{"id":67683,"date":"2020-05-12T12:00:30","date_gmt":"2020-05-12T16:00:30","guid":{"rendered":"http:\/\/www.bu.edu\/law\/?p=67683"},"modified":"2022-07-28T11:25:10","modified_gmt":"2022-07-28T15:25:10","slug":"subpoena-power-and-the-presidency","status":"publish","type":"bu-article","link":"https:\/\/www.bu.edu\/law\/record\/articles\/2020\/subpoena-power-and-the-presidency\/","title":{"rendered":"Subpoena Power and the Presidency"},"content":{"rendered":"\n

Earlier this spring, Clinical Associate Professor Jim Wheaton<\/a> and Clinical Associate Professor Sean Kealy<\/a> submitted amicus curiae <\/em>briefs in two cases that are before the US Supreme Court\u2014Trump v. Mazars<\/em><\/a> and Trump v. Vance<\/em><\/a>\u2014<\/em>both of which consider whether subpoenas for the president\u2019s tax and financial records are enforceable. The professors are hoping to draw the justices\u2019 attention to important arguments they believe were overlooked as the cases wound their way to the Supreme Court over the last year.<\/p>\n\n\n\n

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. \u201cWe had the ability to step back from these cases and think about them differently,\u201d Wheaton says.<\/p>\n\n\n\n

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\u2014a consequence of the COVID-19 pandemic.<\/p>\n\n\n\n

Q&<\/span>A<\/h2><\/div>\n

The Record:<\/span> You filed amicus briefs in two cases that are now before the Supreme Court\u2014Trump v. Mazars<\/em> and Trump v. Vance<\/em>. How are these two cases related?<\/span><\/h3>\n\n\n\n

Wheaton:<\/strong> 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.<\/span><\/p>\n\n\n\n

Kealy: <\/strong>In the Mazars<\/em> 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.<\/span><\/p>\n\n\n\n

Wheaton:<\/strong> And in Vance<\/em>, the president is arguing that his accounting firm need not comply with subpoenas from a New York grand jury because he\u2014as well as all individuals associated with his businesses and the hundreds of businesses themselves\u2014should be immune from any state criminal investigatory process. It\u2019s a novel argument.<\/span><\/p>\n\n\n\n

The Record:<\/span> Would you briefly describe the arguments outlined in the amicus brief for the Mazars<\/em> case?<\/span><\/h3>\n\n\n\n

Kealy: <\/strong>Yes, in our brief on Mazars<\/em> we are urging the Court to reexamine the way it considers the scope of congressional power. The Supreme Court\u2019s jurisprudence in this area just doesn\u2019t 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<\/span><\/p>\n\n\n\n

The Record:<\/span> And what position do you take in the amicus brief for the Vance<\/em> case?<\/span><\/h3>\n\n\n\n

Wheaton: <\/strong>Basically that there is a fundamental flaw in the president\u2019s 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 \u2018separateness\u2019 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 <\/em>case as well.<\/span><\/p>\n\n\n\n

The Record:<\/span> When do you expect the Court to make a ruling in these cases?<\/span><\/h3>\n\n\n\n

Kealy: <\/strong>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\u2019s not clear how soon the justices will rule. We\u2019ll just have to wait for the verdict.<\/span><\/p>\n<\/section>\n\n\n\t