On Oct. 13, the Jan. 6 committee voted to subpoena Donald Trump. We have been here before.
In 2019, three House committees sought to subpoena then-President Trump’s accountant, Mazars, LLP, to obtain Trump’s tax returns and information about his financial life. Under the precedent then in place, Congress had a clear right to this information, as executive privilege does not protect Trump’s financial information from disclosure.
Nevertheless, in Trump v. Mazars, the Supreme Court held that Congress must justify a subpoena of a president’s information as serving a legislative purpose. It viewed congressional efforts to uncover crimes as a violation of the separation of powers since the executive branch serves that function. The court suggested that the congressional subpoena power might serve as a tool for harassing the president, which it needed to reign in.
Mazars creates a risk that the Republican justices might reject an effort to subpoena Trump if this case does not become moot before it reaches the high court. Justice John Robert’s Mazars opinion suggests that the committee must not only claim that its investigation has a legislative purpose, as it has repeatedly during the hearings, but also show in detail why it cannot adequately legislate without the president’s information. A committee not yet in possession of all the facts might have difficulty satisfying skeptical justices on this score. Since the committee is considering criminal referrals, the heavily Trump-appointed court might well view the committee’s invocation of legislative purpose as a pretext for usurping the executive branch’s criminal investigation function. The committee’s relentless focus on Trump, rather than on the right-wing militias, might also convince the court that the hearings are about damaging Trump politically, not about legislation.
A court that honored precedent would not apply the Mazars test to a subpoena directed at an ex-president. But Dobbs v. Jackson, and for that matter, Mazars itself show that this court does not honor precedent. This court might use the elastic concept of separation of powers to justify extending Mazars to an ex-president.
The committee can greatly increase its chances of having the Supreme Court uphold its subpoena if it justifies the subpoena as informing the congressional exercise of its power to exclude from office those who participate in or aid an insurrection under the 14th Amendment.
The states enacted the 14th Amendment’s Exclusion Clause to keep federal officials who participated in the Confederate rebellion from serving in the government after the Civil War. The committee should announce that it plans to introduce a resolution banning Trump from future office under the 14th Amendment unless, in response to its subpoena, Trump’s timely testimony under oath presents compelling reasons not to. Congress will likely need additional evidence to decide whether it thinks exclusion is appropriate. But the republic will not survive a second Trump term and the committee needs to put exclusion on the table. The fight to exclude, moreover, provides the perfect forum for making the case to the public that President Trump endangers our union under the Constitution.
The Supreme Court is very likely to accept a subpoena justified under the Exclusion Clause. The court regards congressional information gathering as legitimate when it informs the exercise of a power that the Constitution grants to Congress, like the exclusion power. Furthermore, while it may be difficult to convince a skeptical court that understanding the president’s role is important to legislation protecting Congress from attacks by right-wing militias, the Jan. 6 committee’s focus on Trump’s action perfectly fits an inquiry directed at whether Congress should exclude President Trump from office. Indeed, the core of what the committee is doing is inquiring into the extent to which Trump aided and abetted the Jan. 6 insurrection.
Congress cannot risk losing its power to investigate and expose insurrection and rebellion by failing to assert the power most tightly connected with its investigation. This court is hostile. It has three Trump appointees, a justice whose mother was driven from office by a congressional investigation (Neil Gorsuch), and a justice married to an active supporter of efforts to overturn the 2020 election (Clarence Thomas). The committee must rely on all the relevant sources of constitutional power to compel Trump to testify to have a chance.
David M. Driesen is a professor at Syracuse University College of Law.