United States Court of Appeals, District of Columbia Circuit
Donald J. Trump, et al., Appellants
Mazars USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, Appellees
July 12, 2019
from the United States District Court for the District of
Columbia (No. 1:19-cv-01136).
William S. Consovoy argued the cause for appellants. With him
on the briefs were Cameron T. Norris and Stefan C.
Morley Cox, pro se, filed the brief for amicus curiae Duane
Morley Cox in support of appellants.
Douglas N. Letter, General Counsel, U.S. House of
Representatives, argued the cause for appellee Committee on
Oversight and Reform of the U.S. House of Representatives.
With him on the briefs were Todd B. Tatelman, Deputy General
Counsel, Megan Barbero and Josephine Morse, Associate General
Counsel, and Brooks M. Hanner, Assistant General Counsel.
Elizabeth B. Wydra, Brianne J. Gorod, and Ashwin P. Phatak
were on the brief for amicus curiae Constitutional
Accountability Center in support of
intervenor-defendant-appellee Committee on Oversight and
Reform of the U.S. House of Representatives.
M. Mooppan, Deputy Assistant Attorney General, U.S.
Department of Justice, and Mark R. Freeman, Scott R.
McIntosh, and Gerard Sinzdak, Attorneys, were on the brief as
amicus curiae The United States.
Before: Tatel, Millett and Rao, Circuit Judges.
April 15, 2019, the House Committee on Oversight and Reform
issued a subpoena to the accounting firm Mazars USA, LLP for
records related to work performed for President Trump and
several of his business entities both before and after he
took office. According to the Committee, the documents will
inform its investigation into whether Congress should amend
or supplement current ethics-in-government laws. For his
part, the President contends that the Committee's
investigation into his financial records serves no legitimate
legislative purpose, and he has sued to prevent Mazars from
complying with the subpoena. The district court granted
summary judgment in favor of the Committee, and we affirm.
Contrary to the President's arguments, the Committee
possesses authority under both the House Rules and the
Constitution to issue the subpoena, and Mazars must comply.
after the 116th Congress convened on January 3, 2019, the new
U.S. House of Representatives debated and adopted a set of
rules to govern its proceedings. See H.R. Res. 6,
116th Cong. (2019). Like previous Congresses, the 116th
established an oversight committee, the Committee on
Oversight and Reform, which it charged with "review[ing]
and study[ing] on a continuing basis the operation of
Government activities at all levels" and which it
permitted to "conduct investigations" "at any
time . . . of any matter," "without regard to"
other standing committees' jurisdictions. Rules of the
House of Representatives, 116th Cong., Rule X, cls. 3(i),
4(c)(2) (2019) ("House Rules"); see also
id., cl. 1(n) (establishing the Committee on Oversight
and Reform). To "carry out . . . [these] functions and
duties," the Oversight Committee may "require, by
subpoena or otherwise . . . the production of such . . .
documents as it considers necessary." House Rule XI, cl.
case concerns one such subpoena. Issued on April 15 by the
chairman of the House Committee on Oversight and Reform,
Representative Elijah Cummings, to President Trump's
accounting firm, the subpoena requests financial documents
concerning the President and his companies covering years
both before and during his presidency.
order to explain the impetus behind the subpoena, we must go
back to the Ethics in Government Act of 1978. Enacted in the
wake of the Watergate scandal, that statute requires many
aspiring and current government officials, including
presidential candidates and sitting Presidents, to file
financial disclosure reports at various times during their
candidacies and incumbencies. See 5 U.S.C. app. 4
§ 101(a), (c), (d), (f) (requiring "a candidate . .
. for nomination or election to the office of President"
and "the President" to "file a report
containing the information described" in section 102 of
the Act). In their initial reports, presidential candidates
and new Presidents must provide information concerning their
income, assets, liabilities, and employers. See id.
§ 102(b) (requiring "[e]ach report filed pursuant
to subsections (a), (b), and (c) of section 101" to
contain such information). Once in office, sitting Presidents
must file annual reports disclosing that same information
plus details about any covered gifts, real estate and
securities transactions, and blind trusts. See id.
§ 102(a) (requiring "[e]ach report filed pursuant
to section 101(d) and (e)" to contain such information).
Presidential candidates submit their reports to the Federal
Election Commission, see id. § 103(e), while
incumbent Presidents file with the Office of Government
Ethics, an "executive agency" tasked with
"interpreting rules and regulations . . . governing . .
. the filing of financial statements," id.
§§ 103(b), 401(a), 402(b)(3), 402(b)(6).
year, the Office of Government Ethics announced that it had
identified an error in one of the several reports that
President Trump had filed since he became a presidential
candidate in 2015. Specifically, by letter dated May 16,
2018, the Acting Director of the Office of Government Ethics
advised the Deputy Attorney General that, "based on the
information provided" in President Trump's 2018
financial disclosure report (covering calendar year 2017), he
had determined that the President's 2017 financial
disclosure (covering calendar year 2016) omitted "a
reportable liability under the Ethics in Government
Act," namely, "a payment made by Mr. Michael
Cohen," President Trump's former personal lawyer,
"to a third party." Letter from David J. Apol,
Acting Director, Office of Government Ethics, to Rod J.
Rosenstein, Deputy Attorney General, Department of Justice 1
(May 16, 2018) ("Apol Letter"). Because President
Trump's 2018 filing disclosed that in 2017 the President
had reimbursed Cohen for the 2016 payment, the Acting
Director concluded that "the payment made by Mr. Cohen
[was] required to be reported as a liability" before it
was reimbursed. Id. at 1; see also OGE Form
278e, 2017 Annual Report for Donald J. Trump, Part 8 n.3 (May
15, 2018), https://oge.app.box.com/v/Trump2018Annual278
that "Mr. Trump fully reimbursed Mr. Cohen in
months later, then-Ranking Member Cummings wrote to White
House Counsel seeking documents related to President
Trump's payments to Cohen. See Letter from
Elijah E. Cummings, Ranking Member, House Committee on
Oversight and Reform, to Donald F. McGahn II, Counsel to the
President, The White House, and George A. Sorial, Executive
Vice President of the Trump Organization 4-5 (Sept. 12,
2018). That letter remained unanswered as of January 2019,
when Representative Cummings, who in the intervening months
had become Chairman Cummings, reiterated his request in a
second letter. See Letter from Elijah E. Cummings,
Chairman, House Committee on Oversight and Reform, to Pat
Cipollone, Counsel to the President, The White House 1-2
(Jan. 8, 2019). Chairman Cummings also wrote to the new
Director of the Office of Government Ethics, asking him, too,
for "documents related to President Donald Trump's
reporting of debts and payments to his personal attorney,
Michael Cohen." Letter from Elijah E. Cummings,
Chairman, House Committee on Oversight and Reform, to Emory
A. Rounds III, Director, Office of Government Ethics 1 (Jan.
February, White House Counsel responded that the President
would consider permitting the Committee to review, on a
limited basis, a subset of the requested documents, but
Chairman Cummings rejected this proposal as inadequate.
See Letter from Elijah E. Cummings, Chairman, House
Committee on Oversight and Reform, to Pat Cipollone, Counsel
to the President, The White House 1 (Feb. 15, 2019)
("Cummings Feb. 15 Letter") (stating that the
President's offer to "consider providing Committee
staff with the ability to review limited portions of two of
the six categories of documents in camera"
would "not obviate the need . . . to fully comply"
(internal quotation marks omitted)). Citing the Oversight
Committee's status as "the authorizing Committee for
the Office of Government Ethics," the President's
statutory obligation to "file . . . public financial
disclosure report[s]," and Congress's "plenary
authority to legislate and conduct oversight regarding
compliance with ethics laws and regulations," Chairman
Cummings urged the White House "to provide documents
relevant to the Committee's investigation of these
matters." Id. at 7-8. "These documents
will help the Committee determine," he explained,
"why the President failed to report . . . payments and
whether reforms are necessary to address deficiencies with
current laws, rules, and regulations." Id. at
weeks later, Michael Cohen appeared at a hearing before the
Oversight Committee. See Hearing with Michael Cohen,
Former Attorney to President Donald Trump: Hearing Before the
House Committee on Oversight and Reform, 116th Cong.
(Feb. 27, 2019). He testified that he believed, based on his
experience working for President Trump, that the President
had "inflated his total assets when it served his
purposes" in some situations and had "deflated his
assets" in others. Id. at 13 (testimony of
Michael D. Cohen). Several Committee Members questioned
Cohen's credibility; he had, after all, recently pleaded
guilty to various crimes, including lying to Congress.
See, e.g., id. at 7 (statement of Ranking
Member Jim Jordan) ("This might be the first time
someone convicted of lying to Congress has appeared again so
quickly in front of Congress."); id. at 57
(statement of Rep. Michael Cloud) (asking Cohen to
"state what you've been convicted of"). Seeking
to support his testimony, Cohen produced to the Committee
several accounting documents, all of which predated Mr.
Trump's presidency. Two of these documents- 2011 and 2012
"Statements of Financial Condition" for Donald J.
Trump-were prepared by Mazars. See "Donald J.
Trump Statement of Financial Condition" dated June 30,
2011; "Donald J. Trump Statement of Financial
Condition" dated June 30, 2012.
