U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19-cv-01136-APM

TRUMP et al v. COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES et al Assigned to: Judge Amit P. Mehta Case in other court: USCA, 19-05142 Cause: 28:1331 Fed. Question

Date Filed: 04/22/2019 Date Terminated: 05/20/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff DONALD J. TRUMP
Plaintiff TRUMP ORGANIZATION, INC.
Plaintiff TRUMP ORGANIZATION LLC
Plaintiff TRUMP CORPORATION
Plaintiff

represented by William S. Consovoy CONSOVOY MCCARTHY PLLC 1600 Wilson Blvd Suite 700 Arlington, VA 22209 703-423-9423 Email: will@consovoymccarthy.com ATTORNEY TO BE NOTICED
represented by William S. Consovoy (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Consovoy (See above for address) ATTORNEY TO BE NOTICED
represented by William S. Consovoy (See above for address) ATTORNEY TO BE NOTICED

DJT HOLDINGS LLC

represented by William S. Consovoy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
DONALD J. TRUMP REVOCABLE TRUST

represented by William S. Consovoy (See above for address) ATTORNEY TO BE NOTICED

Plaintiff TRUMP OLD POST OFFICE LLC

represented by William S. Consovoy (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
ELIJAH E. CUMMINGS in his ofﬁcial capacity as Chairman of the House Committee on Oversight and Reform TERMINATED: 04/29/2019

Defendant
PETER KENNY in his ofﬁcial capacity as Chief Investigative Counsel of the House Committee on Oversight and Reform TERMINATED: 04/29/2019

Defendant MAZARS USA LLP

represented by Henry Frederick Schuelke , III BLANK ROME, LLP 1825 I Street, NW Suite 1200 Washington, DC 20006 (202) 772-5815 Fax: (202) 572-8371 Email: hschuelke@blankrome.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Interested Party HOMER DOUGLAS COBB, IV

Lawrence H. Wechsler 1825 Eye Street, NW Washington, DC 20006 202-772-5824 Fax: 202-572-8390 Email: lwechsler@blankrome.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerry Daniel Bernstein BLANK ROME LLP 1271 Avenue of the Americas New York, NY 10020 (212) 885-5511 Email: jbernstein@BlankRome.com PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Intervenor Defendant COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES

represented by Douglas N. Letter U.S. HOUSE OF REPRESENTATIVES Ofﬁce of General Counsel 219 Cannon House Ofﬁce Building Washington, DC 20515 (202) 225-9700 Email: douglas.letter@mail.house.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brooks McKinly Hanner OFFICE OF GENERAL COUNSEL FOR U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Ofﬁce Building Washington, DC 20515

Movant DUANE MORLEY COX

(202) 225-9700 Email: brooks.hanner@mail.house.gov ATTORNEY TO BE NOTICED
Josephine T. Morse U.S. HOUSE OF REPRESENTATIVES Ofﬁce of General Counsel 219 Cannon House Ofﬁce Building Washington, DC 20515 (202) 225-9700 Email: jodie.morse@mail.house.gov ATTORNEY TO BE NOTICED
Megan Barbero U.S. HOUSE OF REPRESENTATIVES Ofﬁce of General Counsel 219 Canon House Ofﬁce Building Washington, DC 20515 (202) 225-9700 Email: megan.barbero@mail.house.gov ATTORNEY TO BE NOTICED
Todd Barry Tatelman U.S. HOUSE OF REPRESENTATIVES Ofﬁce of General Counsel 219 Cannon House Ofﬁce Building Washington, DC 20515 (202) 225-9700 Fax: (202) 226-1360 Email: todd.tatelman@mail.house.gov ATTORNEY TO BE NOTICED
represented by DUANE MORLEY COX 1199 Cliffside Drive Logan, UT 84321 (801) 755-3578 PRO SE

Date Filed # Docket Text

04/22/2019

1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0090-6072689) ﬁled by All Plaintiffs (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Elijah E. Cummings, # 3 Summons for Peter Kenny) (Consovoy, William) Modiﬁed to add "All Plaintiffs" on 4/22/2019 (zef, ). (Entered: 04/22/2019)

04/22/2019

2 REQUEST FOR SUMMONS TO ISSUE to Mazars USA LLP ﬁled by DONALD J. TRUMP REVOCABLE TRUST, TRUMP ORGANIZATION LLC, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION, INC., DONALD J. TRUMP, TRUMP CORPORATION, DJT HOLDINGS LLC.(Consovoy, William) (Entered: 04/22/2019)

