The legal ability of the House to conduct investigations is firmly grounded in Article I, Section 8 of the Constitution, which authorizes Congress to legislate to the extent “necessary and proper” relative to its enumerated powers. Fact finding is an essential part of legislation. That is the reason the case law on investigations and the separation of powers is tied to the need for legislation.
The textual basis for Trump’s claim of immunity is . . . nowhere in Article II. It simply doesn’t exist. I’m confident there is no basis for it in the debates at the Convention, either. If you’re a right-wing member of the Supreme Court, and you claim to be an originalist, that has to be a source of embarrassment.
Immunity can only be viewed as a judicial gloss, the likes of which have been attacked mercilessly by originalists in the past. As a matter of logic and practice, it does make some sense in limited circumstances. In this case, however, the burdens put on Trump as a result of demands for records that are not actually in his possession are minimal, and there is a reasonable nexus to proposed legislation in the record. The only way for the Court to get around it is to do the kind of examination of the motives of the House that it rejected of the president in the Muslim ban case. That would be a different kind of embarrassment.
These cases aren’t even close. The Court should never have heard them. If the Court ultimately finds for Trump, it will be proof that, no matter what the Chief Justice says, partisan politics rule in our judiciary.