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Trump v. Mazars USA, LLP

United States Court of Appeals, District of Columbia Circuit

October 11, 2019

Donald J. Trump, et al., Appellants
Mazars USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, Appellees

          Argued July 12, 2019

          Appeal 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. Passantino.

          Duane 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.

          Hashim 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.


          Tatel, Circuit Judge.

         On 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.


         Shortly 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. 2(m).

         This 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.

         In 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).

         Last 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), (disclosing that "Mr. Trump fully reimbursed Mr. Cohen in 2017").

         Several 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. 22, 2019).

         In 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 9.

         Two 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.

         Chairman 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.

         Mazars 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] jurisdiction." Id.

         The 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.

         Before 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.

         The 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.

         The 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 the merits").


         This is 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 historical context.

         The 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.

         After 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).

         But not 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.

         If 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.

         Two 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.

         The 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.

         The 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.

         Presidents, 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).

         Of all 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.

         All 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.

         As an 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 authority.

         That 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.

         First, 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.

         Next, 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 congressional investigators.

         And 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.

         With 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.


         At the 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).

         Taking 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.


         While "[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 analytical hurdles.

         First, 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.").

         Second, 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 subpoena.").

         Thus 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.

         The 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 particularly meticulous").

         Assuming 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 all.

         We 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 Memo).

         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.

         The 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 President." Id.

         What's 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 office").

         Despite 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.

         First, 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).

         That is 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.

         Second, 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.

         Take 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 omitted).

         Sinclair 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." Id.

         So too 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 purpose.

         Third, 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.

         The 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.

         Finally, 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.

         But 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 privacy.").

         In its 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").

         Far 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.

         Moreover, 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.

         The 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

         Based 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.


         Because "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.

         In 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.

         We 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.

         The 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).

         In that 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.

         The 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., concurring)).

         But 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 functions." Id.

         The 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 constitutional limits.

         The 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.

         The 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 Reports, 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, (collecting presidential tax records).

         Of 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.

         To be 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.

         Instead, "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.

         The 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.

         In sum, 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.

         To the 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 ...

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