This week, the Supreme Court decided Trump v. Mazars. That case involved congressional subpoenas for financial information related to President Trump. It did not expressly involve a subpoena for the President’s tax return information. The House has brought a separate lawsuit for that information, which remains pending in front of a federal district court. See Committee on Ways & Means, House of Representatives v. Steven Mnuchin, Department of Treasury (D.D.C., Case No. 19-cv-1974) (McFadden, J.).

This post explains how Mazars might bear on two key issues in Mnuchin. The first issue relates to whether the House has standing to sue the executive branch, as the House has done so in Mnuchin. The case law is unclear on whether the House suffers the “injury in fact” needed to sustain a lawsuit when its subpoena gets defied. Mazars only arguably bears on that question.

On a second issue — whether the House subpoena for President Trump’s tax return information is valid — Mazars is much more relevant. Mazars sets forth substantive standards that will apply to the House subpoena for President Trump’s tax return information.

1. Standing. Judge McFadden has paused the Mnuchin case until the D.C. Circuit resolves House v. McGahn. The D.C. Circuit in McGahn initially held that Congress lacks standing to sue the executive branch. But the court has now taken up the case en banc. The oral arguments suggest that the D.C. Circuit will find that Congress can maintain lawsuits against the executive branch. See Charlotte Butash & Margaret Taylor, Lawfare (Apr. 29, 2020) (concluding that the en banc panel “seemed skeptical” about the executive branch’s argument that Congress cannot pursue lawsuits to vindicate its interests).

But the Supreme Court has never held that Congress enjoys the power to sue the executive branch, whether over a subpoena or otherwise. See Grewal, Congressional Subpoenas in Court, 98 N.C. L. Rev. 1043 (2020). Thus, if the D.C. Circuit rules in favor of the House in McGahn, that probably will not end the controversy. McGahn may head to the Supreme Court, which would further delay the Mnuchin tax returns case.

Mazars does not indicate how the Supreme Court would address the congressional standing issues raised in McGahn. Private parties (Trump and his family members), not Congress, brought the lawsuit in Mazars.* See Slip Op. at 5. There is no serious doubt that courts can decide major separation of powers questions when a private party initiates a lawsuit, even if the branches themselves cannot sue each other. See Raines v. Byrd, 521 U.S. 811, 827 (1997). Mazars thus does not tell us how the standing issues will be resolved in McGahn or, by extension, in Mnuchin. We will have to wait and see.

2. Merits. If Mnuchin gets to the merits, Mazars will become highly relevant. The Court in Mazars warned that “Congressional subpoenas for the President’s personal information implicate weighty concerns regarding the separation of powers.” Slip Op. at 18. Those concerns would arise even if the President’s information is held by a third party. See id. at 17 (“[S]eparation of powers concerns are no less palpable here simply because the subpoenas were issued to third parties. Congressional demands for the President’s information present an interbranch conflict no matter where the information is held.”). In Mazars, the Court listed numerous principles that judges should consider before they bless a congressional subpoena directed towards the President. See id. at 18–20.

Those principles extend easily to the Mnuchin lawsuit. As in Mazars, the House in Mnuchin seeks personal information from the President (his tax return information). Thus, if the court in Mnuchin reaches the merits, it must wrestle with separation of powers concerns. Mazars calls for “careful analysis” of several factors, rather than casual deference to Congress. Slip Op. at 18. The House’s prior claims that it is entitled to President Trump’s tax return information as a matter of constitutional or statutory right will likely be rejected. The merits issues in Mnuchin will thus be far closer than some commentators have previously suggested. See also Grewal, The President’s Tax Returns, 27 Geo. Mason L. Rev. 439 (2020) (explaining legal requirements associated with congressional subpoenas for tax return information).

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Comments welcome. This post may be updated.

* In Mazars, the Court ordered the parties to brief whether “the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” It is unclear what prompted the Court’s order. The Court may have been concerned that the Trump family’s lawsuit might have been properly characterized as a lawsuit against Congress itself, rather than as a lawsuit against Mazars. Whether a lawsuit may be properly maintained against Congress presents significant constitutional questions. In Eastland v. United States Servicemen’s Fund, the Court, with little analysis, blessed some lawsuits against Congress. See 421 U.S. 491, 501 n.14 (1975). The Court in Mazars may have wanted a more fulsome discussion of the issues.

In any event, each party in Mazars agreed that the case was justiciable, and the Court accepted the parties’ view, without affirmatively endorsing it. See Mazars, Slip Op. at 15 (“[T]he parties agree that this particular controversy is justiciable.”). The executive branch, in its brief, emphasized that Mazars did not present the same issues that would arise in a lawsuit initiated by Congress against the executive branch. See Supplemental Brief of the United States, p. 1 (May 8, 2020) (“inter-Branch informational suits are not traditionally thought to be capable of resolution through the judicial process”) (cleaned up). The Court in Mazars did not address the executive branch’s argument.

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