04/22/2019

Case Assigned to Judge Amit P. Mehta. (zef, ) (Entered: 04/22/2019)

04/22/2019

3 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by TRUMP ORGANIZATION, INC. (Consovoy, William) (Entered: 04/22/2019)

04/22/2019

4 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by TRUMP ORGANIZATION LLC (Consovoy, William) (Entered: 04/22/2019)

04/22/2019

5 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by TRUMP CORPORATION (Consovoy, William) (Entered: 04/22/2019)

04/22/2019

6 SUMMONS (3) Issued Electronically as to ELIJAH E. CUMMINGS, PETER KENNY, MAZARS USA LLP. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 04/22/2019)

04/22/2019

7 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by DJT HOLDINGS LLC (Consovoy, William) (Entered: 04/22/2019)

04/22/2019

8 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by TRUMP OLD POST OFFICE LLC (Consovoy, William) (Entered: 04/22/2019)

04/22/2019

9 MOTION for Temporary Restraining Order by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC. (Attachments: # 1 Memorandum in Support, # 2 Declaration of William S. Consovoy, # 3 Text of Proposed Order, # 4 Local Rule 65.1(a) Certiﬁcate of Counsel) (Consovoy, William) (Entered: 04/22/2019)

04/22/2019

10 Emergency MOTION for Order Shortening Defendants' Time to Respond to TRO Application by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC. (Attachments: # 1 Text of Proposed Order)(Consovoy, William) (Entered: 04/22/2019)

04/22/2019

11 MOTION for Preliminary Injunction by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC. (Attachments: # 1 Memorandum in Support, # 2 Declaration of William S. Consovoy, # 3 Text of Proposed Order)(Consovoy, William) (Entered: 04/22/2019)

04/23/2019

MINUTE ORDER. Consistent with the parties' joint scheduling submission, the court sets the following schedule for further proceedings in this matter. Intervenor-Defendant Committee on Oversight and Reform agrees to postpone the return date on its subpoena to Mazars USA, LLP until seven days after the court rules on Plaintiffs' Motion for Preliminary Injunction. Intervenor-Defendant Committee on Oversight and Reform's and Mazars USA LLP's Opposition(s), if any, shall be ﬁled by Wednesday, May 1, 2019. Plaintiffs' Replies shall be ﬁled by May 8, 2019. Oral Argument is scheduled for May 14, 2019, at 11:00 a.m. in Courtroom 10. In addition, in light of the parties' agreed-upon schedule, Plaintiffs' Emergency Motion to Shorten Time, ECF No. 10, is denied as moot. Plaintiffs' Application for a Temporary Restraining Order, ECF No. 9, is likewise denied as moot. Signed by Judge Amit P. Mehta on 04/23/2019. (lcapm3) (Entered: 04/23/2019)

04/23/2019

Set/Reset Deadlines/Hearings: Oppositions due by 5/1/2019. Replies due by 5/8/2019. Oral Argument for 5/14/2019 at 11:00 AM in Courtroom 10 before Judge Amit P. Mehta. (zjd) (Entered: 04/25/2019)

04/26/2019

12 Consent MOTION to Intervene as Defendant by COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES (Attachments: # 1 Text of Proposed Order)(Letter, Douglas) (Entered: 04/26/2019)

04/29/2019

13 ORDER granting 12 Consent Motion to have Committee on Oversight and Reform of the U.S. House of Representatives Intervene as Defendant. See attached Order for additional details. Signed by Judge Amit P. Mehta on 04/29/2019. (lcapm3) (Entered: 04/29/2019)

04/29/2019

14 WAIVER OF SERVICE by DONALD J. TRUMP REVOCABLE TRUST, TRUMP ORGANIZATION LLC, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION, INC., DONALD J. TRUMP, TRUMP CORPORATION, DJT HOLDINGS LLC. MAZARS USA LLP waiver sent on 4/29/2019, answer due 6/28/2019. (Consovoy, William) (Entered: 04/29/2019)

04/29/2019

15 STIPULATION by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC.. (Consovoy, William) (Entered: 04/29/2019)

05/01/2019 16 NOTICE of Appearance by Douglas N. Letter on behalf of COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES (Letter, Douglas) (Entered: 05/01/2019)