Cummings next wrote to Mazars. In a March 2019 letter, he
explained that the statements of financial condition prepared
by the firm and supplied by Cohen had "raise[d]
questions about the President's representations of his
financial affairs," "particularly [his]
debts," "on these forms and on other
disclosures." Letter from Elijah E. Cummings, Chairman,
House Committee on Oversight and Reform, to Victor Wahba,
Chairman and Chief Executive Officer, Mazars USA, LLP 1 (Mar.
20, 2019) ("Cummings Mar. 20 Letter"). Chairman
Cummings highlighted several "specific concerns,"
including: (1) that "[t]he 2012 Statement of Financial
Condition prepared by [Mazars]" intentionally omitted
over $50 million in assets and $75 million in liabilities
that "then-Candidate Trump" later disclosed on his
"first publicly filed financial disclosure made . . . in
2015," (2) that read together, the 2012 statement of
financial condition and 2015 financial disclosure indicated
that Deutsche Bank had reduced the interest rate it was
charging on a $125 million loan to then-Candidate Trump,
potentially saving him "about $625, 000" each year,
and (3) that "both the 2011 and 2012 financial
statements" noted that, before becoming a presidential
candidate, Mr. Trump "ha[d] pledged" almost $20
million to a "former partner in the Trump World Tower at
United Nations Plaza," who, "[a]ccording to
contemporaneous reports," was possibly "the Korean
conglomerate Daewoo" or a "German financial
institution." Id. at 2-3. "To assist [its]
review of these issues," the Committee requested several
categories of documents relating to President Trump's
accounts going back to January 2009. Id. at 4.
responded that it could not provide the requested documents
voluntarily. See Letter from Jerry D. Bernstein,
Partner, Blank Rome LLP, to Elijah E. Cummings, Chairman,
House Committee on Oversight and Reform 1 (Mar. 27, 2019).
So, on April 12, Chairman Cummings sent a memorandum to his
fellow committee members explaining his intention to issue,
pursuant to the Committee's authority under House Rule X
to "investigate 'any matter at any time, '"
a subpoena to Mazars. Memorandum from Chairman Elijah E.
Cummings to Members of the Committee on Oversight and Reform
3 (Apr. 12, 2019) ("Cummings Memo"). The Chairman
identified four subject matters that, in his view,
"[t]he Committee has full authority to
investigate": (1) "whether the President may have
engaged in illegal conduct before and during his tenure in
office," (2) "whether [the President] has
undisclosed conflicts of interest that may impair his ability
to make impartial policy decisions," (3) "whether
[the President] is complying with the Emoluments Clauses of
the Constitution," and (4) "whether [the President]
has accurately reported his finances to the Office of
Government Ethics and other federal entities."
Id. at 4. "The Committee's interest in
these matters," he stated, "informs its review of
multiple laws and legislative proposals under [its]
subpoena issued three days later. It requested, "[w]ith
respect to Donald J. Trump" and several of his
affiliated businesses-including the Trump Organization, the
Trump Corporation, and the Trump Old Post Office
LLC-"[a]ll statements of financial condition, annual
statements, periodic financial reports, and independent
auditors' reports prepared, compiled, reviewed, or
audited by Mazars . . . or its predecessor." Subpoena to
Mazars USA, LLP, Apr. 15, 2019 ("Subpoena").
Furthermore, with respect to Mazars's "preparation,
compilation, review, or auditing" of those documents,
the subpoena requested all related "engagement
agreements or contracts" "[w]ithout regard to
time"; "[a]ll underlying, supporting, or source
documents and records . . . or any summaries of such
documents"; and all related "memoranda, notes, and
communications," including "communications related
to potential concerns that . . . information . . . provided
by Donald J. Trump or . . . the Trump Organization [was]
incomplete, inaccurate, or otherwise unsatisfactory."
Id. Narrowed somewhat from the Chairman's
initial request to Mazars, the subpoena sought documents from
"calendar years 2011 through 2018" "[u]nless
otherwise noted." Id. The subpoena instructed
Mazars to comply by April 29.
that date arrived, however, President Trump and several of
his business entities (collectively, the "Trump
Plaintiffs") filed this lawsuit seeking a declaratory
judgment invalidating the subpoena and a permanent injunction
prohibiting its enforcement. See Complaint at 13,
Trump v. Committee on Oversight & Reform of U.S.
House of Representatives, 380 F.Supp.3d 76 (D.D.C. 2019)
(No. 19-cv-01136) ("Complaint"). The Trump
Plaintiffs also moved for a preliminary injunction, and while
that motion was pending, the Committee agreed to defer
Mazars's deadline to comply with the subpoena.
district court worked quickly to provide the parties with an
answer. Following the Supreme Court's direction to
"give the most expeditious treatment" to suits
seeking to enjoin congressional subpoenas, Eastland v.
U.S. Servicemen's Fund, 421 U.S. 491, 511 n.17
(1975), the court "consolidate[d] [its] hearing on the
preliminary injunction" with a resolution of the merits
by "treat[ing] the parties' briefing"-which
raised no disputes of material fact-"as cross-motions
for summary judgment," Trump, 380 F.Supp.3d at
88, 90; see also Fed. R. Civ. P. 65(a)(2)
(permitting the court, "[b]efore or after beginning the
hearing on a motion for a preliminary injunction," to
"advance the trial on the merits and consolidate it with
the hearing"). Then, after explaining that its
"analysis must be highly deferential to the legislative
branch," Trump, 380 F.Supp.3d at 91, the court
concluded that each of the four investigative topics set
forth in Chairman Cummings's April 12 memorandum
represents "a subject 'on which legislation could be
had, '" id. at 94 (quoting McGrain v.
Daugherty, 273 U.S. 135, 177 (1927)). The court thus
granted summary judgment in favor of the Oversight Committee.
See id. at 105.
Trump Plaintiffs now appeal, challenging the district
court's grant of summary judgment to the Committee
(though not its decision to treat the briefs as cross-motions
for summary judgment). By agreement of the parties, Mazars
need not comply with the subpoena during the pendency of this
expedited appeal. See Oral Arg. Tr. 129. After oral
argument, and at the court's invitation, the Department
of Justice filed an amicus brief, and the Trump Plaintiffs
and Committee responded. Our review is de novo. See Teva
Pharmaceuticals USA, Inc. v. Food & Drug
Administration, 441 F.3d 1, 3 (D.C. Cir. 2006)
(reviewing de novo "the district court's legal
determination" made after "consolidat[ing] [a]
motion for a preliminary injunction with a final decision on
hardly the first subpoena Congress has issued- legislative
subpoenas are older than our country itself-and the parties
draw upon the historical record to support their claims.
Accordingly, before digging into the details of this case, we
think it necessary to place the challenged subpoena in
story of legislative subpoenas extends all the way back to
the "emergence of [the English] Parliament," when
that body, as part of its campaign to "challenge the
absolute power of the monarch," asserted "plenary
authority" to hold offending parties in contempt.
Watkins v. United States, 354 U.S. 178, 188 (1957).
Beginning in the late seventeenth century, Parliament armed
"a host of committees" with the "powers to
send for persons and papers" in aid of their
"investigat[ions] . . . [into] the operations of
government"- from "the conduct of the war in
Ireland" to "[t]he unwarranted proclamation of
martial law . . . by a commissioner of the East India
Company" to "the State of the Gaols of [the]
Kingdom." James M. Landis, Constitutional
Limitations on the Congressional Power of Investigation,
40 Harv. L. Rev. 153, 162-63 (1926). Across the Atlantic,
too, "[t]he privileges and powers of the [House of]
Commons were naturally assumed to be an incident of the
representative assemblies of the Thirteen Colonies."
Id. at 165.
the Revolutionary War and the Constitutional Convention, the
U.S. Congress wasted little time in asserting its power to
use compulsory process to investigate matters of national-and
potentially legislative-importance. The House of
Representatives opened the first such investigation in 1792,
when it passed a resolution appointing a committee "to
inquire into the causes of the failure of the late expedition
under Major General St. Clair," whose troops had
recently suffered an embarrassing defeat in the Northwest
Territory, and "empowered" that committee "to
call for such persons, papers, and records, as may be
necessary to assist [its] inquiries." 3 Annals of
Congress 493 (1792); see also George C. Chalou,
General St. Clair's Defeat, 1792-93, in
1 Congress Investigates: A Critical and Documentary
History 1, 2 (Roger A. Bruns et al. eds., rev. ed.
2011). More investigatory committees, similarly empowered to
issue subpoenas, followed. For example, in 1814, the House
directed an inquiry "into the causes of the success of
the enemy"-that is, the British-"in his late
enterprises" in burning the Capitol, 28 Annals of
Congress 310 (1814), and, in 1859, the Senate established a
select committee to "inquire into the facts
attending" John Brown's raid on Harpers Ferry and to
"report whether . . . and what legislation may . . . be
necessary . . . for the future preservation of the
peace," Cong. Globe, 36th Cong., 1st Sess. 141 (1859).
until 1880 did "the first case reach [the Supreme]
Court to challenge the use of compulsory process as a
legislative device." Watkins, 354 U.S. at 193.
In that case, Kilbourn v. Thompson, 103 U.S. 168
(1881), the Court held that the House had exceeded its
investigatory authority by opening an inquiry into the
bankruptcy proceedings of a firm into which the United States
had invested money. The Court explained that Congress's
sole route to a remedy in that bankruptcy proceeding, like
that of all other dissatisfied creditors, was "by a
resort to a court of justice." Id. at 193.
