Can a congressional committee subpoena the records of the President of the United States, when those records are unprivileged and held by a third party?
The Supreme Court will determine whether a congressional committee may subpoena a third-party for the financial records of the President of the United States. The United States Courts of Appeals for the District of Columbia and the Second Circuit have both held that congressional committees did not exceed their constitutional authority when they issued subpoenas to President Donald Trump’s accountant and several banks for his personal financial records, because those subpoenas were related to legitimate legislative purposes. Petitioner President Trump argues that Congress may not issue subpoenas for the documents of a sitting President under the constitutional doctrine of separation of powers. Respondents, three Committees of the House of Representatives, argue that Congress has long exercised investigative power over the President as part of its legislative function. This case will likely affect the number and scope of future congressional subpoenas for a President’s personal records.
Questions as Framed for the Court by the Parties
Whether the Committee on Oversight and Reform of the U.S. House of Representatives has the constitutional and statutory authority to issue a subpoena to the accountant for President Trump and several of his business entities demanding private financial records belonging to the President.
On May 16, 2018, the Acting Director of the Office of Government Ethics alerted the Deputy Attorney General to a discrepancy in one of the financial disclosure reports President Trump filed according to the Ethics in Government Act of 1978. Trump v. Mazars at 3–4. That discrepancy related to a payment he omitted from a report he made to his personal attorney at the time, Michael Cohen. Id. at 4. From September 2018 to January 2019, Representative Elijah Cummings, in his capacity as both ranking-member and later Chairman of the U.S. House of Representatives Committee on Oversight and Reform, sent three letters to White House Counsel seeking documents relating to payments made to Mr. Cohen. Id. at 5.
In February 2019, White House Counsel responded to Chairman Cummings by offering to let his Committee review some related financial documents on a limited basis. Id. Chairman Cummings rejected this proposal and urged White House Counsel to provide the requested documents on the basis that the Oversight Committee had the authority to exercise oversight on issues of compliance with ethics regulations and because the documents would assist the Committee in determining whether future reforms to ethics laws were necessary. Id. at 5–6.
Later that month Mr. Cohen appeared before the Oversight Committee and produced financial documents prepared by Mazars U.S., LLP. Id. at 6–7. In March 2019, Chairman Cummings wrote to Mazars, requesting a series of documents relating to President Trump’s financial accounts pre-dating his presidency. Id. at 7. Mazars refused. Id. at 8. Chairman Cummings stated that the subpoena he would issue to Mazars would be within the Oversight Committee’s authority to conduct investigations under House Rule X because the purpose of the Oversight Committee’s investigation was to “inform its review of multiple laws and legislative proposals under [its] jurisdiction.” Id. Chairman Cummings identified four subjects the Oversight Committee would be investigating using these subpoenas, including whether the President: (1) engaged in illegal conduct; (2) had conflicts of interest; (3) complied with the Emoluments Clause; and (4) accurately reported his finances to the Office of Government Ethics. Id. On April 15, 2019, the Oversight Committee issued a subpoena to Mazars for financial reports prepared for President Trump and his business entities between 2011 and 2018. Id. at 3, 8–9.
On April 11, 2019, the U.S. House of Representatives Committee on Financial Services and the Permanent Select Committee on Intelligence also issued three different subpoenas requesting a similar set of financial records from Deutsche Bank and Capital One Financial Corporation which pertained to President Trump, members of his family, and his business organizations. Trump v. Deutsche Bank AG at 6. The two committees noted that their subpoenas related to congressional interests in national security, foreign influence, election integrity, and the enforcement of anti-money laundering laws. Id. at 60–62.
President Trump filed two separate lawsuits seeking declaratory judgments to invalidate all of the subpoenas and permanent injunctions to prohibit their enforcement. Id. at 7; Mazars at 9. The United States District Court for the District of Columbia (the “District Court”) ruled on the Mazars subpoena and granted summary judgment in favor of the Oversight Committee. Mazars at 9–10. The district court overseeing the Deutsche Bank and Capital One subpoenas similarly denied the President’s motion for an injunction on all subpoenas. Deutsche Bank AG at 7. Both courts reasoned that the expressed rationales for the investigations by the respective congressional committees satisfied grounds upon which those committees could engage with creating legislation, thereby making the subpoenas legitimate exercises of their authority. Id. at 66; Mazars at 10. The President appealed both district courts’ decisions. Deutsche Bank AG at 7–8; Mazars at 10.