05/01/2019 17 NOTICE of Appearance by Todd Barry Tatelman on behalf of COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES (Tatelman, Todd) (Entered: 05/01/2019)

05/01/2019 18 NOTICE of Appearance by Megan Barbero on behalf of COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES (Barbero, Megan) (Entered: 05/01/2019)

05/01/2019 19 NOTICE of Appearance by Brooks McKinly Hanner on behalf of COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES (Hanner, Brooks) (Entered: 05/01/2019)

05/01/2019

20 Memorandum in opposition to re 11 MOTION for Preliminary Injunction ﬁled by COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES. (Attachments: # 1 Declaration of Greta G. Gao, # 2 Exhibit A to Declaration of Greta G. Gao, # 3 Exhibit B to Declaration of Greta G. Gao)(Letter, Douglas) (Entered: 05/01/2019)

05/01/2019 21 NOTICE of Appearance by Henry Frederick Schuelke, III on behalf of MAZARS USA LLP (Schuelke, Henry) (Entered: 05/01/2019)

05/01/2019 22 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by MAZARS USA LLP (Schuelke, Henry) (Entered: 05/01/2019)

05/01/2019 23 RESPONSE re 11 MOTION for Preliminary Injunction ﬁled by MAZARS USA LLP. (Schuelke, Henry) (Entered: 05/01/2019)

05/08/2019

24 REPLY to opposition to motion re 11 MOTION for Preliminary Injunction ﬁled by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC.. (Consovoy, William) (Entered: 05/08/2019)

05/09/2019

25 ORDER notifying the parties that the court intends to advance 11 Plaintiffs' Motion for Preliminary Injunction to trial on the merits. See attached Order for additional details. Signed by Judge Amit P. Mehta on 05/09/2019. (lcapm3) (Entered: 05/09/2019)

05/09/2019

Set/Reset Deadlines: Objections and/or Supplemental Memoranda due by 5/13/2019 at 5:00 pm. (zjd) (Entered: 05/09/2019)

05/10/2019

26 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Jerry D. Bernstein, :Firm- Blank Rome LLP, :Address- 1271 Avenue of the Americas. Phone No. - (212) 885-5511. Fax No. - (917) 332-3766 Filing fee $ 100, receipt number 0090-6116867. Fee Status: Fee Paid. by MAZARS USA LLP (Attachments: # 1 Declaration Declaration of Jerry D. Bernstein, # 2 Text of Proposed Order Bernstein Decl. Ex. A (Proposed Order))(Schuelke, Henry) (Entered: 05/10/2019)

05/10/2019

MINUTE ORDER granting 26 Motion for Leave to Appear Pro Hac Vice. Attorney Jerry D. Bernstein is hereby admitted pro hac vice to appear in this matter on behalf of Defendant Mazars USA LLP. Signed by Judge Amit P. Mehta on 05/10/2019. (lcapm3) (Entered: 05/10/2019)

05/10/2019 27 NOTICE of Appearance by Lawrence H. Wechsler on behalf of MAZARS USA LLP (Wechsler, Lawrence) (Entered: 05/10/2019)

05/10/2019 28 MOTION for Leave to File An Amicus Brief by DUANE MORLEY COX (Attachments: # 1 Text of Proposed Order)(jf) (Entered: 05/13/2019)

05/13/2019

29 RESPONSE TO ORDER OF THE COURT re 25 Order ﬁled by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC.. (Consovoy, William) (Entered: 05/13/2019)

05/13/2019

30 AFFIDAVIT Supplemental Declaration of William S. Consovoy by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC.. (Consovoy, William) (Entered: 05/13/2019)

05/13/2019 31 RESPONSE TO ORDER OF THE COURT re 25 Order ﬁled by COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES. (Letter, Douglas) (Entered: 05/13/2019)

05/13/2019

MINUTE ORDER. The hearing will proceed tomorrow as scheduled. During the hearing, the court will take up the objections to its 25 Consolidation Order made in Plaintiffs' 29 Response to Order of the Court. Signed by Judge Amit P. Mehta on 05/13/2019. (lcapm3) (Entered: 05/13/2019)

05/14/2019 32 NOTICE of Appearance by Josephine T. Morse on behalf of COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES (Morse, Josephine) (Entered: 05/14/2019)

