According to a law professor writing for Politico, Donald Trump earned a small victory this past week when the Supreme Court did not allow Congress to have his tax returns that prosecutors in New York will receive, but it did set a precedent for more Congressional power over the president that can be used in further conflicts.
In her column for Politico, Kimberly Wehle of the University of Baltimore School of Law, wrote that “Congress emerged with more clarity about its oversight powers, and how to enforce them, than it had before the Supreme Court weighed in,” in its 7/2 decision.
Writing that, “Trump’s breathtaking plea for absolute presidential immunity, if accepted, would have fractured the Constitution’s system of separated powers,” Wehle said when the court rebuffed Trump it created an opening for Congress.
“The Supreme Court hasn’t had to wade into this kind of mess until now because every president before Trump struck deals with the coordinate legislative branch of government,” she explained. “Because there was no precedent in Mazars, the Court had to make up some law. Which it did. The Chief Justice unveiled a multi-part test to guide lower courts faced with subpoenas for information bearing on sitting presidents. In particular, the Court sent the matter back to the lower court with directions that it consider whether the subpoenas have a significant legislative purpose that is supported by sufficiently ‘detailed and substantial’ evidence; whether Congress can reasonably get the information from other sources; whether the subpoenas are ‘no broader than reasonably necessary to support Congress’s legislative objective’; and whether the third parties’ compliance with the subpoenas would somehow burden the president.”
That, she notes, could mean that “congressional subpoenas to [accounting firm] Mazars and Trump’s banks, as drafted, may well pass this test,” she continued before adding that Congress would likely “figure out a way to satisfy the Court’s new standard.”
Noting that the Supreme Court “made very clear” that Congress has subpoena power, the professor wrote that, in the recent decision, “the majority did not erect an especially high bar for congressional subpoenas seeking information about presidents’ finances.”
Adding that the Supreme Court “might impose a standard that required courts to probe the subjective motives behind congressional subpoenas implicating the president,” Wehle conceded, “Had the Court erected a test that forced lower courts to climb into the minds of individual or collective members of Congress and tease apart valid and invalid motives, it would have effectively insulated presidents from congressional subpoena powers because subjective state-of-mind standards are extremely difficult to satisfy.”
According to law professor, the ground has now shifted with the latest decision, as she used the recent impeachment trial as an example.
“The Supreme Court’s decision in Mazars USA is best viewed in tandem with the Republican Senate majority’s acquittal of Trump for obstruction of Congress” she elaborated. “Trump’s lawyers successfully argued that the president can totally flout any requests for information from Congress to the Executive Branch with impunity, leaving American voters and their representatives without the basic information needed for oversight. Congress gave that power away, with nothing gained in return. The Supreme Court just handed it back.”
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