Watching the election coverage last night it had barely become clear that the Democrats were going to take the House before all the talk (on the “mainstream” channels I was surfing) turned to salivating over the ability of House committees to use the subpoena power to get Trump’s tax returns. It was almost indecent. The masks slipped pretty fast. They weren’t attached very well to begin with.
But I’m not 100 percent sure how these tax return subpoenas are going to shake out. I’m familiar with the subpoena power in private litigation. As a lawyer for several decades, I’ve issued plenty of subpoenas. But subpoenas aren’t magic. You don’t necessarily get what you want. They’re just formal requests that obligate the recipient to either a) comply, b) negotiate some acceptable alternative, or c) let a court decide whether compliance is required (a recipient can move to quash or an issuer can move to compel enforcement). In practice, subpoenas are rarely complied with as issued.
Would be curious to hear from someone with expertise on the question of the scope of Congress’s subpoena power. Obviously a congressional committee isn’t a private litigant or even a prosecutor. The scope of its power and discretion in seeking information is going to be different. But is it unlimited? I’m not sure “we’re just looking for something politically damaging” is going to be enough for a subpoena to stand up to judicial scrutiny.
And God help us if it is. Maybe a Senate committee can start launching random subpoenas to Schumer and Pelosi. I’m sure they’ve got some skeletons. Pelosi and her husband have made a fortune. Is that really all on the up and up? Or have there maybe been some fat contracts steered Mr. Pelosi’s way? Foreign financing on some business endeavor? Enquiring minds want to know. I’m not saying there’s anything there. Maybe there’s not. Probably there’s not. But if the subpoena power is an unconstrained political tool, what’s to stop the Republican Senate from checking?
In case you can’t tell, I don’t like where this is going. In truth, I don’t want Nancy Pelosi and her husband pointlessly harassed. Or any other member of Congress for that matter. Or Trump. Washington is enough of an embarrassing circus already. If the House or Senate is going to investigate the behavior of political leaders, there out to be some evidence of a crime (or maybe an ethics violation for investigations within a legislative body) as a basis and a justification for turning its sights on an individual actor. The death knell for a privately issued subpoena is the conclusion that it’s nothing more than a “fishing expedition” and the same rule should hold for Congress. I look forward to watching how the subpoenas for Trump’s tax returns play out. My guess is there will be much litigation, and it is not at all clear to me the Democrats will (or should) prevail.Published in