05/14/2019

Minute Entry for proceedings held before Judge Amit P. Mehta: Oral Argument held on 5/14/2019 re 11 Motion for Preliminary Injunction. Oral Motion by Intervenor Defendant for summary judgment on the pleadings. The record will be open until 5/18/2019. Intervenor Defendant's In-Camera Submission due by 5/16/2019. (Court Reporter: William Zaremba) (zjd) (Entered: 05/14/2019)

05/14/2019

33 TRANSCRIPT OF ORAL ARGUMENT PROCEEDINGS before Judge Amit P. Mehta held on May 14, 2019; Page Numbers: 1-93. Date of Issuance: May 14, 2019. Court Reporter/Transcriber: William Zaremba; Telephone number: (202) 354-3249. Transcripts may be ordered by submitting the Transcript Order Form

For the ﬁrst 90 days after this ﬁling date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court re porter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, PDF or ASCII) may be purchased from the court reporter. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to ﬁle with the court and the court reporter any request to redact personal identiﬁers from this transcript. If no such requests are ﬁled, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the ﬁve personal identiﬁers speciﬁcally covered, is located on our website at www.dcd.uscourts.gov.

Redaction Request due 6/4/2019. Redacted Transcript Deadline set for 6/14/2019. Release of Transcript Restriction set for 8/12/2019.(wz) (Entered: 05/14/2019)

05/17/2019

34 AFFIDAVIT Second Supplemental Declaration of William S. Consovoy by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC.. (Consovoy, William) (Entered: 05/17/2019)

05/20/2019

35 MEMORANDUM OPINION entering judgment in favor of the House Oversight Committee and against Plaintiffs. Please see the attached Memorandum Opinion for additional details. Signed by Judge Amit P. Mehta on 05/20/2019. (lcapm3) Modiﬁed document type on 5/21/2019 (zjd). (Entered: 05/20/2019)

05/20/2019

36 ORDER. For the reasons stated in the 35 Memorandum Opinion, the court enters judgment in favor of the House Oversight Committee and against Plaintiffs. Please see the attached Order for further details. Signed by Judge Amit P. Mehta on 05/20/2019. (lcapm3) (Entered: 05/20/2019)

05/21/2019

37 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 35 Order, 36 Order on Motion for Preliminary Injunction, by DJT HOLDINGS LLC, DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION LLC, TRUMP ORGANIZATION, INC.. Filing fee $ 505, receipt number 0090-6135794. Fee Status: Fee Paid. Parties have been notiﬁed. (Consovoy, William) (Entered: 05/21/2019)

05/21/2019

38 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 37 Notice of Appeal to DC Circuit Court. (jf) (Entered: 05/21/2019)

05/21/2019

USCA Case Number 19-5142 for 37 Notice of Appeal to DC Circuit Court, ﬁled by DONALD J. TRUMP REVOCABLE TRUST, DONALD J. TRUMP, TRUMP CORPORATION, TRUMP ORGANIZATION LLC, TRUMP OLD POST OFFICE LLC, TRUMP ORGANIZATION, INC., DJT HOLDINGS LLC. (zrdj) (Entered: 05/22/2019)

05/21/2019 40 MOTION to Delay Decision by DUANE MORLEY COX (jf) (Entered: 05/30/2019)

05/28/2019 39 MOTION to Consolidate Related Cases For Trial by HOMER DOUGLAS COBB, IV. "LET THIS BE FILED" signed by Judge Amit P. Mehta on 05/28/2019 (jf) (Entered: 05/30/2019)

05/30/2019

MINUTE ORDER denying 39 Motion to Consolidate Related Cases for Trial as moot. Signed by Judge Amit P. Mehta on 05/30/2019. (lcapm3) (Entered: 05/30/2019)

05/31/2019

MINUTE ORDER denying 40 Motion to Delay Decision as moot. Signed by Judge Amit P. Mehta on 05/31/2019. (lcapm3) (Entered: 05/31/2019)

06/24/2019

41 LEAVE TO FILE DENIED- Notice of Filing submitted by Christophe De La Mar Chapman. This document is unavailable as the Court denied its ﬁling. "Leave to ﬁle Denied. Case Closed" Signed by Judge Amit P. Mehta on 6/24/2019. (jf) (Entered: 06/26/2019)

02/21/2020 42 Certiﬁed and transmitted Record on Appeal to US Supreme Court re appeal 37 (Attachment: # 1 Request Letter) (zeg). (Entered: 02/21/2020)

 
 Case 1:19-cv-01136 Document 1 Filed 04/22/19 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DONALD J. TRUMP, 1600 Pennsylvania Avenue NW Washington, D.C. 20500,

THE TRUMP ORGANIZATION, INC., TRUMP ORGANIZATION LLC, THE TRUMP CORPORATION, DJT HOLDINGS LLC, THE DONALD J. TRUMP REVOCABLE TRUST, 725 Fifth Avenue New York, NY 10022,

Civil Action No. _______________

TRUMP OLD POST OFFICE LLC, 1100 Pennsylvania Avenue NW Washington, D.C. 20004,

Plaintiffs,

v.