On appeal, President Trump challenged the authority of all three congressional committees to issue the subpoenas as well as the sufficiency of the legislative purposes used to justify the subpoenas. Mazars at 2, 20; Deutsche Bank AG at 36, 49. The United States Court of Appeals for District of Columbia (the “D.C. Circuit”) upheld the District Court’s decision and ruled that the Oversight Committee’s subpoena was justified within both its Constitutional and Congressional authority. Mazars at 2. The D.C. Circuit specifically rejected the contention that the subpoena could not possibly result in valid legislation simply because that legislation would place financial disclosure requirements on the President. Id. at 43. The United States Court of Appeals for the Second Circuit (the “Second Circuit”) similarly affirmed the District Court’s decision to reject the injunction of the Deutsche Bank and Capital One subpoenas because the congressional committees took action relating to the regulation of the financial sector rather than a potential legal violation by the President. Deutsche Bank AG at 5, 64, 66.
On November 15, 2019, the President applied for an emergency stay of the D.C. Circuit’s decision pending an application for certiorari. Brief for the Respondents in Opposition at 9. The United States Supreme Court granted that administrative stay on November 18, 2019. Id. On December 13, 2019, the U.S. Supreme Court granted President Trump’s petition for a writ of certiorari for both the D.C. Circuit case and the Second Circuit case and combined the cases shortly thereafter. Brief for Petitioners, Donald J. Trump et. al. at 1.
THE LEGISLATURE’S CONSTITUTIONAL POWERS
President Trump points to a lack of historical precedent to argue that the Constitution restricts Congress’s power to subpoena a sitting president. Brief for Petitioners, Donald J. Trump, et al. (“Trump”) at 24. President Trump notes that Congress has never successfully issued subpoenas for a president’s private records before, and the Supreme Court “has not hesitated” to invalidate congressional subpoenas that it finds to be overbroad or unreasonable. Id. at 27; 28–31. President Trump argues that the Court typically accounts for a lack of historical practice when it interprets separation of powers disputes between the executive and legislative branches. Id. at 27. Therefore, President Trump contends that this lack of history suggests that Congress has always lacked the power to subpoena a president’s private records. Id. at 32.
Along with historical evidence, President Trump also argues that separation of powers requires a congressional subpoena—unlike a law enforcement subpoena—to investigate a “matter” for which “valid legislation could be had.” Id. at 27. President Trump warns that the Supreme Court must limit the legislative branch’s implied powers that are created by the Necessary and Proper Clause, lest those powers balloon to upset the structural balance of the three branches of government, especially during times of divided government. Id. at 32–34. President Trump contends that, if the Framers intended the legislative branch to have such powers, they would have delegated such authority to Congress in the text of the Constitution itself. Id. at 34–35.
The Committees respond that Congress has repeatedly investigated the President since the time of the Founding. Brief for Respondents, Committees of the U.S. House of Representatives (“The Committees”) at 43; see also id. at 4–5, 8–12. The Committees point to examples ranging from witness subpoenas issued to associates of President Jackson in 1832, to document subpoenas issued to an accountant of President Clinton in 1995. Id. at 7, 11. The Committees argue that this settled historical practice—including presidential cooperation with such investigations—informs the constitutionality of Congressional subpoena power. Id. at 43.
The Committees also argue that the principle of separation of powers actually reinforces the notion that Congress needs investigatory power to fulfill its legislative function. Id. at 42. The Committees contend that this case creates no risk of an overbroad reading of the Necessary and Proper Clause, because Congressional subpoena power is rooted in a different Constitutional clause: Article I, Section 1, which authorizes Congress to create law in the first place. Id. at 42. Indeed, given that this fundamental power is vested in Congress alone, the Committees argue that the Supreme Court has recognized that the judiciary “lacks authority” as a separate constitutional branch to intercede into congressional investigations that are connected to legislation. Id. at 43–44. Finally, the Committees maintain that, although the Constitution does not expressly grant subpoena power to Congress, it still delegates implied powers to each branch—including the Court’s own power of judicial review—and the Constitution implies that Congress must be able to use subpoenas to inform its own legislation. Id. at 43.
