The Trump Records Requests and the Potential for Judicial Intrusion into the Legislative Process

A guest post by Lawrence Friedman

Few observers could have been surprised by the federal appeals court’s decision in Trump v. Mazars USA, concluding that President Donald Trump cannot stop his accounting firm from producing financial information about him in response to a subpoena from the House Committee on Oversight and Reform. In fact, Trump has lost every case in which access to his personal financial records has been sought. The Supreme Court has agreed to review these decisions, with oral argument scheduled for March, and the Mazars USA case may prove the most intriguing—especially to those justices who prefer an originalist approach to constitutional interpretation.

The majority in Mazars USA validated the House Committee’s rationale for the subpoena to Trump’s accountants: the information about the president’s finances was necessary to further Congress’s legitimate legislative objectives. It is well settled that congressional committees may investigate matters upon which Congress can legislate. Through investigation, Congress may determine whether existing laws are sufficient, and whether they are being adequately enforced. The results of an investigation may persuade Congress to strengthen or modify existing laws—or propose new regulatory requirements. The request of Trump’s accounting firm, for example, related to the congressional interest in the efficacy of existing financial disclosure laws.

Given that the power to investigate is, as the Supreme Court has put it, “inherent in the legislative process,” courts generally have deferred to Congress’s stated rationale for seeking certain information in connection with a particular inquiry. Indeed, Congress enjoys relatively wide discretion to decide how best to go about the business of lawmaking. Such judicial deference appropriately leaves the democratic process to serve as the check on the legitimacy of Congress’s exercise of its investigative and policymaking authority.

These principles suggest the majority in Mazars USA made the right call in respect to the information held by Trump’s accountants, but Judge Neomi Rao’s dissenting opinion is still noteworthy. Relying upon text, history and the views of the framers, Rao sees a defined and judicially enforceable line: when a congressional inquiry touches on potential presidential wrongdoing, she reasons, “it does not matter whether the investigation also has a legislative purpose,” because “[a]llegations that an impeachable official acted unlawfully must be pursued through impeachment.” Rao accordingly would have held that investigations that turn on potential criminal conduct by the president or executive branch officials can only be pursued through the impeachment process.

Rao views a strict separation between legislative and impeachment authority as necessary to ensure that the House of Representatives does not escape the accountability associated with an impeachment inquiry. It is not entirely clear why the people would be more likely to hold House members accountable for the decision to undertake an impeachment inquiry as opposed to purely legislative investigation. After all, regardless of the House’s ends, its members serve the smallest number of constituents, hold office for the shortest terms of any elected federal official and, as a result, are the most responsive to the will of the people—which is true no matter the substance of any action the House undertakes.

Nonetheless, Rao’s originalist approach might well attract the attention of justices like Clarence Thomas and Neil Gorsuch. Were a majority of the Supreme Court to embrace her categorical division between legislative and impeachment investigations, Congress would face practical questions about how to exercise its lawmaking authority. On the one hand, House majorities could continue to pursue legislative investigations, and when they uncover evidence of illegal conduct by executive branch officials, the investigations could be reconstituted as impeachment inquiries. On the other, House majorities could decide to make impeachment the default mode of congressional investigation, regardless where it might lead—which could see the House operating in impeachment mode pretty much all the time.

In the end, no matter the label attached to the way in which the House chooses to pursue its constitutional lawmaking functions, the structural incentives for members of the majority to respond to constituent demands would remain unchanged. House investigations might proceed under different headings, but the questions – and the goals –in most instances would look quite familiar.

Through it all, moreover, Rao’s framework would appear to contemplate the courts policing the line between legislative and impeachment investigations. Judges, in other words, could be reviewing how duly elected members of Congress choose to go about pursuing their official responsibilities. To borrow Chief Justice John Roberts’s favorite analogy, such an approach could empower judicial umpires to go beyond simply calling balls and strikes and, instead, second-guess a manager’s strategic choices. Perhaps needless to say, such a development risks potentially dangerous judicial intrusion into the functioning of a coordinate branch of government.

Thanks, Obama! More on how due process is eroded by immigration policies

I recently wrote about how the Trump Administration’s immigration policies are drawing pushback from both Article III and immigration judges on the grounds that they violate due process (including failing to give migrants proper notice of the grounds on which they could fight their cases). But disrespect for migrants’ due process rights are not limited to the current administration. Texas Public Radio reports that back in 2014, the Obama Administration decided to fast-track immigration cases involving unaccompanied minors. That decision forced the immigration courts to delay thousands of other pending cases, which the Obama Administration arbitrarily rescheduled for November 29, 2019 — five years into the future. When the day arrived this past Friday, more than 100 migrants showed up for their hearings, only to learn that they had been postponed again — until 2021.

Delaying cases is a due process violation every bit as tragic as failure to give proper notice, and both the Trump and Obama administrations are guilty of using immigration courts to score political points.

California’s federal judicial vacancies come to the forefront

With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.

The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.

The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.

Surprise me, Senators. Do the right thing.

Party politics and judicial nominations in Michigan

The Detroit News has a fascinating and distressing story about how partisan politics are influencing judicial nominations in three different Michigan courts, covering both the federal and state levels of the judiciary.