Accordingly, because under those circumstances the
House's investigation "could result in no valid
legislation," id. at 195, the Court concluded
that the House had impermissibly "assumed a power which
could only be properly exercised by another branch of the
government," id. at 192.
Kilbourn created any doubt about Congress's
power to conduct legislative investigations, the Supreme
Court dispelled that cloud in a pair of cases arising out of
alleged corruption in the administration of President Warren
G. Harding. In the first, McGrain v. Daugherty, the
Court considered a subpoena issued to the brother of
then-Attorney General Harry Daugherty for bank records
relevant to the Senate's investigation into the
Department of Justice. Concluding that the subpoena was
valid, the Court explained that Congress's "power of
inquiry . . . is an essential and appropriate auxiliary to
the legislative function," as "[a] legislative body
cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation
is intended to affect or change." 273 U.S. at 174- 75.
It mattered not that the Senate's authorizing resolution
lacked an "avow[al] that legislative action was had in
view" because, said the Court, "the subject to be
investigated was . . . [p]lainly [a] subject . . . on which
legislation could be had" and such legislation
"would be materially aided by the information which the
investigation was calculated to elicit." Id. at
176-77 (internal quotation marks omitted). That was enough.
Although "[a]n express avowal" of the Senate's
legislative objective "would have been better," the
Court admonished that "the presumption should be
indulged that [legislation] was the real object."
Id. at 178.
years later, in Sinclair v. United States, 279 U.S.
263 (1929), the Court echoed many of the same refrains. In
this second case, Harry Sinclair, the president of an oil
company, appealed his conviction for refusing to answer a
Senate committee's questions regarding his company's
allegedly fraudulent lease on federal oil reserves at Teapot
Dome in Wyoming. The Court, acknowledging individuals'
"right to be exempt from all unauthorized, arbitrary or
unreasonable inquiries and disclosures in respect of their
personal and private affairs," id. at 292,
nonetheless explained that because "[i]t was a matter of
concern to the United States," "the transaction
purporting to lease to [Sinclair's company] the lands
within the reserve cannot be said to be merely or principally
. . . personal," id. at 294. The Court also
dismissed the suggestion that the Senate was impermissibly
conducting a criminal investigation. "It may be conceded
that Congress is without authority to compel disclosures for
the purpose of aiding the prosecution of pending suits,"
explained the Court, "but the authority of that body,
directly or through its committees, to require pertinent
disclosures in aid of its own constitutional power is not
abridged because the information sought to be elicited may
also be of use in such suits." Id. at 295.
Court returned to the question of Congress's
investigative authority during the Cold War, as
"investigations into the threat of subversion of the
United States Government" began to raise "novel
questions [about] the appropriate limits of congressional
inquiry" "into the lives and affairs of private
citizens." Watkins, 354 U.S. at 195. At first,
the Court avoided these thorny First Amendment issues by
resolving cases on other grounds. In United States v.
Rumely, the Court overturned a defendant's
contempt-of-Congress conviction for refusing to answer a
congressional committee's request for "the names of
those who made bulk purchases" of "books of a
particular political tendentiousness." 345 U.S. 41, 42
(1953). Rather than reach the "[g]rave" First
Amendment question posed by such an inquiry, the Court
interpreted the House's authorizing resolution, which
instructed the committee to study "lobbying
activities," as failing to permit an investigation into
the sale of books. Id. at 45, 48. And a few years
later, in Watkins v. United States, the Court
overturned another contempt conviction, this time holding
that the defendant, a labor organizer who had refused
"to testify about persons who may in the past have been
Communist Party members," 354 U.S. at 185, had received
insufficient notice of "the 'question under
inquiry'" at his congressional hearing, id.
at 214 (quoting 2 U.S.C. § 192). In that case, the Court
took the opportunity to emphasize that although "there
is no congressional power to expose for the sake of
exposure," courts should avoid "testing the motives
of committee members for this purpose." Id. at
200. Rather, the crucial inquiry is whether a
"legislative purpose is being served." Id.
Court soon reached the First Amendment issue it had been
avoiding. In Barenblatt v. United States, the Court
considered the case of a teacher convicted of criminal
contempt for refusing, when testifying before a Subcommittee
of the House Committee on Un-American Activities, to answer
questions about his "past or present membership in the
Communist Party." 360 U.S. 109, 126 (1959). Unlike the
Watkins defendant, the Barenblatt defendant
had been "sufficiently apprised of the topic under
inquiry" by "other sources of . . .
information," such as the Subcommittee
"Chairman's statement as to why he had been
called" to testify and the questions posed by the
Subcommittee to previous witnesses. Id. at 124-25
(internal quotation marks omitted). Proceeding, then, to the
"precise constitutional issue"- namely,
"whether the Subcommittee's inquiry . . .
transgressed the provisions of the First Amendment"-the
Court explained that although "Congress may not
constitutionally require an individual to disclose his . . .
private affairs except in relation to" "a valid
legislative purpose," such a purpose was present in that
case. Id. at 127. Congress's "wide power to
legislate in the field of Communist activity . . . and to
conduct appropriate investigations in aid thereof is hardly
debatable," said the Court, and "[s]o long as
Congress acts in pursuance of its constitutional power, the
Judiciary lacks authority to intervene on the basis of the
motives which spurred the exercise of that power."
Id. at 127, 132. Thus, given "the governmental
interests . . . at stake," the Court concluded that
"the First Amendment [had] not been offended" and
affirmed the defendant's conviction. Id. at 134.
too, have often been the subjects of Congress's
legislative investigations, though fewer of these have
required judicial intervention. Historical examples stretch
far back in time and broadly across subject matters. In 1832,
for example, the House vested a select committee with
subpoena power "to inquire whether an attempt was made
by the late Secretary of War . . . [to] fraudulently [award]
. . . a contract for supplying rations" to Native
Americans and to "further . . . inquire whether the
President . . . had any knowledge of such attempted fraud,
and whether he disapproved or approved of the same."
H.R. Rep. No. 22-502, at 1 (1832) (internal quotation marks
omitted). Shortly after World War II, Congress's Pearl
Harbor Committee published a joint report exonerating the
President of "charges" that he had "tricked,
provoked, incited, cajoled, or coerced Japan into attacking
this Nation." S. Doc. No. 79-244, at xiii, 251 (1946).
In 1987, the House established a committee to investigate the
Iran-Contra Affair, including "the role of the
President." H.R. Rep. No. 100-433, at 21 (1987). During
that investigation, President Reagan declined to assert
executive privilege, going so far as to furnish
"relevant excerpts of his personal diaries" to
Congress. Morton Rosenberg, Congressional Research Service,
RL 30319, Presidential Claims of Executive Privilege:
History, Law, Practice and Recent Developments 14 (Aug.
21, 2008) (internal quotation marks omitted). And in the
1990s, first the House and Senate Banking Committees and then
a Senate special committee investigated President and Mrs.
Clinton's involvement in the Whitewater land deal and
related matters. See Douglas L. Kriner & Eric
Schickler, Investigating the President 56-62 (2016)
(describing the "three-year congressional investigation
of Whitewater"); see also S. Res. 120, 104th
Cong. (1995) (establishing the Senate Special Committee to
Investigate Whitewater Development Corporation and Related
Matters). Thanks to a last-minute compromise between the
White House and the Senate, the courts were kept out of a
dispute over whether the special committee could subpoena
meeting notes taken by President Clinton's former lawyer.
See Louis Fisher, Congressional Research Service, RL
31836, Congressional Investigations: Subpoenas and
Contempt Power 16-18 (Apr. 2, 2003).
the historical examples, perhaps the most high-profile
congressional investigation into a President-and the only one
we have found that produced an appellate-level judicial
opinion-was Congress's investigation into President
Nixon. The Senate created the Senate Select Committee on
Presidential Campaign Activities, better known as the Senate
Watergate Committee, to investigate "illegal, improper,
or unethical activities engaged in by any
persons" involved in a campaign "conducted by . . .
any person seeking nomination or election . . . for
the office of the President of the United States" during
the "Presidential election of 1972." S. Res. 60,
119 Cong. Rec. 3255, 93rd Cong. § 1(a) (1973) (emphasis
added). In Senate Select Committee on Presidential
Campaign Activities v. Nixon, our court was asked to
decide whether President Nixon had "a legal duty to
comply with" a subpoena issued by the Senate Watergate
Committee for "taped recordings of five conversations .
. . discussing alleged criminal acts." 498 F.2d 725,
726-27 (D.C. Cir. 1974) (en banc). President Nixon,
apparently taking no issue with the general power of
congressional committees to subpoena sitting Presidents,
instead asserted executive privilege over the individual
tapes requested, arguing that they "[could] not be
made public consistent with the confidentiality essential to
the functioning of the Office of the President."
Id. at 727 (internal quotation marks omitted). In
the end, we agreed with the President: although the
"presumptive privilege" protecting
"presidential conversations" could "be
overcome . . . by an appropriate showing of public
need," id. at 730 (internal quotation marks
omitted), we explained, the Committee had failed to make such
a showing "in the peculiar circumstances of [that]
case," id. at 733. But even though the Senate
Watergate Committee ultimately lost, Senate Select
Committee strongly implies that Presidents enjoy no
blanket immunity from congressional subpoenas. After all, if
such immunity exists, it would have been wholly unnecessary
for the court to explore the subpoena's particulars and
to weigh "the public interest [in] favor [of]
confidentiality" against a "showing of need by
another institution of government"-that is, Congress.
