On Oct. 21, the House issued a subpoena to former President Donald Trump requiring him to testify before the Jan. 6 committee and to produce documents about his role in the Capitol attack. The House of Representatives serves, as the common 18th-century phrase had it, as the “grand inquest of the nation,” a representative body charged with looking into abuses of the public trust, publicizing its findings and contemplating remedies. It is hard to imagine anything more central to the House’s constitutional role than thoroughly investigating an attempt to overthrow the government by force. The Trump subpoena clearly aids that function.
That defiance will set up a dispute between Congress and a former president. But why is everyone talking about the judiciary?
There is little doubt that Trump will attempt to defy the subpoena, just as he consistently has done his best to frustrate all attempts to oversee his conduct in office. That defiance will set up a dispute between Congress and a former president. But why is everyone talking about the judiciary? Why, for example, does this New York Times story come with a headline reading “Jan. 6 Panel Subpoenas Trump, Setting Up Legal Battle over Testimony”?
The fact that, in this conflict between Congress and a former president, political observers’ thoughts immediately turn to the courts illustrates just how central the judiciary has become to American politics. Rather than simply defy the subpoena and see what the House does next, Trump is likely to sue and ask a court to quash it. Even if he loses, as he probably will, the dispute will take many months if not years to resolve. If Democrats lose control of the House before a court enters final judgment, a new Republican majority almost certainly will withdraw the subpoena. In other words, simply by going to court, Trump can most likely ensure that he never has to comply. Congress’s legitimate demands for information about a matter of the utmost national significance will be frustrated.
But it doesn’t have to be that way. Why should the courts be open to a lawsuit like Trump’s in the first place? When courts issue subpoenas (as many have to Trump and his businesses over the years), no one thinks that the subpoenaed party can run to the legislature asking it to intervene and quash the subpoena. Here, a duly authorized subpoena has been issued; Trump has a duty to respond to it. If he thinks he has a legal privilege not to disclose some of the subpoenaed information, he can raise that with the House, just as a party responding to a court-issued subpoena can challenge the scope of the subpoena before the court. There is no need for another institution to poke its nose into the matter.
What would this look like in practice? When Trump runs to the courts, they should say that this is a nonjusticiable political question, meaning that it is not suitable for judicial resolution. They should toss the case on that ground, decline to opine on the merits of the House’s subpoena, and refuse to enjoin enforcement of the subpoena while Trump appeals. If Trump wants to defy the subpoena, he should have to do so in contempt of Congress, at his own peril.
If the House does hold Trump in contempt, it could use its sergeant-at-arms to arrest him itself. Alternatively, it could refer him to the Justice Department for prosecution under the contempt of Congress statute (yes, the same one that Steve Bannon was convicted under). At that point, Trump undoubtedly would argue that the subpoenas are invalid, but note how different the setting would be: When a judge rightly rejects his argument, Trump would be convicted of a crime carrying jail time. Rather than using the courts to delay compliance at no cost to himself, Trump instead would have to open himself to criminal liability, which he could escape only by convincing a judge he had the better legal argument about whether he violated the contempt of Congress statute. A judiciary that took congressional power seriously would force Trump to go that route.
Alas, that is not the judiciary that we have. As we have both written, the judiciary repeatedly has used cases arising out of congressional oversight disputes as opportunities to aggrandize itself at Congress’s expense. And now we can already see that dynamic beginning to play out again.
Courts are not designed to play such a central function in American constitutional politics. The Constitution does not condition Congress’s power to investigate on getting a court’s permission. Courts are not the only, or even the best, remedy to congressional overreach, when it exists. Yet, because of the courts’ continued project of self-aggrandizement, the federal judiciary occupies a privileged position in the American constitutional system. By embracing the idea that they are the ultimate arbiter of political disputes, courts and judges position themselves as standing above separation-of-powers disputes—that is, they claim to be neutral arbiters setting the ground rules for other governing institutions. But this is a decidedly non-neutral posture: it empowers the courts themselves and consistently disempowers Congress.
Not every aspect of constitutional politics creates an actionable question for a court. Courts are designed to be a co-equal branch with Congress and the Executive branch, not the institution that decides when other institutions may govern. Congress — the first branch of government — has taken the extraordinary step of exercising its broad investigatory powers and sending a subpoena to a former president to determine his role in a violent insurrection that tried to prevent a peaceful transition of power. If Trump is allowed to sue to quash the subpoena, the courts in effect substitute their judgment for Congress’s. That is not their constitutional role. The courts should sit this one out.