REQUIREMENTS OF A VALID CONGRESSIONAL SUBPOENA
President Trump argues that the congressional subpoenas here do not satisfy the three different requirements of a legitimate legislative purpose. Brief for Trump at 35–36. First, President Trump asserts that Congress cannot issue subpoenas that have the purpose of enforcing the law, because those powers are assigned to the executive and the judiciary alone. Id. at 36. In spite of this division, President Trump contends that members of the Committees have admitted that the purpose of the subpoenas to Mazars and to the banks was to expose potential wrongdoing by the president—an investigative objective that is unrelated to any legislative goal. Id. at 37–39. Further, President Trump argues, the Committees only provided post-hoc legislative rationalizations for the subpoenas, which suggest that the subpoenas never had the primary purpose of informing remedial legislation. Id. at 40–44. President Trump contends that the Court should scrutinize the reasons behind these subpoenas given that they relate to the executive branch, lest Congress burden future Presidents with politically motivated subpoenas that distract from the office’s duties. Id. at 44–45; 63–65. Second, President Trump argues that the subpoenas’ purported legislative justifications are unconstitutional, because Congress can neither extend conflict-of-interest laws to the president, nor require the president to make new financial disclosures. Id. at 45–46. While conceding that Congress may exert some control over executive subordinates, President Trump asserts that both legislative objectives would exert unconstitutional control over the president himself, and “alter the basic structure of the Federal government.” Id. at 46–48. Nor, President Trump argues, does Congress have a valid interest in legislating to set limits on emoluments that the President receives or the qualifications for the office. Id. at 49–51. Third, President Trump maintains that these subpoenas are invalid because they would not further their stated legislative objectives either way. Id. at 52. President Trump contends that revealing over a decade of an individual and his family’s personal records will not help Congress to close any large-scale regulatory loopholes, prevent foreign election interference, or oversee the president as commander-in-chief. Id. at 54–55.
The Committees counter that the lower courts correctly determined that the subpoenas issued to the accountants and banks were related to a valid legislative purpose. Brief for Committees at 46. The Committees contend that the subpoenas seek documents that will inform Congress about important topics that it seeks to address, including illegal banking practices, foreign intervention in American politics, and executive conflict-of-interest problems. Id. at 46. Indeed, the Committees point to recent congressional bills that have been introduced to combat these exact legislative concerns. Id. at 46. Likewise, the Committees assert that the subpoenas’ purpose is not to enforce the law for any past wrongdoing by the president, but rather to uncover violations to learn how to legislate more effectively in the future. Id. at 47–49. The Committees explain that, if the stated purpose of the legislation is legitimate, the Supreme Court has never attempted to examine Congress’s “primary purpose” or underlying motivations in issuing the subpoenas. Id. at 50–54. The Committees also argue that there is nothing unconstitutional about creating new laws that require the president to make financial disclosures. Id. at 54–55. Such disclosure requirements, the Committees maintain, do not limit the president’s fitness for office in any way, as many such laws already exist and have been followed by past presidents. Id. To the contrary, the Committees argue that invalidating all these laws would eliminate any legislative oversight of the president, despite the Framers’ intent that the branches check one another. Id. at 55–56. Finally, the Committees argue that although the subpoenas are related to the president, the Court should not impose a higher relevancy standard. Id. at 58. To support this argument, the Committees note that the subpoenas are not addressed to the president himself, they seek unprivileged information, and they impose virtually no burden on the president’s ability to serve the office. Id. at 58.
DELEGATING POWER TO CONGRESSIONAL COMMITTEES
The Committees argue that Congress can give its committees the full power to compel the production of documents by subpoena. Brief for Committees at 68. The Committees argue that the House of Representatives provided advance authorization to the Committees at the beginning of its session, by adopting rules permitting each committee to subpoena documents in order to carry out “any of its functions and duties.” Id. In this regard, the Committees argue that the Oversight Committee in particular is authorized to investigate “any matter” of government activity “at all levels” of government, which, the Committees contend, encompasses the president. Id. at 69. Along with this prior authorization, the Committees also contend that Congress took an additional step by passing Resolution 507 to remove any doubt that it authorized the Committees to carry out their subpoenas of President Trump’s records, as a confirmation of the Committees’ preexisting powers. Id. at 70–72. Accordingly, the Committees assert that the canon of avoidance does not apply to clear questions, and that here Congress clearly and unambiguously delegated subpoena power to the Committees under its own rules. Id. at 72.
In contrast, President Trump argues that the Supreme Court should invoke the canon of constitutional avoidance and thus avoid resolving this case on constitutional grounds. Brief for Trump at 55. Instead, President Trump urges the Court to resolve this case by looking to Congress’s own rules limiting committees. Id. President Trump asserts that Congress did not grant express authority to these congressional committees to issue legislative subpoenas for a sitting president’s personal records. Id. Congress must follow its own rules, and President Trump notes that the Congress’s strongest statement of authorization in this case is a rule that empowers the Oversight Committee to subpoena the “Executive Office of the President,” which does not include the president individually. Id. at 56. Given the separation of powers issues that these subpoenas raise, President Trump asserts that Congress should have made a much plainer statement if it wanted to delegate to its committees this subpoena power over the president’s affairs. Id. at 56–57. Given these principles, President Trump contends that Resolution 507 does not provide the clear statement that the committees would need to properly subpoena the president. Id. at 61–63. President Trump maintains that Resolution 507 does not expand the committees’ power to subpoena the president. Id. at 62. Nor, President Trump contends, can Resolution 507 ratify the committees’ actions after the fact without acknowledging an inherent defect in the subpoenas in the first place. Id. at 62.