Id. at 730.
told, from Congress's centuries-long experience issuing
legislative subpoenas, and the courts' (somewhat less
frequent) experience reviewing them, a few principles
emerge-principles that control our resolution of this case.
initial matter, "whether [a] committee [is] authorized
[to] exact the information" it has subpoenaed "must
first be settled before . . . consider[ing] whether Congress
had the [constitutional] power to confer upon the committee
the authority which it claim[s]." Rumely, 345
U.S. at 42-43. In other words, it matters not whether the
Constitution would give Congress authority to issue a
subpoena if Congress has given the issuing committee no such
said, once a committee has been delegated "[t]he power
of the Congress to conduct investigations," that
constitutional authority "is broad."
Watkins, 354 U.S. at 187; accord Eastland,
421 U.S. at 504 n.15 ("[T]he power to investigate is
necessarily broad."); Barenblatt, 360 U.S. at
111 (describing Congress's investigative power as
"broad"); Quinn v. United States, 349 U.S.
155, 160 (1955) (same); McGrain, 273 U.S. at 173-74
(same). "It encompasses inquiries concerning the
administration of existing laws as well as proposed or
possibly needed statutes," "[i]t includes surveys
of defects in our social, economic or political system for
the purpose of enabling the Congress to remedy them,"
and "[i]t comprehends probes into departments of the
Federal Government to expose corruption, inefficiency or
waste." Watkins, 354 U.S. at 187. In
short, "[a] legislative inquiry may be as broad, as
searching, and as exhaustive as is necessary to make
effective the constitutional powers of Congress."
Townsend v. United States, 95 F.2d 352, 361 (D.C.
Cir. 1938). Expansive as it is, however, Congress's
subpoena power is subject to several key constraints.
because "the power of Congress . . . to
investigate" is "co-extensive with [its] power to
legislate," Quinn, 349 U.S. at 160, Congress
may in exercising its investigative power neither usurp the
other branches' constitutionally designated functions nor
violate individuals' constitutionally protected rights.
Congress may not conduct itself as "a law enforcement or
trial agency," as "[t]hese are functions of the
executive and judicial departments." Watkins,
354 U.S. at 187. And Congress lacks any "general power
to expose where the predominant result can only be an
invasion of the private rights of individuals."
Id. at 200.
precisely because "[t]he scope of [Congress's] power
of inquiry . . . is as penetrating and far-reaching as the
potential power to enact and appropriate under the
Constitution," Barenblatt, 360 U.S. at 111,
Congress may investigate only those topics on which it could
legislate, see Quinn, 349 U.S. at 161 (stating that
Congress's "power to investigate" does not
"extend to an area in which Congress is forbidden to
legislate"). If no constitutional statute may be enacted
on a subject matter, then that subject is off-limits to
finally, congressional committees may subpoena only
information "calculated to" "materially
aid" their investigations. McGrain, 273 U.S.
at 177. Even a valid legislative purpose cannot justify a
subpoena demanding irrelevant material.
these principles in mind, we proceed to the particulars of
this case. The Trump Plaintiffs dispute both the
Committee's authority from the House to issue the
subpoena and the House's authority under the Constitution
to confer the same. For reasons that shall become clear
later, we address these questions in reverse order.
outset, we emphasize that to resolve this case we need not
decide whether the Constitution permits Congress, in the
conduct of a legislative-that is, non-impeachment-
investigation, to issue subpoenas to a sitting President.
That issue is not presented here because, quite simply, the
Oversight Committee has not subpoenaed President
Trump. Rather, the Committee has issued its subpoena to
Mazars, an accounting firm with whom President Trump has
voluntarily shared records from his time as a private
citizen, as a candidate, and as President. Neither the Trump
Plaintiffs nor the Department of Justice argues that the
Constitution denies Congress authority to subpoena
non-governmental custodians of the President's financial
information. Cf. Oral Arg. Tr. 50 (stating that
assuming a committee has authority from the House to issue a
subpoena, the relevant inquiry is whether "the subpoena
ha[s] a legitimate legislative purpose"); id.
at 68 (denying that the President is "absolutely immune
from any oversight whatsoever"); Department Br. 7-8. Nor
do the Trump Plaintiffs assert any property rights in, or
executive or other recognized evidentiary privilege over, the
subpoenaed information. See Complaint (failing to
assert any claim of privilege or property right in the
subpoenaed materials); Oral Arg. Tr. 15 (confirming that the
President asserts no claim of executive privilege or
immunity); see also Couch v. United States, 409 U.S.
322, 335 (1973) (recognizing that "no confidential
accountant-client privilege exists under federal law, and no
state-created privilege has been recognized in federal
cases"); Peerenboom v. Marvel Entertainment,
LLC, 148 A.D.3d 531, 532 (N.Y.App.Div. 1st Dep't
2017) (holding that "[t]here is no accountant-client
privilege in [New York]"). Instead, the Trump Plaintiffs
ask us to do what courts have done ever since
Kilbourn: to determine "[w]hether the
Committee's subpoena . . . is 'related to, and in
furtherance of, a legitimate task of the Congress.'"
Appellants' Br. 5 (quoting Watkins, 354 U.S. at
187); see also Department Br. 10 (quoting same).
up that question, we consider whether the Oversight Committee
is pursuing a legislative, as opposed to a law-enforcement,
objective; whether the Committee is investigating a subject
on which constitutional legislation "could be had,"
McGrain, 273 U.S. at 177; and whether the challenged
subpoena seeks information sufficiently relevant to the
Committee's legislative inquiry.
"[t]he power of the Congress to conduct investigations
is inherent in the legislative process,"
Watkins, 354 U.S. at 187, that authority "must
not be confused with any of the powers of law
enforcement," which "are assigned under our
Constitution to the Executive and the Judiciary,"
Quinn, 349 U.S. at 161. The Trump Plaintiffs contend
that the Committee has crossed this constitutional line,
veering from permissible legislative investigation into
impermissible law enforcement. In assessing whether Congress
has strayed outside its legislative lane, we face two
the case law is quite stingy in describing what impermissible
congressional law enforcement might look like in practice.
The Supreme Court has framed its primary instruction on this
point in the negative: the fact that an investigation might
expose criminal conduct does not transform a legislative
inquiry into a law-enforcement endeavor. As the Court
explained in Sinclair, Congress's
"authority . . . to require pertinent disclosures in aid
of its own constitutional power is not abridged" merely
"because the information sought to be elicited may also
be of use" in criminal prosecutions. 279 U.S. at 295.
"Nor [is] it a valid objection," said the Court in
McGrain, that an investigation "might possibly
disclose crime or wrongdoing." 273 U.S. at 179-80.
Indeed, thanks to the Court's clarity on this matter, all
parties here agree that "a permissible legislative
investigation does not become impermissible merely because it
might expose law violations." Appellants' Br. 33
(internal quotation marks omitted); see also
Appellee's Br. 44 ("The fact that the . . .
underlying conduct might also be unlawful . . . does not
invalidate the inquiry.").
the Supreme Court has made plain that "in determining
the legitimacy of a congressional act," courts may
"not look to the motives alleged to have prompted
it." Eastland, 421 U.S. at 508; see also
Watkins, 354 U.S. at 200 (stating that "a solution
to our problem is not to be found in testing the motives of
committee members for [legislative] purpose");
Barenblatt, 360 U.S. at 132 ("So long as
Congress acts in pursuance of its constitutional power, the
Judiciary lacks authority to intervene on the basis of the
motives which spurred the exercise of that power.").
This is true both because "it is not for [the courts] to
speculate as to the motivations that may have prompted the
decision of individual [committee] members,"
Wilkinson v. United States, 365 U.S. 399, 412
(1961), and because, in any event, those "motives alone
would not vitiate an investigation which had been instituted
by a House of Congress if that assembly's legislative
purpose is being served," Watkins, 354 U.S. at
200. On this point, too, the parties agree. See
Appellants' Reply Br. 11 ("To determine whether a
subpoena is pursuing [the] impermissible goal" of law
enforcement, "courts . . . cannot delve into
legislators' hidden motives . . . .");
Appellee's Br. 43 ("[C]ourts cannot examine
Congress's motives to determine the validity of a
stranded between Charybdis and Scylla, we must determine
whether Congress's "legislative purpose is being
served," Watkins, 354 U.S. at 200, without
taking into account either whether the investigation will
reveal, or whether the investigators are motivated
to reveal, criminal conduct. According to the Committee,
the way out of this dilemma is simple: just
"'presume Congress is acting in furtherance of its
constitutional responsibility to legislate and . . . defer to
congressional judgments about what Congress needs to carry
out that purpose.'" Appellee's Br. 46 (quoting
Trump, 380 F.Supp.3d at 82). In most cases, such a
presumption would be entirely appropriate. As the Court
instructed in Tenney v. Brandhove, "[t]o find
that a committee's investigation has exceeded the bounds
of legislative power it must be obvious that there
was a usurpation of functions exclusively vested in the
Judiciary or the Executive," 341 U.S. 367, 378 (1951)
(emphasis added); or, as it said in McGrain, even
absent an "express avowal" by Congress that the
purpose of an "investigation was to aid it in
legislating," "the presumption should be indulged
that this was the real object," 273 U.S. at 178.
trouble, however, is that this deferential presumption finds
its roots in the principle that "every reasonable
indulgence of legality must be accorded to the actions of a
coordinate branch of our Government," Watkins,
354 U.S. at 204, and here, we arguably confront not one but
two "coordinate branch[es] of our
Government"-Congress and the President. We say
"arguably" because it is far from obvious that
President Trump, proceeding in his individual capacity,
carries the mantle of the Office of the President in this
case. The challenged subpoena seeks financial records totally
unrelated to any of the President's official actions;
indeed, for six of the eight years covered by the subpoena,
President Trump was merely Mr. Trump or Candidate Trump.
