A plea for restraint from Congress

A plea for restraint from Congress
© Stefani Reynolds

The Supreme Court essentially held that every state prosecutor has more investigative authority over a president than a chamber of Congress in a recent ruling. I believe it is wrong to impose extra burdens on Congress, even as I agree that these were political investigations. Indeed, we must never forget that the Constitution authorizes the federal government to exercise powers that can be abused. That the House abused its power of inquiry does not mean it lacked authority to demand financial records of President TrumpDonald John TrumpLincoln Project ad dubs Jared Kushner the 'Secretary of Failure' Pence: Chief Justice Roberts 'has been a disappointment to conservatives' Twitter bans Trump campaign until it deletes tweet with COVID-19 misinformation MORE. Not all abuses of power are unconstitutional.

In Donald Trump versus Cyrus Vance, the Supreme Court did not impose any meaningful restraints on the investigation in New York. The Supreme Court declared that state prosecutors may not use subpoenas to harass a president, act out of malice, or attempt to influence or impede executive actions. But these restraints will likely prove illusory. But in Donald Trump versus Mazars, the Supreme Court did impose a stricter standard for the investigations by Congress of current presidents, listing a range of vague factors for lower courts to consider as they decide whether custodians of his records have to satisfy various subpoenas from the House.

What happens next? Bet on further litigation extending these twin dramas beyond the election. If Trump is defeated, then I would not be surprised if these inquiries cease. No one with an ounce of common sense denies that these are political investigations, in the sense that the opposition party is seeking to embarrass and enmesh the president. Indeed, the justices had acknowledged as much with the Mazars case, claiming that they were not “blind” to the fact that such subpoenas are not part of ordinary legislative inquiry efforts but instead reflect a clash between political rivals.

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However, to say that these are political disputes and to say, as I believe, that these are abuses of power by Congress, is not to say that these are unconstitutional. I believe that Congress has broad powers of legislative inquiry. No subject matter under the sun is beyond its reach, because in addition to its considerable legislative authority, Congress has also been granted the power to propose amendments to the Constitution.

Either chamber could require candidates to disclose tax returns, private speeches for banks, and medical records as a prelude to enacting either laws or amendments. That such legislation or amendments are unlikely to pass in our polarized environment is now irrelevant. The legislative power of investigation does not turn on whether legislation is likely to pass, and especially when no one can say what shape the proposal will take.

Moreover, Congress is hardly the only branch that might misuse its inquiry power. Federal prosecutors have an awesome investigative authority, and with such power comes the possibility of abuse. Many people, including those hounded by special counsels or independent prosecutors, believe that federal prosecutors can abuse their investigative authority. However, the Justice Department is a professional and responsible organization. Its attorneys are not so prone to abusing their investigative authority.

But I am afraid that the same may not be true of Congress. Whereas most federal staffers wish to be viewed as independent, no one supposes that is true of most lawmakers in the House and Senate. Thus, if the investigative authority of Congress is as broad as the Supreme Court says it is, and as I believe it is, then lawmakers must learn to exercise some restraint.

If it is easy to subpoena private records from Trump, who is next? Should the Senate investigate Nancy Pelosi and her wealth, or Joe Biden and his health, or Hunter Biden and his foreign dealings? Should the House now investigate me for criticizing the partisan nature of its request for the tax returns of the president and claim that it wishes to consider a bill dealing with law professors? Should the Senate investigate sitting Supreme Court justices who issue unpopular opinions amid controversial cases?

Great power comes with great responsibility to wield it carefully. I would be delighted with more transparency into the finances of Trump, just as I would be pleased with more insight into the health of Biden. But I do not believe Congress should use such considerable investigative power as a tool to pursue nakedly partisan ends. If Congress devolves into a cycle of subpoenas, that does not bode well. A war of all against all is not what we need in an hour when the country is already severely fractured.

Saikrishna Prakash is a law professor at University of Virginia and a senior fellow at the Miller Center of Public Affairs, and the author of “The Living Presidency: An Originalist Argument Against Its Ever Expanding Powers.”