Briefly, the state has two federal district court vacancies, one in the Western District of Michigan and one in the Eastern District. The vacancies have been difficult to fill because the Senate’s “blue slip” process essentially allows the state’s two Democratic senators to block the confirmations of any Trump nominees that they do not like. In light of this reality, state Republicans and Democrats worked out a compromise: the seat in the Eastern District would be filled by current Magistrate Judge Stephanie Davis, and the seat on in the Western District would be filled by a nominee supported by the Republican establishment. The plan would have made Davis the first African-American woman nominated to the federal bench by President Trump.

The pact fell apart, however, after Trump’s Western District nominee, Michael Bogren, lost the confidence of Senate Republicans. State Republicans scrambled to find a new nominee, and seemed to have landed on state appeals court judge Brock Swartzel. In the meantime, the Davis nomination was frozen in its tracks.

Then, out of nowhere, Michigan Supreme Court Justice Brian Zahra offered himself up as a nominee for the Western District vacancy. Zahra is a Republican (judges run for the bench with party affiliations in Michigan), and pledged to resign from the state supreme court if Trump nominated him and the state’s Senators agreed not to oppose his nomination. The move would allow a Democrat to be appointed to the state supreme court in his place, tipping the partisan balance of that court toward the Dems.

The article calls the proposal “a neat package” which, among other things, would allow Zahra to collect a federal salary as well as a state pension. But the partisan brazenness of the proposal is appalling, at least to this blogger. How could Zahra even pretend to be impartial if he was placed in the federal bench? And what role does he see for party affiliation on the trial bench, typically the least politicized aspect of the judiciary?

It is an increasingly popular take among partisans on both sides to criticize the judiciary as politicized and biased. Those concerns start with the judicial selection process, in which the very same partisans exert their dismal control.

Longest federal judicial vacancy gets another nominee

A seat on the U.S. District Court for the Eastern District of North Carolina, which has been vacant for nearly fourteen years, may finally be filled after President Trump nominated UNC law professor Richard E. Myers II for the position on Wednesday.

The vacancy, which has been in place since the end of 2005, is a testament to the dereliction of constitutional duties by both the executive and legislative branches. George W. Bush originally nominated attorney Thomas Farr to the seat, but Senate Democrats twice blocked the nomination. President Obama then offered two different nominees for the same seat during his eight years in office, only to have both nominations blocked by home-state Republicans. President Trump renominated Farr to the seat in 2017, but no vote ever came to the Senate floor.

Partisans will surely argue that each of the opposing party’s nominees was unacceptable, and that North Carolinians are better off with no judge than with a bad one. But tell that to the people who have had to wait longer for their cases to resolve.

Good luck to Professor Myers, who deserves better treatment than previous nominees and at least a speedy and fair up-or-down vote.

New Jersey federal judges speak out on vacancy crisis

The U.S. District Court for the District of New Jersey is authorized by law to have 17 active (i.e., full time) district judges. Since 2015, however, retirements have dwindled that number to 11 active judges. And simultaneously, the number of case filings has gone up 150 percent. As a result, the district today faces terrible docket congestion. The number of cases pending more than three years has more than doubled, and the total number of pending cases has more than tripled, over the last four years.

Now some of the district’s judges are speaking out. In a story published on NJ.com, Chief Judge Freda Wolfson insisted that Congress and the President should do their job and fill the vacancies.

While Wolfson said the judges continue to work around the clock and treat every case — no matter the magnitude — diligently, the sheer number of cases is going to inevitably slow down the process.

“We need help tremendously,” Wolfson said. “It is not just to relieve the burden on the judges. It is because we need to service the public as quickly as we can in a just manner.”

There is plenty of fault to go around. The Trump Administration has not put forward a single nomination for the District of New Jersey, even as it works to fill other judicial vacancies at a rapid pace. And in any event, neither of the state’s Democratic Senators, Bob Menendez and Cory Booker, have suggested any willingness to work with the Administration on potential nominees.

As I wrote for The Hill back in March, judicial vacancy emergencies like this stress the capacity of the courts and damage the administration of justice in all cases — most of which are entirely apolitical, garden-variety disputes. Playing politics with judicial appointments is damaging and largely pointless.

Growing dockets, many vacancies in the federal courts

I have a new op-ed in The Hill, noting the unfortunate conflation of growth in federal case filing, the mass of ongoing judicial vacancies, and ugly partisanship in the judicial confirmation process. Key grafs:

These partisan inquisitions are embarrassing and wholly unnecessary. The vast majority of federal cases do not raise political questions. Whether a contract was breached or a patent infringed is neither a matter of liberal or conservative ideology nor one of broad significance. By contrast, the ongoing vacancies crisis in the courts is a matter of national concern. For private litigants, a shortage of judges means longer waits for trials and orders, and increased financial and emotional cost on clients resulting from the delays. For the general public, fewer judges means a justice system that is less efficient, less transparent, and even less trustworthy.

Just imagine if other important civic institutions such as police and fire services, churches and synagogues, and schools and hospitals had to rely entirely on politicians to meet their staffing needs. Imagine if the career of a promising doctor, teacher, or firefighter depended not on her relevant skills and experience, but whether she belonged to the right kind of civic organization or took the wrong stand on an issue in college. What kind of applicants would seek those jobs and run that gauntlet? What quality of employee would it ultimately produce? How long could people endure all the resulting delays and inefficiencies before it became too unbearable?

Please read the whole thing!