Cf. Clinton v. Jones, 520 U.S. 681, 697 (1997)
("[W]e have never suggested that the President . . . has
an immunity that extends beyond the scope of any action taken
in an official capacity."). That said, the fact remains
that the constitutional authority assigned to the Office of
the President can be exercised only by the flesh-and-blood
human occupying that office, so as a practical matter, a
restriction on the person might constrain the branch of
government. Cf. In re Lindsey, 158 F.3d 1263, 1286
(D.C. Cir. 1998) ("Because the Presidency is tied so
tightly to the persona of its occupant[, ] . . . official
matters . . . often have personal implications for a
President" and vice versa.) (Tatel, J., concurring in
part and dissenting in part). In short, although the
challenged subpoena, which seeks financial documents related
to President Trump in his pre-presidential, private
capacities, presents no direct inter-branch dispute,
separation-of-powers concerns still linger in the air.
Cf. United States v. Nixon, 418 U.S. 683, 702 (1974)
(explaining that where a pretrial "subpoena is directed
to a President of the United States, appellate review, in
deference to a coordinate branch of Government, should be
for the moment that we owe Congress no deference, we must
figure out how to assess whether the subpoena serves "a
valid legislative purpose," Barenblatt, 360
U.S. at 127, without resorting to the "presumption"
"that [legislation] was the real object" of
Congress's investigation, McGrain, 273 U.S. at
178. The Trump Plaintiffs, arguing that
"'purpose' and 'motive'" are
different, suggest that we may rely upon "available
evidence"-that is, "what [the Committee] is doing
and what it has stated publicly"-to "discern for
[ourselves] what the Committee's actual purpose
is." Appellants' Br. 29-30. Following that course,
we conclude that the public record reveals legitimate
legislative pursuits, not an impermissible law-enforcement
purpose, behind the Committee's subpoena. As a result, we
need not decide precisely what deference we owe Congress, as
we would reach the same conclusion absent any deference at
start with Chairman Cummings's April 12 memorandum, in
which he laid out the "need for [the] subpoena"
issued to Mazars. Cummings Memo 1. As the document most
closely tied in time and subject matter to the subpoena, that
memorandum offers a natural starting point for our analysis.
Cf. Shelton v. United States, 404 F.2d 1292, 1297
(D.C. Cir. 1968) (identifying "the opening statement of
the Chairman at [committee] hearings" and the
"statements of the members of the committee" as
"'sources [that might] indicate the existence of a
legislative purpose'" (quoting Wilkinson,
365 U.S. at 410)). The Trump Plaintiffs and the Committee
appear to agree, as does the dissent. See
Appellee's Br. 30-31 (relying on Chairman Cummings's
memorandum to supply a list of the subjects of the
Committee's investigations); Appellants' Reply Br.
20-21 (dismissing as "retroactive rationalizations"
potential legislative purposes that did not "appear in
the Chairman's memorandum" (alterations and internal
quotation marks omitted)); Dissenting Op. at 2 (tracing the
"reasons" for the subpoena to Chairman
Cummings's memorandum identifies four questions that the
subpoena will help answer: "whether the President may
have engaged in illegal conduct before and during his tenure
in office," "whether [the President] has
undisclosed conflicts of interest that may impair his ability
to make impartial policy decisions," "whether [the
President] is complying with the Emoluments Clauses of the
Constitution," and "whether [the President] has
accurately reported his finances to the Office of Government
Ethics and other federal entities." Cummings Memo 4. But
even more important than this list, the Chairman's very
next sentence explains that "[t]he Committee's
interest in these matters informs [the Committee's]
review of multiple laws and legislative proposals under [its]
jurisdiction." Id. Such an "express avowal
of the [Committee's] object" offers strong evidence
of the Committee's legislative purpose. McGrain,
273 U.S. at 178.
April memorandum does not stand alone. Just two months
earlier, Chairman Cummings articulated the same remedial
legislative objective in his letter to White House Counsel.
In that letter, he explained that obtaining the requested
financial documents would "help the Committee determine
why the President failed to report . . . payments and whether
reforms are necessary to address deficiencies with current
laws, rules, and regulations." Cummings Feb. 15 Letter
9. "Since the earliest days of our republic," the
Chairman emphasized, "Congress has investigated how
existing laws are being implemented and whether changes to
the laws are necessary." Id. And "[f]or
decades," he concluded, "this has included laws
relating to financial disclosures required of the
more, although the House is under no obligation to enact
legislation after every investigation, the fact that the
House has pending several pieces of legislation related to
the Committee's inquiry offers highly probative evidence
of the Committee's legislative purpose. See In re
Chapman, 166 U.S. 661, 670 (1897) ("[I]t is
certainly not necessary" to identify future legislation
"in advance."); see also Eastland, 421
U.S. at 509 ("The very nature of the investigative
function-like any research-is that it takes the searchers up
some 'blind alleys' and into nonproductive
enterprises."). The House has already passed one such
bill, H.R. 1, which requires Presidents to list on their
financial disclosures the liabilities and assets of any
"corporation, company, firm, partnership, or other
business enterprise in which" they or their immediate
family have "a significant financial interest."
H.R. 1, 116th Cong. § 8012 (2019). Another bill
currently pending, H.R. 706, would require both sitting
Presidents and presidential candidates to "submit to the
Federal Election Commission a copy of the individual's
income tax returns" for the preceding nine or ten years,
respectively. H.R. 706, 116th Cong. § 222 (2019). And
still another, H.R. 745, would amend the Ethics in Government
Act to make the Director of the Office of Government Ethics
removable only for cause. See H.R. 745, 116th Cong.
§ 3 (2019) (making the Director "subject to removal
only for inefficiency, neglect of duty, or malfeasance in
these indicia of legislative purpose, the Trump Plaintiffs
contend that "[t]he subpoena's actual
purpose is law enforcement." Appellants' Reply Br. 9
(emphasis added). They make four principal arguments.
the Trump Plaintiffs question whether the Committee's
avowals of legislative purpose are genuine. Quoting our
court's opinion in Shelton v. United States,
they argue that "Congress cannot cure [a] constitutional
violation through 'the mere assertion of a need to
consider remedial legislation.'" Appellants' Br.
34 (quoting Shelton, 404 F.2d at 1297). But the
Trump Plaintiffs stop at a key conjunction. "[T]he mere
assertion of a need to consider 'remedial
legislation' may not alone justify an
investigation," we explained in Shelton. 404
F.2d at 1297. "[B]ut," we continued,
"when the purpose asserted is supported by references to
specific problems which in the past have been or which in the
future could be the subjects of appropriate legislation, then
we cannot say that a committee of the Congress exceeds its
broad power." Id. (emphasis added).
just this case. We do not confront an insubstantial,
makeweight assertion of remedial purpose. To the contrary,
Chairman Cummings's April 12 memorandum to his colleagues
lists four investigative topics; his March 20 letter to
Mazars details several "specific concerns raised by the
[firm's] financial statements," Cummings Mar. 20
Letter 2; and his February 15 letter to White House Counsel
states his intent to assess whether "changes to the laws
. . . relating to financial disclosures required of the
President" "are necessary," Cummings Feb. 15
Letter 9. These "references to specific problems,"
Shelton, 404 F.2d at 1297, together with actual
legislation now pending, see supra at 26-27, are
more than sufficient to demonstrate the Committee's
interest in investigating possible remedial legislation.
the Trump Plaintiffs contend that, far from
"avow[ing]" a legislative intent, McGrain,
273 U.S. at 178, Chairman Cummings's memorandum and
statements by other Representatives have "affirmatively
and definitely avowed an unlawful law-enforcement
purpose," Appellants' Reply Br. 13 (internal
quotation marks omitted); see also Dissenting Op. at
43. In particular, the Trump Plaintiffs take issue with the
first investigative rationale offered in Chairman
Cummings's memorandum: "to investigate whether the
President may have engaged in illegal conduct before and
during his tenure in office." Cummings Memo 4. But even
if such an investigation would not by itself serve a
legitimate legislative purpose, we can easily reject the
suggestion that this rationale spoils the Committee's
otherwise valid legislative inquiry. Simply put, an interest
in past illegality can be wholly consistent with an intent to
enact remedial legislation.
Hutcheson v. United States, in which the Court
considered the activities of a Senate committee tasked with
"investigat[ing] . . . the extent to which criminal . .
. practices or activities" were occurring "in the
field of labor-management relations" and
"determin[ing] whether any changes [were] required in
the laws . . . to protect . . . against . . . such practices
or activities." 369 U.S. 599, 600-01 (1962) (quoting S.
