Supreme Court tossed a yellow warning flag in subpoena cases

The U.S. Supreme Court has articulated several "justiciability" limitations, including the political question doctrine, that restrict the jurisdiction of the federal courts to actual "cases" and "controversies." The landmark case of Baker v. Carr, 369 U.S. 186 (1962), provides general guidance on the factors relevant to its application. The court has sparked public interest in its possible use in Trump v. Deutsche Bank AG and Capital One and Trump v. Mazars.

In Trump v. Deutsche Bank and Capital One, the House Financial Services and Intelligence Committees subpoenaed the financial private records, including tax records, of Donald Trump, his family, and the Trump Organization as part of an investigation into matters on which legislation "may be had," including foreign corruption and money laundering. Trump objected and filed suit to block the enforcement of the subpoenas.

Congress has long sought to protect the marketplace from the corrupting influence of criminal-derived proceeds, but with limited success. In 2016, a "60 Minutes" program demonstrated how easy it is to launder dirty money through real estate. It has not gotten any harder since then, which is aptly portrayed in the popular Netflix series "Ozark." The federal district court and 2nd U.S. Circuit Court of Appeals rejected Trump's claim that Congress had overstepped its authority, compromised the family's privacy, and interfered with his duties as president. It held that the subpoenas served a valid purpose and did not exceed Congress' power.

In Trump v. Mazars, the subpoenas were directed by Congress (the House Oversight and Reform Committee) to Trump's longtime accounting firm for financial records to shed light on compliance with government ethics law. The additional concern was that the accounting numbers were more fiction than fact. Trump filed suit to block the enforcement. Among other evidence, the committee heard testimony that Trump improperly valued assets and liabilities on financial statements and failed to disclose certain financial holdings required by law. The federal district court and Court of Appeals for the District of Columbia upheld the subpoenas.

The consolidated cases are before the Supreme Court. But the court may be looking for a way to finesse the matter. Last week, it tossed a yellow warning flag when it directed the parties (Trump, the solicitor general, and Congress) "to file supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on" the cases. It is significant that the subpoenas sought non-privileged documents and were directed to the banks.

The Supreme Court's action suggests that some justices may be looking for a rationale to avoid the question of Congress' authority to access the private financial records. The letter briefs are due on May 8, with oral arguments on the merits of the cases set for May 12.

Should the Supreme Court uphold the subpoenas, the next round of litigation by Trump and his family will be to challenge the scope of the various subpoenas, which would mean further delay. Unfortunately, the public isn't likely to be any better informed about Trump's taxes and financial conflicts of interest when the election rolls around in November than it is today. 