The U.S. Supreme Court is once again dipping its toes into a legal conflict between congressional investigators and the executive branch. Only this time, the former Trump administration and the current Biden administration are on the same side.
On Monday the court agreed to review a case that tests what limits exist on congressional subpoenas for executive branch documents. It will hear the case next fall.
The case dates back to then-citizen Donald Trump's 2013 agreement with the General Services Administration to lease the Old Post Office Building in Washington, D.C., for conversion into the Trump International Hotel.
Though candidate Trump said he would put his private assets into a blind trust, he didn't do that, and soon into his tenure as president, Democrats on the House Oversight Committee began to investigate what they viewed as potential conflicts of interest in the way the new leadership of the GSA was managing the lease.
When the GSA rejected requests for documents, 17 Democratic members of the 45-person committee turned to an obscure law enacted in 1928 that allows seven members of a House committee to go to court to enforce its power to get agency records and other information.
That is not the usual way that information is subpoenaed by legislative committees. House committees, for instance, usually require a majority of a committee or the chairman of a committee to issue a subpoena. But back in 2017 when Trump took office, the Democrats were in the minority, so the 1928 statute was a workaround for those on the committee seeking the documents.
The case dragged on until the final days of the Trump administration when a three-judge panel of the U.S. Court of Appeals for the District of Columbia ruled 2-1 that the GSA had to comply with the subpoena.
More legal steps followed, including a majority vote by the full appeals court not to reconsider. But significantly, Democratic leader Nancy Pelosi — who by then had become House speaker — never joined the lawsuit. As one Democratic source put it, "No party leader wants to allow a fringe group to subpoena documents without the support of the leadership as a whole."
Perhaps equally significant, when the full appeals court declined to reconsider the panel's decision, there were four dissenters — all among the appeals court's most conservative members. They said that any subpoena right is an institutional right, not a right belonging to individual members of the House.
The Biden administration, facing aggressive subpoenas from a Republican-controlled House, is citing those dissenting opinions. The administration contends that congressional requests for information from executive agencies have traditionally been negotiated between the two branches.
Beyond that, it argues that congressional subpoenas for information are institutional and cannot be asserted by individual members of the House or Senate.