Res. 74, 85th Cong. (1957)). The president of the United
Brotherhood of Carpenters and Joiners of America, called
before the committee to testify regarding whether he had used
"union funds . . . to 'fix' a 1957 criminal
investigation . . . by a state grand jury," id.
at 603, refused to answer such questions and was convicted of
criminal contempt, see id. at 605. Even though
"[t]he Committee's concern . . . was to discover
whether . . . [union] funds . . . had been used . . . to
bribe a state prosecutor," and even though "[i]f
these suspicions were founded, they might . . . have
warranted a separate state prosecution for obstruction of
justice," the Supreme Court nonetheless affirmed the
contempt conviction. Id. at 617-18. What mattered to
the Court was that the committee's investigation into the
details of the defendant's illegal conduct "would
have supported remedial federal legislation for the
future." Id. at 617. "[S]urely," the
Court concluded, "a congressional committee . . .
engaged in a legitimate legislative investigation need not
grind to a halt whenever . . . crime or wrongdoing is
disclosed." Id. at 618 (internal citations
teaches a similar lesson. Shortly before the Senate summoned
the oil tycoon Sinclair to testify, it had passed a joint
resolution "recit[ing] that [his company's] leases .
. . were executed under circumstances indicating fraud and
corruption" and "direct[ing] the President . . . to
prosecute such . . . proceedings, civil and criminal, as were
warranted by the facts." 279 U.S. at 289. When Sinclair
appeared for the hearing, the Senate committee considered but
rejected a motion that would have prohibited
"inquir[ies] . . . relat[ing] to pending controversies
before any of the Federal courts in which Mr. Sinclair [was]
a defendant." Id. at 290. "If we do not
examine Mr. Sinclair about those matters," one committee
member lamented, "there is not anything else to examine
him about." Id. Despite all this, the Court
held that "[t]he record [did] not sustain
[Sinclair's] contention that the investigation was
avowedly not in aid of legislation." Id. at
295. The failed motion and the member's statement were
"not enough to show that the committee intended to
depart from the purpose to ascertain whether additional
legislation might be advisable," explained the Court,
because "[i]t [was] plain that investigation of the
matters involved in" pending or future "suits . . .
might directly aid in respect of legislative action."
here. Like the committees in Hutcheson and
Sinclair, the Oversight Committee has expressed an
interest in determining whether and how illegal conduct has
occurred. But also like the committees in Hutcheson
and Sinclair-indeed, even more so-the Oversight
Committee has repeatedly professed that it seeks to
investigate remedial legislation. In fact, the House has even
put its legislation where its mouth is: it has passed one
bill pertaining to the information sought in the subpoenas
and is considering several others. See supra at
26-27. The Committee's interest in alleged misconduct,
therefore, is in direct furtherance of its legislative
the Trump Plaintiffs argue that the subpoena's
"laser-focus on the businesses and finances of one
person" evinces "a particularity that is the
hallmark of executive and judicial power."
Appellants' Br. 35. But again, Supreme Court precedent
forecloses this contention. In McGrain, for example,
the Senate authorized a select committee "to investigate
. . . the alleged failure of Harry M. Daugherty, Attorney
General of the United States, to prosecute properly violators
of" anti-trust laws and "further directed [the
committee] to inquire into, investigate and report . . . the
activities of the said Harry M. Daugherty, Attorney General,
and any of his assistants . . . which would in any manner
tend to impair their efficiency or influence as
representatives of the government of the United States."
273 U.S. at 151-52 (internal quotation marks omitted).
Untroubled by the resolution's "direct reference to
the then Attorney General by name," the Court held that
"the resolution and proceedings" of the
investigatory committee "g[a]ve no warrant for thinking
the Senate was attempting or intending to try the Attorney
General . . . before its committee for any crime or
wrongdoing." Id. at 179.
lesson of McGrain is that an investigation may
properly focus on one individual if that individual's
conduct offers a valid point of departure for remedial
legislation. Again, such is the case here. It is not at all
suspicious that the Committee would focus an investigation
into presidential financial disclosures on the accuracy and
sufficiency of the sitting President's filings. That the
Committee began its inquiry at a logical starting point
betrays no hidden law-enforcement purpose.
the Trump Plaintiffs detect something untoward in the
Committee's interest in the President's finances.
"If this subpoena is valid," they argue, "then
Congress is free to investigate every detail of a
President's personal life, with endless subpoenas to his
accountants, bankers, lawyers, doctors, family, friends, and
anyone else with information that a committee finds
interesting." Appellants' Reply Br. 24.
unlike a subpoena to, say, a doctor or an attorney, the
congressional request at issue in this case implicates no
material subject to a recognized legal privilege or an
asserted property interest. See supra at 20.
Moreover, as the Court explained in Sinclair,
although Congress may not make "unauthorized, arbitrary
or unreasonable inquiries" into individuals'
"personal and private affairs," Congress most
assuredly does possess authority "to require pertinent
disclosures in aid of its . . . constitutional power"
when those affairs become a "matter of [public]
concern" amenable to a legislative solution. 279 U.S. at
292, 294-95; see also Barenblatt, 360 U.S. at 127
(explaining that "Congress may . . . constitutionally
require an individual to disclose his political relationships
or other private affairs" if "in relation to"
"a valid legislative purpose"). The same rationale
applies here. Whether current financial disclosure laws are
successfully eliciting the right information from the sitting
President, occupant of the highest elected office in the
land, is undoubtedly "a matter of concern to the United
States." Sinclair, 279 U.S. at 294; cf.
Washington Post Co. v. U.S. Department of Health & Human
Services, 690 F.2d 252, 265 (D.C. Cir. 1982)
("[T]he [Ethics in Government] Act shows Congress'
general belief that public disclosure of conflicts of
interest is desirable despite its cost in loss of personal
amicus brief, the Justice Department argues that the subpoena
is invalid for still another reason, namely that the House
(or at least the Committee) failed to offer a "clear,
specific statement . . . of the legislative purpose
that it believes justifies its subpoena." Department Br.
12 (emphasis added). In the Department's view, general
indicia of legislative purpose are not enough; the House must
identify "with sufficient particularity the subject
matter of potential legislation." Id. at 14. In
support, the Department cites Watkins, where, it
argues, "the Supreme Court demanded just such a clear
statement of purpose." Id. at 13. But the
Watkins Court demanded no such thing. That case
concerned not the legitimacy of an investigative subpoena,
but rather an appeal of a criminal conviction for contempt of
Congress under 2 U.S.C. § 192, which makes it a
misdemeanor to refuse to answer any question posed by a
member of Congress "pertinent to the question under
inquiry." Watkins, 354 U.S. at 207 (quoting 2
U.S.C. § 192). Because the committee's
"authorizing resolution, the remarks of the chairman or
members of the committee, [and] even the nature of the
proceedings themselves," id. at 209, failed to
articulate "the 'question under inquiry, '"
id. at 214, the Court reversed the conviction,
holding that an individual risking criminal contempt must
"have knowledge of the subject to which the
interrogation is deemed pertinent . . . with the same degree
of explicitness and clarity that the Due Process Clause
requires in the expression of any element of a criminal
offense." Id. at 208-09. The fact that the
Watkins Court probed the committee's statements
in an attempt to remedy "the vice of
vagueness"-present for criminal contempt of Congress,
"as in all other crimes," id. at
209-provides no support for the Department's contention
that Congress must identify its legislative purpose
"with sufficient particularity" in order to justify
an investigative subpoena. See Barenblatt, 360 U.S.
at 123 (explaining that in Watkins, the Court
"rest[ed] [its] decision on [the] ground" that
"a conviction for contempt under 2 U.S.C. § 192
cannot stand unless the questions asked are pertinent to the
subject matter of the investigation").
from finding support in Watkins, the
Department's argument conflicts with binding Supreme
Court precedent. Over a century ago, the Court made clear in
In re Chapman that it is "certainly not
necessary that the resolutions should declare in advance what
the [Congress] meditate[s] doing when the investigation [i]s
concluded." 166 U.S. at 670. The Court has twice
reiterated this holding, stating in McGrain that
"it was not essential that the Senate declare in advance
what it meditated doing," 273 U.S. at 172, and then in
Eastland- issued nearly two decades after
Watkins-that "to be a valid legislative inquiry
there need be no predictable end result," 421 U.S. at
509. After all, the purpose of an investigation, as the Court
explained in McGrain, is to gather "information
respecting the conditions which the legislation is intended
to affect or change," 273 U.S. at 174-75; it is, as the
Court added in Eastland, "research" that
informs future Congressional action, 421 U.S. at 509.
Congress's decision whether, and if so how, to legislate
in a particular area will necessarily depend on what
information it discovers in the course of an investigation,
and its preferred path forward may shift as members educate
themselves on the relevant facts and circumstances. Requiring
Congress to state "with sufficient particularity"
the legislation it is considering before it issues
an investigative subpoena would turn the legislative process
on its head.
it is not at all clear what such a statement would
accomplish. The Department suggests that a clear statement
rule is "mandate[d]" by the "particular
separation-of-powers issues that arise when Congress attempts
to compel the President to produce information."
