When we first discussed the Mazars case (almost one year ago), I suggested that one of the issues would be whether President Trump had standing to object to congressional document subpoenas directed to third parties when he was not claiming constitutional or other privilege in the subpoenaed documents. While Trump and his companies objected to the subpoenas on the grounds that the underlying investigation lacked a legitimate legislative purpose, it was not clear that anyone other than the subpoena recipients should be able to challenge them on that basis.
However, the House did not raise standing as an issue in either the Mazars (involving a subpoena to Trump’s accounting firm) or Deutsche Bank (involving subpoenas to two banks for records relating to Trump’s finances) cases. Nor did any of the judges in those cases question standing. In her Mazars dissent, Judge Rao asserts “[a] subpoena’s force extends beyond its recipient, which the majority has implicitly acknowledged by declining to question President Trump’s standing to challenge the subpoena’s validity.” In Deutsche Bank, the Second Circuit notes “there is no dispute that Plaintiffs had standing in the District Court to challenge the lawfulness of the Committees’ subpoenas by seeking injunctive relief against the Banks as custodians of the documents. See United States Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1260 (D.C. Cir. 1973) (‘[T]he plaintiffs have no alternative means to vindicate their rights.’) (italics omitted), rev’d on other grounds without questioning plaintiffs’ standing, 421 U.S. 491 (1975).” In their Supreme Court brief, Trump’s counsel simply observe that neither the DC Circuit nor Second Circuit questioned standing and cite a footnote in the Supreme Court’s Eastland decision for the proposition that third parties can challenge legislative purpose. Brief for Petitioners at 59 n.7 (filed Jan. 27, 2020); see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975).
Eastland, however, involved a claim that the subpoena to a bank for an organization’s financial records violated its First Amendment rights. Here there is no claim that the subpoena violates any constitutional privilege or right; Trump simply objects to the validity of the investigation in which the subpoena was issued. As I noted in my original post, I would not read the footnote in Eastland as allowing third parties to challenge the legislative purpose of a congressional subpoena when that purpose is not relevant to an asserted constitutional privilege. And the conclusory references to Eastland suggest that there is no other caselaw supporting the argument for standing.
In any event, Trump’s standing is premised on the idea, suggested by the Second Circuit, that the subpoenaed records belong to him, and the banks (and the accounting firm) are merely “custodians.” But it is not at all clear that this is true for many of the documents in question. As the House points out “[m]any of the subpoenaed documents are internal bank records that the President may never have seen or even known about.” Brief for Respondents at 65 (filed Feb. 26, 2020).
Furthermore, an amicus brief filed by two Boston University law professors points out that most of the records at issue are not Trump’s personal financial records but records of various business entities that are legally separate from him. Indeed, in many cases these entities no longer exist, no longer are owned by Trump and/or are not parties to the litigation. They argue that Trump has no rights in these corporate records and cannot assert any of his legal objections with respect to them. See Brief of Boston University School of Law Professors Sean J. Kealy and James J. Wheaton as Amici Curiae in Support of Respondents at 23-26 (filed Mar. 3, 2020). They also argue that even those entities which are parties to the litigation cannot assert claims based on alleged lack of legitimate legislative purpose because those claims are founded in separation of powers concerns which have no possible application to these business organizations. Id. at 27-29; see also Brief for Respondents at 65 (“The fact that the President is the principal owner of the Trump Organization cannot provide it immunity from Congressional investigation.”).
All of which suggests to me it remains possible that the Court could dispose of this case for lack of standing (which, of course, is a non-waivable jurisdictional requirement). The chief justice will undoubtedly want the Court to speak with one voice if at all possible, and standing might be the way to achieve that result. I suspect, moreover, that the justices will have qualms about opening up the federal courts to litigants seeking to delay and disrupt congressional investigations, a point that was well argued by an amicus brief filed on behalf of former House general counsels and congressional staff. See Brief of Former House General Counsels and Former Congressional Staff as Amici Curiae Supporting Respondents (filed Mar. 4, 2020).
We will see if standing comes up in the (telephonic) oral argument now scheduled for May 12.