Deutsche Bank

The Don, The Deutsche and the Doctrine

The political question doctrine refers to the practice in which courts sometimes leave some heated issues to the political branches.

Supreme Court suggests it is seeking a way out of Trump financial records cases

Originally published; Apr. 27, 2020 | LIT Republished; June 12, 2020

The Supreme Court on Monday called for more arguments in two cases over whether President Donald Trump may keep his financial records shielded from congressional investigators.

The request for new briefings ahead of oral arguments in the cases next month suggests at least some justices are eyeing a potential way out of having to issue a decision in the high-profile disputes. The request was included in an unsigned order list.

The court asked the parties to the case and the Department of Justice’s solicitor general to provide briefs on “whether the political question doctrine” applies to the cases. The “political question doctrine” refers to the practice in which courts sometimes leave some heated issues to the political branches.

The court’s order applies to two of the three cases it is reviewing concerning the president’s personal and business financial records. The cases are the first to involve Trump’s personal dealings to make it to the Supreme Court, which now has a 5-4 conservative majority including two of Trump’s own appointees.

The court is considering the cases as Trump is embroiled in a reelection fight against apparent Democratic nominee Joe Biden, the former two-term vice president.

The two cases involve subpoenas issued by Democratic-led House committees to Deutsche Bank and Capital One, as well as Trump’s longtime accounting firm, Mazars USA, seeking his financial records.

Lower courts have upheld the subpoenas, but attorneys for Trump have asked the Supreme Court to reverse those rulings on the grounds that Congress lacked a legitimate legislative purpose when it issued them.

In a third case before the Supreme Court, Trump is seeking to get the justices to reverse a lower court order allowing Manhattan District Attorney Cy Vance Jr. to obtain Trump’s financial records from Mazars as part of a criminal investigation.

In that case, the political question doctrine does not apply because “there isn’t an inter-branch conflict,” according to Willy Jay, a partner at the law firm Goodwin Procter who has argued more than a dozen Supreme Court cases. That case is purely federal versus state, he said.

The three cases will be argued on May 12 and are set to be among the first Supreme Court cases in history to be heard via teleconference, an unprecedented health precaution taken as a result of the spreading coronavirus.

Experts are divided on whether the Supreme Court’s interest in the political question doctrine stands to benefit Trump or hurt him.

Glenn Kirschner, a former federal prosecutor and a legal analyst for NBC News and MSNBC, wrote in a post on Twitter that applying political question doctrine “would give Trump free reign.”

But Steve Vladeck, a constitutional law expert who teaches at the University of Texas’s law school, said that if the court finds that it cannot rule in the cases, “that’s actually bad for *Trump* — as he’s the one who’s suing to try to block Mazars/Deutsche Bank from *voluntarily* complying with these congressional subpoenas.”

Elizabeth Wydra, the president of the Constitutional Accountability Center, a progressive think tank, said in a statement that if the Supreme Court avoids the central issues in the cases, it could result in an effective win for the congressional committees.

But, she said, the committees are “plainly correct” and the court should get to the merits of the cases, or the key legal questions.

“The Court can and should do its job, and decide these cases on the merits — even if in this particular instance avoiding the question might have the correct result of the House obtaining the information it lawfully seeks,” she said.

Donald J. Trump v. Deutsche Bank, AG (1:19-cv-03826)

District Court, S.D. New York

Donald J. Trump v. Deutsche Bank AG (19-1540)

Court of Appeals for the Second Circuit

Who is Willy Jay, Goodwin Procter?

Willy Jay is co-chair of Goodwin’s Appellate Litigation practice and is head of the Litigation Department in the firm’s Washington, D.C. office. Mr. Jay uses his deep experience litigating before the U.S. Supreme Court and U.S. Courts of Appeals to help clients formulate winning appellate strategy. His appellate skill led Benchmark Litigation to name him the nationwide Appellate Lawyer of the Year for 2020. A former Assistant to the Solicitor General and Supreme Court clerk, he has argued 17 cases before the Supreme Court, briefed more than 50 Supreme Court cases on the merits, and briefed more than 150 cases at the certiorari stage. In recent years he argued five of the most significant intellectual-property cases at the Court, involving patent, copyright, and trademark law.

Mr. Jay has handled cases in every federal court of appeals as well. He has filed more than 200 briefs in federal and state appeals courts and argued in nine federal circuits. He has notable expertise in the Federal Circuit, where he has filed more than 60 briefs in patent appeals and been recognized as “Appellate Litigator of the Year by Managing IP. Mr. Jay also regularly counsels clients on appellate strategy at the trial level, preparing and arguing key motions and post-trial briefing before district courts and federal and state administrative agencies.

Mr. Jay is recognized in Chambers USA: America’s Leading Lawyers for Business, where clients praise him for being “‘a rocket scientist’ whose ‘spectacular brief writing’ and ‘keen and analytical mind’ mark him out as a ‘rising star’ at the appellate bar.” Another client noted that Mr. Jay “‘is an extraordinary litigator’ who ‘has a unique way of synthesizing complex arguments and making them understandable.’” Mr. Jay is also listed in Legal500 and Best Lawyers in AmericaLaw360 named him an “Appellate MVP.” He has been named “Litigator of the Week” by the AmLaw Litigation Daily and a “Rising Star” by both the National Law Journal and Law360.

Mr. Jay has particular experience in appellate cases involving intellectual property (including patent, copyright, and trademark law), financial services, administrative law (with a particular focus on pharmaceutical regulation), environmental law, class action practice, federal preemption of state law, and the First Amendment (including campaign finance regulation, election law, and election crimes).

The Don, The Deutsche and the Doctrine
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