Department Br. 9. Setting aside the fact that this subpoena,
which is addressed to Mazars, "compel[s] the President
to produce" nothing, we still see no justification in
the Department's brief for why specificity is required in
this scenario as opposed to any other. To be sure,
"[t]he President occupies a unique position in the
constitutional scheme." Nixon v. Fitzgerald,
457 U.S. 731, 749 (1982). But that unique position has little
bearing on our ability to determine whether Congress has
strayed from the realm of legitimate legislation into
improper law enforcement-an inquiry that, as we have just
demonstrated, we can meaningfully conduct without the
specific articulation the Department seeks. Nor does the
Department explain how specificity would meaningfully protect
the President beyond simply burdening Congress's exercise
of its own Article I power.
Department's argument also ignores how much Congress has
already revealed about its legislative objectives. In his
February 15 letter and April 12 memorandum, Chairman Cummings
explained that the Committee was reviewing "multiple
laws and legislative proposals under [its]
jurisdiction," Cummings Memo 4, including whether
"changes . . . are necessary" to "laws
relating to financial disclosures required of the
President," Cummings Feb. 15 Letter 9. The House has
already passed H.R. 1, which would require Presidents to
disclose businesses in which they or their immediate families
have significant interests, and is considering legislation
which would require Presidential candidates and Presidents to
submit their income tax returns to the Federal Election
Commission and make the Director of the Office of Government
Ethics removable only for cause. See supra at 26-27.
To be sure, as the Department points out, the House passed
H.R. 1 without the information the subpoena seeks. But House
passage is far from the end of the legislative process.
Information revealed by the subpoena could inform the Senate
as it considers the bill, as well as any subsequent
conference committee or the House itself, should it
reconsider the bill post-conference
on all the foregoing, we conclude that in issuing the
challenged subpoena, the Committee was engaged in a
"legitimate legislative investigation,"
Hutcheson, 369 U.S. at 618, rather than an
impermissible law-enforcement inquiry. We next assess whether
that legislative investigation concerned a subject "on
which legislation could be had." McGrain, 273
U.S. at 177.
"Congress may only investigate into those areas in which
it may potentially legislate or appropriate,"
Barenblatt, 360 U.S. at 111, a congressional
committee may issue only those subpoenas that are
"intended to gather information about a subject on which
legislation may be had," Eastland, 421 U.S. at
508; see also McGrain, 273 U.S. at 177 (stating that
"the subject" of investigation "was one on
which legislation could be had"). The Trump Plaintiffs
argue that the challenged subpoena fails this test because,
in their view, "[t]he subpoena could not result in valid
legislation regarding the President." Appellants'
Reply Br. 17.
addressing this argument, we emphasize that the relevant
inquiry is whether legislation "may be
had," Eastland, 421 U.S. at 508 (emphasis
added), not whether constitutional legislation will
be had. Accordingly, we first define the universe of possible
legislation that the subpoena provides "information
about," id., and then consider whether Congress
could constitutionally enact any of those potential statutes.
must, however, tread carefully. As the Committee points out,
our limited judicial role gives us no authority to reach out
and "[s]trik[e] down a statute before it is even
enacted." Appellee's Br. 41; see also Nashville,
Chattanooga & St. Louis Railway v. Wallace, 288 U.S.
249, 262 (1933) (explaining that courts may not make
"abstract determination[s] . . . of the validity of a
statute" or issue "decision[s] advising what the
law would be on an uncertain or hypothetical state of
facts"). That said, as the Trump Plaintiffs observe,
see Appellants' Br. 21 ("[b]ecause valid
legislation could not 'be had' if it would be
unconstitutional, the court ha[s] to decide whether this
subpoena is designed to advance unconstitutional
legislation"), the only way to determine whether the
Committee's investigation informs "a subject on
which legislation may be had" is to ask, abstract as the
inquiry may be, whether "legislation may be
had" on that "subject," Eastland, 421
U.S. at 508 (emphasis added). Although we must avoid passing
on the constitutionality of hypothetical statutes, we must
also fulfill our responsibility to decide the case in front
of us, even if the road to resolution passes through an issue
of constitutional law. See Cohens v. Virginia, 19
U.S. 264, 404 (1821) ("The judiciary cannot, as the
legislature may, avoid a measure because it approaches the
confines of the [C]onstitution. . . . [W]e must decide [a
case] if it be brought before us."). Accordingly, in
order to resolve this case, we need to identify a
statutory litmus test. The Committee and the Trump Plaintiffs
each offer one, but neither quite fits our needs.
Committee urges us to consider whether any law
"concerning government ethics and conflicts of interest
affecting Executive Branch officials" could pass
constitutional muster. Appellee's Br. 30. But this test
is too broad. The challenged subpoena-or, more specifically,
the portion of the subpoena that seeks a sitting
President's financial information-would produce no
relevant "information about," id., laws
that apply to ordinary Executive Branch employees. Because
"[t]he President occupies a unique position in the
constitutional scheme," Fitzgerald, 457 U.S. at
749, Congress's constitutional authority to regulate the
President's conduct is significantly more circumscribed
than its power to regulate that of other federal employees,
see supra at 35-36. Just as a congressional
committee could not subpoena the President's high school
transcripts in service of an investigation into K-12
education, nor subpoena his medical records as part of an
investigation into public health, it may not subpoena his
financial information except to facilitate an investigation
into presidential finances. Thus, to determine
whether the records of pre-Candidate, Candidate, and
President Trump provide "information about a subject on
which legislation may be had," Eastland, 421
U.S. at 508, we must train our attention on laws that apply
to Presidents (and presidential hopefuls).
vein, the Trump Plaintiffs urge us to focus on the
constitutionality of laws that "impose
conflict-of-interest restrictions on the President."
Appellants' Br. 37. As the Trump Plaintiffs point out,
such restrictions raise difficult constitutional questions.
Statutes mandating divestment from financial interests or
recusal from conflicted matters might impermissibly
"disempower [Presidents] from performing some of the
functions prescribed [by] the Constitution or . . . establish
a qualification for . . . serving as President . . . beyond
those contained in the Constitution." Memorandum from
Laurence H. Silberman, Deputy Attorney General, to Richard T.
Burress, Office of the President, Re: Conflict of Interest
Problems Arising out of the President's Nomination of
Nelson A. Rockefeller to be Vice President Under the
Twenty-Fifth Amendment to the Constitution 5 (Aug. 28, 1974)
("Silberman Memo"). But we need not grapple with
those constitutional issues because the Mazars subpoena seeks
information related to a class of statutes that impose far
fewer burdens than laws requiring Presidents to change their
behavior based on their financial holdings. This less
burdensome species of law would require the President to do
nothing more than disclose financial information.
Such statutes might amend the Ethics in Government Act, for
example, to require Presidents and presidential candidates to
file reports more frequently, to include information covering
a longer period of time, or to provide new kinds of
information such as past financial dealings with foreign
businesses or current liabilities of closely held companies.
We take this category of statutes as the appropriate object
of our litmus test in this case.
Trump Plaintiffs argue that the Constitution prohibits even
these. Relying on Chief Justice Burger's concurrence in
Nixon v. Fitzgerald, they contend that financial
disclosure laws unconstitutionally "'impinge on
and hence interfere with the independence that is
imperative to the functioning of the office of a
President.'" Appellants' Br. 44 (quoting
Fitzgerald, 457 U.S. at 761 (Burger, C.J.,
that is not the rule-at least not quite. As the Court
explained in Nixon v. Administrator of General
Services (Nixon II), the mere act of
"regulat[ing] . . . Presidential materials,"
"without more," does not "constitute . . . a
violation of the principle of separation of powers." 433
U.S. 425, 441 (1977). Instead, rejecting "the argument
that the Constitution contemplates a complete division of
authority between the three branches," the Court
reaffirmed its reliance on "the more pragmatic, flexible
approach of Madison in the Federalist Papers."
Id. at 442-43. "In . . . dividing and
allocating the sovereign power among three coequal
branches," the Court explained, "the Framers of the
Constitution" did not intend "the separate powers .
. . to operate with absolute independence." Id.
at 443 (internal quotation marks and emphasis omitted). The
Court therefore announced the following test: "in
determining whether [a statute] disrupts the proper balance
between the coordinate branches, the proper inquiry focuses
on the extent to which it prevents the Executive Branch from
accomplishing its constitutionally assigned functions."
Id. Applying this rule, we have no basis for
concluding that complying with financial disclosure laws
would in any way "prevent the [President] from
accomplishing [his] constitutionally assigned
most persuasive evidence on this score comes from the
Constitution itself. The very same document that
"vest[s]" "[t]he executive Power . . . in
[the] President," U.S. Const. art. II, § 1, cl. 1,
and directs him to "take Care that the Laws be
faithfully executed," id. art. II, § 3,
also imposes two separate requirements pertaining to the
President's private finances. The first, the so-called
Domestic Emoluments Clause, prohibits the President from
receiving "any . . . Emolument" from the federal or
state governments other than a fixed "Compensation"
"for his Services." Id. art. II, § 1,
cl. 7. And the second, the so-called Foreign Emoluments
Clause, prohibits any federal official "holding any
Office of Profit or Trust"-the President included-from
"accept[ing] . . . any present, Emolument, Office, or
Title, of any kind whatever, from any King, Prince, or
foreign State" without "the Consent of the
Congress." U.S. Const. art. I, § 9, cl. 8; see
also Applicability of the Emoluments Clause & the
Foreign Gifts & Decorations Act to the President's
Receipt of the Nobel Peace Prize, O.L.C. slip op. at 4, 2009
WL 6365082, at *4 (Dec. 7, 2009) ("The President surely
'hold[s] an Office of Profit or Trust' . . .