ELIJAH E. CUMMINGS, in his official capacity as Chairman of the House Committee on Oversight and Reform, PETER KENNY, in his official capacity as Chief Investigative Counsel of the House Committee on Oversight and Reform, 2157 Rayburn House Office Building Washington, D.C. 20515,

MAZARS USA LLP, 135 West 50th Street New York, NY 10020,

Defendants.

COMPLAINT Plaintiffs bring this action against Defendants for declaratory and injunctive relief and allege

as follows:

Case 1:19-cv-01136 Document 1 Filed 04/22/19 Page 2 of 14
INTRODUCTION 1. The Democrat Party, with its newfound control of the U.S. House of Representatives, has declared all-out political war against President Donald J. Trump. Subpoenas are their weapon of choice. 2. Democrats are using their new control of congressional committees to investigate every aspect of President Trump’s personal finances, businesses, and even his family. Instead of working with the President to pass bipartisan legislation that would actually benefit Americans, House Democrats are singularly obsessed with finding something they can use to damage the President politically. They have issued more than 100 subpoenas and requests to anyone with even the most tangential connection to the President. 3. This case involves one of those subpoenas. Last week, Defendant Elijah E. Cummings invoked his authority as Chairman of the House Oversight Committee to subpoena Mazars USA LLP—the longtime accountant for President Trump and several Trump entities (all Plaintiffs here). Chairman Cummings asked Mazars for financial statements, supporting documents, and communications about Plaintiffs over an eight-year period—mostly predating the President’s time in office. 4. Chairman Cummings requested this information because Michael Cohen—a felon who has pleaded guilty to lying to Congress—told the House Oversight Committee that the President had misrepresented his net worth while he was a private citizen. The Committee, according to Chairman Cummings, now needs to “investigate whether the President may have engaged in illegal conduct.” The Chairman claims he can do so because the Oversight Committee can supposedly investigate “any matter at any time.” 5. Chairman Cummings has ignored the constitutional limits on Congress’ power to investigate. Article I of the Constitution does not contain an “Investigations Clause” or an “Oversight
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Case 1:19-cv-01136 Document 1 Filed 04/22/19 Page 3 of 14
Clause.” It gives Congress the power to enact certain legislation. Accordingly, investigations are legitimate only insofar as they further some legitimate legislative purpose. No investigation can be an end in itself. And Congress cannot use investigations to exercise powers that the Constitution assigns to the executive or judicial branch.
6. Chairman Cummings’ subpoena of Mazars lacks a legitimate legislative purpose. There is no possible legislation at the end of this tunnel; indeed, the Chairman does not claim otherwise. With this subpoena, the Oversight Committee is instead assuming the powers of the Department of Justice, investigating (dubious and partisan) allegations of illegal conduct by private individuals outside of government. Its goal is to expose Plaintiffs’ private financial information for the sake of exposure, with the hope that it will turn up something that Democrats can use as a political tool against the President now and in the 2020 election.
7. Because Chairman Cummings’ subpoena to Mazars threatens to expose Plaintiffs’ confidential information and lacks “a legitimate legislative purpose,” this Court has the power to declare it invalid and to enjoin its enforcement. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 501 n.14 (1975) (endorsing U.S. Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1259-60 (D.C. Cir. 1973)). Plaintiffs are entitled to that relief.
PARTIES 8. Plaintiff Donald J. Trump is the 45th President of the United States. President Trump brings this suit solely in his capacity as a private citizen. 9. Plaintiff The Trump Organization, Inc. is a New York corporation with its principal place of business at 725 Fifth Avenue, New York, NY 10022. 10. Plaintiff Trump Organization LLC is a New York limited liability company with its principal place of business at 725 Fifth Avenue, New York, NY 10022.
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Case 1:19-cv-01136 Document 1 Filed 04/22/19 Page 4 of 14
11. Plaintiff The Trump Corporation is a New York corporation with its principal place of business at 725 Fifth Avenue, New York, NY 10022.
