On February 27, 2019, President Trump’s former attorney Michael Cohen appeared before the House Committee on Oversight and Reform and testified that President Trump had changed the estimated value of his assets and liabilities on financial statements prepared by his accounting firm, Mazars USA, LLP (“Mazars”).  The Committee also heard testimony that President Trump may have failed to disclose certain financial holdings as required by the Ethics in Government Act of 1978.  To further investigate these issues, the House Oversight Committee subpoenaed Mazars for documents related to President Trump’s and his businesses’ finances from 2011 until the present.  Shortly after, President Trump and his businesses sued Mazars, asking the U.S. District Court for the District of Columbia to declare the subpoena “invalid and unenforceable.”  The Oversight Committee intervened to defend its subpoena.  The District Court heard oral argument and subsequently held that the Committee’s subpoena was valid and that Mazars must comply with it.  President Trump and his businesses appealed to the D.C. Circuit.

On July 1, 2019, CAC filed an amicus curiae brief in support of the Committee, arguing that the Oversight Committee’s request is valid.  On October 11, 2019, the D.C. Circuit affirmed the district court’s order and held that Mazars must comply with the Committee’s subpoena.  Mirroring the arguments in our brief, the opinion discussed at length the long history of congressional investigations and subpoenas that extends as far back as the late seventeenth century.  With that context in mind, the court held that the Committee was engaged in a “legitimate legislative investigation” on a subject on which Congress could propose legislation, and thus that the Committee’s subpoena is valid and enforceable.  The Supreme Court granted certiorari in December 2019, and consolidated the case with Trump v. Deutsche Bank AG & Capital One, a related case considering whether the House Committee on Financial Services and the House Intelligence Committee can subpoena documents related to President Trump’s, his family’s, and his businesses’ finances.

On March 4, CAC filed an amicus brief in support of the House Committees that makes three points.  First, we described the long history of legislative investigations in the British Parliament and early American Congresses.  As early as 1792, Congress asked for records from the Washington Administration as part of its investigation of a military defeat, and numerous Members—including James Madison and other Framers—voted in favor of the inquiry.  That investigation was only the first of many other congressional investigations that have followed in the years since.

Second, consistent with this long history of congressional investigations, the Supreme Court has repeatedly affirmed Congress’s broad power to investigate, and it has reiterated that the scope of that power is co-extensive with the scope of Congress’s power to legislate.  For instance, the Supreme Court has held that Congress’s power to investigate encompasses “inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes” and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”

Third, the brief argued that the Committees’ subpoenas plainly serve legitimate legislative interests.  Regarding the Oversight Committee’s subpoena, following information that President Trump might have failed to disclose certain financial holdings in his required federal disclosures, Congress has an interest in obtaining more information about his finances to guide its consideration about whether to strengthen financial disclosure laws and impose new restrictions on presidential conflicts-of-interest.

The brief also responded to President Trump’s argument that this investigation is improper because, in his view, all ethical requirements applied to the President are per se unconstitutional.  That argument has no basis in the Supreme Court’s or any court’s case law and, in any event, we argued the Court should not decide the constitutionality of hypothetical legislation.  Congress may investigate so long as the investigation is not plainly irrelevant to a lawful purpose.  The investigation at issue in this case easily satisfied that deferential standard.

The Supreme Court held, in accordance with precedent and with centuries of history, that Congress has broad investigatory powers and can investigate the executive branch and even the President himself. In addition, the Court rejected the heightened standard for presidential subpoenas put forward by the President and Solicitor General, determining that standard applies only to official communications that might be subject to executive privilege.

However, the Court also held that subpoenas seeking records involving the president must meet a somewhat more stringent standard than other congressional subpoenas. For such subpoenas, the Court held that courts must balance several factors: whether Congress can get the information from a non-presidential source, whether Congress’s reasons are sufficiently valid for requesting the documents, and whether there are any special burdens on the president resulting from complying with the subpoenas. The Court remanded this case to the lower courts to apply this standard to the specific congressional subpoenas at issue.