." (alterations in original) (quoting U.S. Const. art.
I, § 9, cl. 8)). If the President may accept no domestic
emoluments and must seek Congress's permission before
accepting any foreign emoluments, then surely a statute
facilitating the disclosure of such payments lies within
United States Code, too, provides ample precedent for laws
that regulate Presidents' finances and records. Cf.
Nixon II, 433 U.S. at 445 (noting the "abundant
statutory precedent for the regulation and mandatory
disclosure of documents in the possession of the Executive
Branch"). The Foreign Gifts and Decorations Act requires
all federal employees, including the President, to "file
a statement" regarding any gift they receive "of
more than minimal value." 5 U.S.C. § 7342(c). The
STOCK Act prohibits all "executive branch
employees," including the President, from "us[ing]
nonpublic information derived from such person's position
. . . as a means for making a private profit." Pub. L.
No. 112-105, §§ 2, 9, 126 Stat. 291, 291, 297. And
the Presidential Records Act-whose constitutionality the
Trump Plaintiffs readily concede- establishes a whole
statutory scheme for "categoriz[ing],"
"fil[ing]," "dispos[ing]" of, and
"manag[ing]" "Presidential records." 44
U.S.C. § 2203; see Appellants' Br. 40
("The Presidential Records Act . . . did not cause a
disruption of executive functions significant enough to
trigger separation of powers analysis" (internal
quotation marks omitted)). History discloses no evidence that
these statutes have disrupted presidential functions.
history of past Presidents' financial disclosures offers
a particularly useful guide. As explained above, see
supra at 3- 4, the Ethics in Government Act requires
Presidents to file periodic reports detailing, among other
things, "[t]he source, type, and [approximate] amount or
value of income . . . from any [non-federal] source,"
"[t]he identity and [approximate] value of . . . total
liabilities owed," and "the date . . . and
[approximate] value of any purchase, sale or exchange [of
real property and securities] during the preceding calendar
year." 5 U.S.C. app. 4 § 102(a). Every President to
have served since the Ethics in Government Act became law in
1978-Presidents Carter, Reagan, H.W. Bush, Clinton, W. Bush,
Obama, and now Trump-has complied with these disclosure
requirements. See, e.g., Philip Taubman, Carter
Drops 'Blind Trust' Secrecy and Divulges Finances for
1978-9, N.Y. Times, May 31, 1979, at A1; Edward T.
Pound, Reagan's Worth Put at $4 Million, N.Y.
Times, Feb. 23, 1981, at A1; Associated Press,
President's Trust Grows in Value, N.Y. Times,
May 15, 1992, at A17; Stephen Labaton, Most of
Clintons' Wealth Held by Mrs. Clinton, Disclosure Form
Shows, N.Y. Times, May 18, 1994, at A20; Richard W.
Stevenson, Bushes' Assets Put at $8.8 Million in
Filing, N.Y. Times, May 16, 2003, at A22; U.S. Office of
Government Ethics, Presidential and Vice
Presidential Financial Disclosure
20Vice%20President%20Index (financial disclosure reports of
Presidents Obama and Trump); see also
Appellants' Br. 44 (acknowledging that "President
[Trump] has voluntarily complied with those statutory
requirements"). In fact, Presidents Carter, Reagan, H.W.
Bush, Clinton, W. Bush, and Obama exceeded statutory
disclosure requirements by releasing their personal federal
income tax returns to the public. See
Presidential Tax Returns,
TaxNotes, taxnotes.com/presidential-tax-returns (collecting
presidential tax records).
course, as the Trump Plaintiffs point out, "compliance
is not the measure of constitutionality."
Appellants' Br. 44. But when asked to decide whether an
act of Congress "disrupts the proper balance between the
coordinate branches," Nixon II, 433 U.S. at
443, a court would be foolish to ignore those branches'
prior pattern of conflict-or, as here, cooperation. See
id. at 441 (finding it significant that "[n]either
President Ford nor President Carter support[ed]
[former-President Nixon's] claim" that the
challenged statute's "regulation of the disposition
of Presidential materials . . . constitutes, without more, a
violation of the principle of separation of powers");
cf. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2091 (2015)
("In separation-of-powers cases this Court has often
'put significant weight upon historical
practice.'" (quoting NLRB v. Noel Canning,
573 U.S. 513, 524 (2014))). Though not dispositive, the fact
that every President during the last four decades has filed
financial disclosures offers persuasive evidence that such
disclosures neither "prevent" nor
"disrupt," Nixon II, 433 U.S. at 443,
the President's efforts to "take Care that the Laws
be faithfully executed," U.S. Const. art. II, § 3.
sure, it is possible that some hypothetical statute could go
too far. One could certainly imagine disclosure mandates so
onerous that they begin to "prevent the Executive
Branch from accomplishing its constitutionally assigned
functions." Nixon II, 433 U.S. at 443; see,
e.g., Oral Arg. Tr. 17 (positing "a statute
[requiring] the President . . . to submit 100, 000 pages of
financial disclosures and [to] meet with Congress once a
month to discuss them"). But to accept the Trump
Plaintiffs' suggestion that Congress may impose
no disclosure requirements whatsoever on the
President, see Oral Arg. Tr. 51-52 (stating it is
"very difficult to think of" a constitutional law
Congress "could pass" with respect to the
President)-or, put another way, that the challenged subpoena
could result in no valid legislation-would be to
return to an "archaic view of the separation of
powers" that "requir[es] three airtight departments
of government," Nixon II, 433 U.S. at 443
(internal quotation marks omitted). That is not the law.
"our constitutional system imposes upon the Branches a
degree of overlapping responsibility, a duty of
interdependence as well as independence[, ] the absence of
which 'would preclude the establishment of a Nation
capable of governing itself effectively.'"
Mistretta v. United States, 488 U.S. 361, 381 (1989)
(quoting Buckley v. Valeo, 424 U.S. 1, 121 (1976)).
As the Supreme Court has observed, "separation of powers
does not mean that the branches 'ought to have no
partial agency in, or no controul over, the
acts of each other.'" Clinton, 520 U.S. at
702-03 (quoting The Federalist No. 47, at 325-326 (J. Cooke
ed.1961) (emphasis in original)); see also Nixon II,
433 U.S. at 442-43 & n.5 (affirming "the more
pragmatic, flexible approach of Madison in the Federalist
Papers and later of Mr. Justice Story" to the separation
of powers); Nixon, 418 U.S. at 703 ("In
designing the structure of our Government and dividing and
allocating the sovereign power among three coequal branches,
the Framers of the Constitution sought to provide a
comprehensive system, but the separate powers were not
intended to operate with absolute independence."). As
the Nixon cases teach, the "proper inquiry
focuses on the extent to which [another branch's actions]
prevent the Executive branch from accomplishing its
constitutionally assigned functions." Nixon II,
433 U.S. at 443 (citing Nixon, 418 U.S. at 711-712).
Congress can require the President to make reasonable
financial disclosures without upsetting this balance.
Trump Plaintiffs challenge the constitutionality of
legislation that "may be had" on another basis.
Eastland, 421 U.S. at 508. Drawing on the principle
announced in Powell v. McCormack, 395 U.S. 486
(1969), and U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779 (1995), that "[n]either Congress nor the states
can add to the constitutional qualifications for holding
federal elective office," Walker v. United
States, 800 F.3d 720, 723-24 (6th Cir. 2015), they argue
that imposing conflict-of-interest laws on the President
would impermissibly "change or expand the qualifications
for serving as President," Appellants' Br. 38
(citing Powell and Thornton). But once
again, we need not reach this issue. Regardless of whether
Congress may require Presidents to "eliminat[e] [their]
financial conflicts" through divestment or recusal, the
Trump Plaintiffs offer no reason to suspect that a statute
requiring nothing more than disclosure of such
conflicts might also "'establish a qualification for
. . . serving as President.'" Appellants' Br. 38
(quoting Silberman Memo 5). Financial disclosure laws would
not, as in Powell, prevent a "duly
elected" official from assuming office, 395 U.S. at 550,
nor, as in U.S. Term Limits, add a term limit to
"the exclusive qualifications set forth in the text of
the Constitution," 514 U.S. at 827; cf.
Appellants' Br. 39 (conceding that "[t]he
Presidential Records Act does not add or alter the
qualifications for office"). In the end, laws requiring
disclosure exclude precisely zero individuals from running
for or serving as President; regardless of their financial
holdings, all constitutionally eligible candidates may apply.
we detect no inherent constitutional flaw in laws requiring
Presidents to publicly disclose certain financial
information. And that is enough. Without treading onto any
other potentially fertile grounds from which constitutional
legislation could flower, we conclude that given the
constitutionally permissible options open to Congress in the
field of financial disclosure, the challenged subpoena seeks
"information about a subject on which legislation may be
had." Eastland, 421 U.S. at 508.
dissent, however, this makes no difference. Although
acknowledging that the Committee is pursuing a "valid
legislative inquiry," the dissent insists that the
Mazars subpoena is nonetheless invalid because it "seeks
to investigate individual suspicions of criminality against
the President," an inquiry that "may be pursued
only through impeachment." Dissenting Op. at 44. In
support, the dissent claims to rely on the "text and