Lawyer Highlights and (Mostly) Lowlights in the Congressional & Grand Jury Subpoena Oral Arguments

by Michael C. Dorf

The big news from today's oral SCOTUS oral arguments is that there appears to be a greater likelihood that the Court will allow the Manhattan grand jury subpoena to stand--or at least will deny Trump's categorical objections to it--than that it will give its blessing to the House committee subpoenas. The conservative Justices seemed receptive to NY County DA Carey Dunne's argument that the Manhattan case is essentially controlled by Clinton v. Jones. If the president's interest in avoiding distraction does not suffice to give him categorical temporary immunity from civil litigation, then it surely does not suffice to overcome the state's stronger interest in the vindication of its criminal law.

To be sure, Trump lawyer Jay Sekulow argued that Jones was a wholly different case because it arose in federal court. But while Sekulow was very loud, he wasn't very persuasive for two main reasons. First, the Court in Clinton v. Jones said only that it wasn't reaching the question whether a different result might obtain in (a civil case in) state court. Yes, as the Clinton Court said, the considerations of federal supremacy make such a case different, but that doesn't necessarily mean that a different outcome should result. Sekulow's argument treated the Court's express reservation of the question in Clinton as though it resolved the matter.

Second, nearly all the force was taken out of Sekulow's argument by the fact that the NY case, though originating with a grand jury subpoena in state court, was actually litigated in federal court. Some readers might be wondering how that can be. What about the Anti-Injunction Act? What about Younger v. Harris? Those are, respectively, a statute and a case affirming a judge-made abstention doctrine that typically limit the ability of federal courts to interfere with ongoing state court proceedings. Although the federal district court found Younger abstention justified, the US Court of Appeals for the 2d Circuit did not and persuasively explained why not. No one said anything about either Younger or the Anti-Injunction Act during the oral argument, and everyone took for granted that this case was appropriately in federal court and that future such cases, if any, would also result in federal court litigation rather than state court litigation to determine whether a subpoena could issue. Concerns that a state court would be insufficiently protective of the president's legitimate claims of burden or privilege accordingly rang hollow.

Overall, the NY oral argument gave the impression of the Justices moving towards a consensus that would allow the grand jury subpoenas to issue, subject only to particularized objections to be evaluated under a standard that looks to the state's reasonable need for the evidence in a timely fashion. That would be a major legal defeat for Trump but perhaps not so damaging politically, because grand jury secrecy would prevent the documents from becoming public until long after the November election.

So far as the political stakes are concerned, therefore, the real action was in the first oral argument, in the two cases involving House committee subpoenas. And there, with the possible exception of Justice Breyer (who worried about a future Joe McCarthy harassing a future FDR or Harry Truman) the tea leaves point to a potential partisan divide with Trump winning 5-4 (or 6-3 if Breyer defects). To be clear, I don't favor that outcome. And as I'll now explain, I don't think that the actual substance of the oral argument justifies it either.

Arguing for the House of Representatives, Doug Letter had what we might call a "Drew Days in Lopez" moment that could sink his case. Letter contends that a congressional committee has subpoena power, subject only to particularized objections, so long as its request relates to a legitimate legislative purpose--a term drawn from the case law. Asked by Chief Justice Roberts to name a single example of a subpoena that could not satisfy that standard, Letter whiffed.

The moment was reminiscent of a not-so-great day that Solicitor General Drew Days experienced when arguing United States v. Lopez in 1994. The question then was whether the Gun Free School Zones Act fell within the scope of congressional power to regulate interstate commerce. Days said yes. Chief Justice Rehnquist asked Days to name an example of some activity that Congress could not regulate under his theory. Days replied that he was "not prepared to speculate." He was then asked versions of the same question by several other Justices and steadfastly gave no answer. He pointed to limits on the form of congressional power but not on the subject matter. Justices Kennedy and Ginsburg each suggested that perhaps Days was saying that the issue was a nonjusticiable political question. Days insisted he was not. While insisting that he believed there were substantive limits on the scope of the commerce power, he never provided an example and eventually waived his rebuttal. The US lost the case 5-4. The Chief Justice wrote an opinion that emphasized that there are outer limits to the commerce clause--limits that the SG had failed to identify.

Letter came dangerously close to making the same blunder as Days in Lopez. He did not give an example when asked by the Chief Justice, nor did he give one when asked essentially the same question by Justice Alito. Justice Kavanaugh at one point appeared to throw Letter a lifeline by asking whether, under Letter's theory, Congress would have a legitimate legislative purpose to seek a president's medical records. Letter said he couldn't imagine one but then thought better of it and suggested that Congress might legitimately be interested in issues relating to the 25th Amendment. By the end of the oral argument, it was not even clear that Letter realized he had blown it.

It would be very unfortunate if the Court sides with Trump in the congressional subpoena cases based on Letter's poor performance, because he had--our ought to have had--a very good answer. Here's what he ought to have said in response to Roberts:

Your honor is correct that virtually any request could, under the right circumstances, be related to some legitimate legislative purpose of Congress, which is why the requirement of a legitimate legislative purpose has never been understood to pose an obstacle to Congress's exercise of its subpoena power. However, that does not mean the power is unlimited. Rather, the key limits are privacy interests, executive privilege or potentially some other privilege, and the possibility of a particularized burden, all to be balanced against what this Court in the Nixon case called "demonstrated specific need." None of those sorts of reasons for limiting a congressional subpoena in a particular case remotely justifies what amounts to the categorical rule that the president's lawyers seek.

Speaking of Trump's personal lawyer, Patrick Strawbridge appeared to have a much better day than Letter (or Sekulow). However, the key word there is "appeared." Justice Breyer asked Strawbridge a couple of questions, including whether the congressional subpoena in Watergate was unlawful under his approach. Because of the time limits and limited follow-up, Strawbridge didn't answer. He apparently realized it was an important question, so he came back to it in his summation.

Strawbridge sounded smooth but what he said undercut rather than supported his case. He pointed out that during Watergate, the DC Circuit had rejected a subpoena of presidential material during Watergate. It did so in the Senate Select Committee case, finding that the material sought was duplicative. But as the House Committees' brief explains, Trump's lawyers are doubly mistaken when they cite Senate Select Committee for the proposition that a congressional committee must show a "demonstrably critical" need for presidential material. For one thing, that's the standard the DC Circuit set for overcoming executive privilege, which Trump has not asserted and could not assert in this litigation, given that the records do not involve performance of official functions as president. For another thing, even with respect to executive privilege, the standard set by the SCOTUS in the Nixon Tapes Case (and since followed by the DC Circuit in congressional subpoena cases) is not a "demonstrably critical" need but "demonstrated specific need."

Remarkably, Trump's reply brief simply reasserts reliance on the discredited DC Circuit standard of Senate Select Committee. Given that willingness to misuse case authority in print, it is perhaps not surprising that Strawbridge chose to misuse it in the same way during the final moments of his oral argument.