Williams: Does this put us in — as many people have said in a constitutional crisis or is this something that is typical of politics and we have seen before with Nixon and Clinton and previous presidents? Steve, what do you comment on that?
Steven D. Schwinn: I’m not prepared to say that we’re yet in a constitutional crisis. I do think that speaking for myself I think the Trump administration and President Trump has adopted some constitutional positions that are extraordinary and historically we might say cutting edge pushing the envelope. It’s not clear to me yet that they are outside of constitutional boundaries although they’ve pushed really, really hard.
And I will say, Craig, our separation of powers system really are checks and balances system depends on that kind of aggressive overreach but it also depends on the other branches pushing back, and so when the President makes these kinds of sweeping constitutional claims we trust that Congress and the courts are going to push back with the same sort of energy and vigor and check the President, that’s the way our system is supposed to work.
Craig Williams: Michael, do you see that working?
Michael Stern: I do. I do not think this is a constitutional crisis. I would not describe it that way. I think you probably need to make some distinction between the statements that the President makes and what his departments and agencies actually do, certainly the President has made statements that one could characterize as rejecting all legitimacy of congressional oversight. I don’t think that the Justice Department has gone that far and what they have said. There’s obviously some tension between the way that the President likes to operate and the way that the Justice Department and other agencies that the government understand that they’re supposed to operate.
Craig Williams: And how do we take that? I mean, let me interrupt you for just a second because that’s a question I’ve had for a long-long time. How is it that we take President Trump when he tweets and he goes off on, what can only be described as tangents and outside the constitutional statements, how are we supposed to react to that? I mean, do we take what he says is as an edict or are we supposed to take it with a grain of salt and then turn and listen to what the actual Justice Department says or one of his more well-reasoned advisors after they’ve had a day or two to think about what President Trump said? Who do we believe here?
Steven Schwinn: Well, I think that is basically the question that Congress has to answer because really I think in some ways that’s the question that Volume II of the Mueller Report raises. The President in many cases told his advisors to do things that they clearly shouldn’t be doing and in many cases they just said, no, we’re not doing that, and so Congress asked over the House at this point has to look at that and say, well, is that evidence of a President who simply is incapable or unwilling to fulfill his constitutional responsibilities or is it just kind of an unorthodox guy who says a lot of stuff but isn’t really that harmful because he’s got people around him who will rein him in and prevent him from doing anything to damaging, and I mean, that kind of is the issue I think that the House has to wrestle with.
I have my personal opinions on that but that really is what it comes down to and in some sense these informational struggles with the executive branch sort of re-enact the same issues with the President, same things, and then his subordinates have to decide whether they are going to try to translate that into an official position that they can assert in court or whether they’re going to walk that back and say something else and when they end up in court if they do, they’re going to have a bit of a problem as they have in other cases trying to explain the discrepancies between what the President said and the position that they’re taking before the court.
Craig Williams: It does really seem that Volume II of the Mueller Report is a but for the subordinates there would have been obstruction of justice, at least that’s how I’ve read it.
Well, gentlemen, it looks like we’ve reached through the end of our program. At this time we’d like to take a moment to invite both Michael and Steve to share their final thoughts and their contact information, so Steve, let’s turn it over to you first.
Steven Schwinn: Sure, so first, Steve Schwinn, my contact information is by email [email protected], and I guess in terms of final thoughts what I would say is the Trump administration has really been extraordinary in the way that it has pushed back against congressional inquiries and time will tell as to how that all works out in the end, but as I had mentioned earlier, our system really depends on the other branches pushing back with the same kind of energy and vigor that we’ve seen from the Trump administration, and so I’m hoping that both Congress and the courts will play their roles.
Craig Williams: Great, thank you, Michael?
Michael Stern: And my name is Michael Stern. You can reach me on Twitter @mls1776 or at www.pointoforder.com. I would just emphasize while I agree with what you said about the Trump administration but I would also point out that many of these issues have come up for many administrations and there have been a lot of assertions of executive authority that I think Congress has been weak in pushing back against and maybe the way that Trump is doing it will finally cause Congress to stand up and assert its institutional prerogatives, I certainly hope so.
Craig Williams: Great. Well, thank you very much. We’ve enjoyed speaking with both Steven Schwinn and Michael Stern. Though we’ve reached the end of our program, at this time we’d like to have you rate us in Apple Podcasts, Google Podcasts, to your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can leave a comment on today’s show and sign up for our newsletter.
I’m Craig Williams, thank you for listening. Join us next time for another great legal topic.
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