Trump v. Mazars USA, LLP

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.