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Friday, July 10, 2020

The process of Mazars and Vance (Updated)

Some process questions following Mazars and Vance, less about what happens on remand in these cases* than about what happens in future cases.

[*] I agree with what I have seen as a prevailing consensus--Trump runs out the clock on these subpoenas for this term, but may be in for a world of hurt and embarrassment as a private citizen if he loses in November. If he wins in November, all bets may be off.


1) Which way do the incentives cut following Mazars and how likely is litigation over future subpoena disputes? The Chief's premise is that these cases historically were handled through the hurly-burly of politics until inter-branch negotiation broke down here (with no mention of why inter-branch negotiation broke down during this administration and not before). But Congress' subpoena power cannot be too broad, otherwise "[i]nstead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court."

But then why had Congress never previously walked away from the bargaining table? The majority cites four examples--from Washington, Jefferson, Reagan, and Clinton--in which Congress has negotiated for and accepted some-but-less-than-all of what it requested. He cites no examples in which Congress walked away, despite precedent hinting at a broader subpoena power than what the Court recognized.

More importantly, what about presidential incentives? He holds the information and has no desire to give it up unless and until compelled to do so. Mazars offers a more beneficial standard (how beneficial is a subject of debate and must await future cases) that must be satisfied before he can be compelled to do so. So it seems to me that "instead of negotiating over information requests, [the President] could simply walk away from the bargaining table and compel [Congress to start the lengthy process to] compel compliance in court," where the President can try to avail himself of the new standard. Moreover, time is on the executive's side--if the litigation process takes a year or more (not unlikely if SCOTUS gets involved), the President can try to hold out to the next election or to the end of the Congress and the expiration of the subpoena.

2) The President's incentive to walk away is furthered by the Speech or Debate Clause, which prevents suit against Congress. The house or the committee must make the first move by bringing an action to enforce the subpoena or holding the President in contempt of Congress and seeking to enforce the contempt order (which requires the U.S. Attorney for D.C.). Either way, Congress is the first actor. The President's incentive is not to bargain, to run out the clock, and, perhaps, try to shift political blame onto Congress for escalating the political stalemate.

3) We see a stark contrast in what gets left to the hurly-burly of politics and what is appropriate for judicial refereeing. Whether members of the legislature can rig the design of legislative districts to (try to) ensure continuation in office of themselves and their party colleagues) is politics; how one branch engages in oversight of another branch requires judicial intervention. For present purposes, it does not matter which is correct; the point is an odd disparity.


4) The procedural issue in Vance involves Younger abstention. The state grand jury issued the subpoenas, Trump sued the DA in federal court, the district court abstained in deference to pending state proceedings, and the Second Circuit held that abstention was improper. Vance did not appeal the Younger ruling, so SCOTUS never had reason to decide it. But the Court said that a President could challenge in federal court a subpoena that attempted to influence or manipulate his official actions. Later, the Court says the President can raise "subpoena-specific constitutional challenges, in either a state or federal forum," such as claims of undue influence or undue interference.

But how does a case such as this fit into Younger? The typical framework for Younger goes as follows: 1) Whether the case falls within one of three classes of cases (including ongoing criminal proceedings; 2) consideration of the Middlesex factors of whether there is an ongoing proceeding, whether the proceeding implicates state interests, and whether the federal plaintiff can raise federal issues in state court; and 3) whether the case falls within an exception, such as bad faith, harassment, or "other exceptional circumstances."

The Second Circuit's analysis did not follow this framework. It instead held that Younger's underlying concerns for comity were not implicated in a case built around a federal-state conflict and raising "novel and serious" federal issues. It could have squeezed those concerns into the exceptions (this is what Trump argued in the complaint), but instead made them macro-level policy considerations that a court must consider before jumping into that framework.

5) What about Younger going forward, in this case or a future case? With respect to subpoenas for private documents, the President seems to be an ordinary citizen able to challenge a subpoena on state and federal grounds, including unique federal presidential grounds such as non-interference with Article II functions. Are those challenges automatically a basis for federal jurisdiction and non-abstention? Can ordinary state-law arguments against a subpoena, such as overbreadth, be a basis for federal jurisdiction? Do state-law arguments become Article II arguments when raised by the President? Must there be a federal forum for all Article II arguments, in a way there need not be a federal forum for First Amendment arguments?

6) The Court's resolution arguably alters the Younger analysis in this case. The Second Circuit rejected abstention because of the President's "novel and serious claims," specifically that the President is absolutely immune from state criminal investigation or that a unique standard applies. So the same questions apply: If the President is asserting micro challenges, many under state law, to specific pieces of the injunction, is a federal forum warranted? Can the lower court, having rejected Younger, find abstention appropriate given the changed nature of the case?

Posted by Howard Wasserman on July 10, 2020 at 03:24 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Barry, while concerning subpoenas issued to third party, and private entities (like banks, hereby) already discussed in the Supreme court(1975) in:




Posted by: El roam | Jul 15, 2020 3:08:41 PM

Barry, there is no Obama here(or previous one) for, I quote:

"This dispute therefore represents a significant departure from historical practice. Although the parties agree that this particular controversy is justiciable, we recognize that it is the first of its kind to reach this Court; that disputes of this sort can raise important issues concerning relations between the branches;"


Posted by: El roam | Jul 15, 2020 2:57:28 PM

"But when Congress issues such a subpoena to a third party, Congress must surely appreciate that the Judiciary may be pulled into the dispute, and Congress should not expect that the courts will allow the subpoena to be enforced without seriously examining its legitimacy."

Was this the same standard for President Obama and before?

Posted by: Barry | Jul 14, 2020 4:03:32 PM

And just recalling, from the very outset, how those subpoenas and the atmosphere felt indeed. Just to quote some democrat members at the time ( quoting their statements, from the complaint at the time, posted by Wasserman):

"We're going to have to build an air traffic control tower to keep track of all the subpoenas flying from here to White house"


"turn Trump's life upside down " or " make Trump's life living hell".

So, when you read such expressions, with all the factors stated in my comments, one can't expect, reasonable negotiation.

Here to the complaint:



Posted by: El roam | Jul 10, 2020 5:36:13 PM

Just punchline to my comment:

All factors presented in my comment, form clear suspicion, that, it doesn't serve (demonstrably so) any legitimate legislative purpose. So, surly, at the outset, negotiation between both branches is problematic (beyond inherent bitter political rivalry or enmity).


Posted by: El roam | Jul 10, 2020 5:18:35 PM

Important rulings indeed. But, the court emphasized about what is unique in that case ( of Mazars) and for the first time analyzed by the court (and causing such dispute barring negotiations between both branches it seems):

First, third party involved and subpoenaed ( private entity, Mazars). Second, huge volume of personal documents of the president (even prior to this tenure or election). Third, Congress should try to avoid such conflict, by checking other sources for information before reaching the president. Fourth, the burden imposed on the president.

I quote Justice Alito for example (constructively dissenting):

"But when Congress issues such a subpoena to a third party, Congress must surely appreciate that the Judiciary may be pulled into the dispute, and Congress should not expect that the courts will allow the subpoena to be enforced without seriously examining its legitimacy."


Posted by: El roam | Jul 10, 2020 5:02:22 PM

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