POTENTIAL FOR SUBPOENA ABUSE
The Foundation for Moral Law (the “Foundation”) argues, in support of President Trump, that the congressional subpoenas in this cases were designed to harass President Trump, not to consider any legislative purpose. Brief of Amicus Curiae Foundation for Moral Law, in Support of Petitioners at 25. The Foundation warns that if the House can subpoena a president on such attenuated grounds, then no American is safe from potential House harassment. Id. Specifically, the Foundation expresses the concern that in the future a legislative body intolerant to religious doctrine might seek to harass Christians with similarly broad subpoenas. Id. at 24. The Eagle Forum Education & Legal Defense Fund (the “Eagle Forum”), also in support of President Trump, emphasizes that the Committees’ claims of legislative purpose are pretextual and within the ability of the Supreme Court to reject. Brief of Amicus Curiae Eagle Forum Education & Legal Defense Fund, in Support of Petitioners at 15. The Eagle Forum warns of a possible hypothetical future where a Republican-led House of Representatives investigates the financial reports of President Biden and his family, making the act just as politically charged and no less pretextual. Id. at 17.
The Niskanen Center, along with several other conservative organizations and individuals (collectively the “Center”), in support of the Committees, counter that exaggerated concerns over theoretical abuses of power are not enough to overcome the legitimacy of Congress’ power to issue subpoenas. Brief of Amici Curiae Niskanen Center et. al., in Support of Respondents at 16. The Center points out that concern over the potential for congressional overreach via legislation does not rob Congress of its ability to make laws, and similarly the potential for presidential harassment should not be presumed when Congress investigates the Executive Branch’s conduct. Id. Furthermore, the Center argues, outside of subpoenas which fail to have any conceivable legislative purpose, an investigation’s legitimacy and whether it is actually abusive is evaluated by the voting public, not the courts. Id. at 17–18. The Center asserts that investigations are an inherently political aspect of representative government which the American public monitors. Id. at 17. As such, says the Center, the remedy for perceived abuses of legislative power by either party should be left to the powers of democracy. Id. at 18.
BURDENS PLACED ON THE EXECUTIVE
The Christian Family Coalition Florida, Inc. (the “CFC”), asserts in support of President Trump that the subpoenas issued by the Committees create a legitimate risk of serious diversion of President Trump’s attention away from his presidential responsibilities. Brief of Amicus Curiae Christian Family Coalition Florida, Inc., in Support of Petitioners at 4–5. The CFC contends that any reasonable person who is issued a subpoena for all financial records over an eight-year period would be distracted by those subpoenas. Id. at 5. Emphasizing the broad and limitless scope of these subpoenas, the CFC contrasts them against the subpoenas issued against Presidents Clinton and Nixon, which the CFC contends were much more limited in scope. Id. at 7–8. The CFC further argues that President Trump is due the type of blanket presidential immunity contemplated by the Supreme Court in Nixon v. Fitzgerald because the subpoenas are inordinately broad and would distract the President from his duties. Id. at 14.
A group of Separation-of-Powers Law Professors (collectively the “Professors”), in support of the Committees, counter that that because the subpoenas, which were given to third-party institutions, ask for personal records, unrelated to executive actions or decisions, they do not alter the President’s ability to perform his job. Brief of Amici Curiae Separation-of-Powers Law Professors, in Support of Respondents at 29. The Professors emphasize that practically speaking, presidents have many different personal demands on their time which do not rise to the level of distracting the president from his responsibilities. Id. at 30. Furthermore, the Professors assert that the impact on the President’s time must be balanced against Congress’s investigative interests. Id. The Professors point out that if the President’s financial records were subject to civil discovery by a private plaintiff there would be no issue as to the legitimacy of a subpoena, and argue that Congress should not have fewer rights in this case than a private litigant would. Id. at 32–33.
- Ian Millhiser, The Trump Lawsuit Testing the Limits of Presidential Immunity, Explained, Vox (Nov. 19, 2019).
- Adam Liptak, Supreme Court Urged to Allow Release of Trump’s Financial Records, N.Y. Times (Nov. 21, 2019).
- Marty Lederman, Understanding the Two Mazars Subpoena Cases Before the Supreme Court, Just Security (Nov. 25, 2019).