12. Plaintiff DJT Holdings LLC is a Delaware limited liability company with its principal place of business at 725 Fifth Avenue, New York, NY 10022.
13. Plaintiff The Donald J. Trump Revocable Trust is a trust created and operating under the laws of New York.
14. Plaintiff Trump Old Post Office LLC is a Delaware limited liability company with its principal place of business at 1100 Pennsylvania Avenue NW, Washington, D.C. 20004.
15. Defendant Elijah E. Cummings is the U.S. Representative for Maryland’s 7th District and the Chairman of the House Committee on Oversight and Reform. He is a member of the Democrat party. Chairman Cummings issued the subpoena in question and is sued in his official capacity.
16. Defendant Peter Kenny is the Chief Investigative Counsel for the House Committee on Oversight and Reform. He signed and served the subpoena in question and is sued in his official capacity.
17. Defendant Mazars USA LLP is a New York limited liability partnership with its principal executive office at 135 West 50th Street, New York, NY 10020. Mazars is an accounting firm and the recipient of Chairman Cummings’ subpoena. Mazars is a defendant to ensure that Plaintiffs can obtain effective relief.
JURISDICTION & VENUE 18. This Court has subject-matter jurisdiction because this case arises under the Constitution and laws of the United States. 28 U.S.C. §§1331, 2201. 19. Venue is proper because Chairman Cummings officially resides in the District. 28 U.S.C. §1391.
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Case 1:19-cv-01136 Document 1 Filed 04/22/19 Page 5 of 14
BACKGROUND I. Challenges to Congressional Subpoenas
20. Not infrequently, federal courts adjudicate the legality of congressional subpoenas. Most such cases follow a familiar fact pattern: Congress issues a subpoena, the target does not comply, Congress tries to force compliance in federal court, and the target raises the illegality of the subpoena as a defense.
21. But this defensive posture is not the only way to challenge a congressional subpoena. When Congress “seeks information directly from a party,” that party “can resist and thereby test the subpoena.” Eastland, 421 U.S. at 501 n.14. But when Congress “seeks that same information from a third person,” this option is not available; the third party might not have an interest in protecting the information or resisting the subpoena, and its “compliance” with the subpoena “could frustrate any judicial inquiry.” Id. For that reason, the law allows the person whose information will be exposed to sue in federal court for an “injunction or declaratory judgment” to block the subpoena’s “issuance, service on, or enforcement against” the “third party.” Eastland, 488 F.2d at 1259. The key question in such a case is “whether a legitimate legislative purpose is present.” Eastland, 421 U.S. at 501.
22. The “legitimate legislative purpose” requirement stems directly from the Constitution. “The powers of Congress … are dependent solely on the Constitution,” and “no express power in that instrument” allows Congress to investigate individuals or to issue compulsory process. Kilbourn v. Thompson, 103 U.S. 168, 182-89 (1880). The Constitution instead permits Congress to enact certain kinds of legislation. See, e.g., Art. I, §8. Thus, Congress’ power to investigate “is justified solely as an adjunct to the legislative process.” Watkins, 354 U.S. at 197. “Congress is not invested with a general power to inquire into private affairs. The subject of any inquiry always must be one on which legislation could be had.” Eastland, 421 U.S. at 504 n.15 (cleaned up); see also Quinn v. United States, 349 U.S. 155, 161 (1955) (“[T]he power to investigate” does not “extend to an area in which Congress is forbidden to legislate.”).
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Case 1:19-cv-01136 Document 1 Filed 04/22/19 Page 6 of 14
23. “Oversight” and “transparency,” in a vacuum, are not legitimate legislative purposes that can justify subpoenaing a private citizen. For more than a century, in fact, the Supreme Court has been quite “sure” that neither the House nor Senate “possesses the general power of making inquiry into the private affairs of the citizen.” Kilbourn, 103 U.S. at 190. “[T]here is no congressional power to expose for the sake of exposure.” Watkins, 354 U.S. at 200. “No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress.” Id. at 187.
24. Additionally, because Congress must have a legitimate legislative purpose, it cannot use subpoenas to exercise “any of the powers of law enforcement.” Quinn, 349 U.S. at 161. Those powers “are assigned under our Constitution to the Executive and the Judiciary.” Id. Put simply, Congress is not “a law enforcement or trial agency,” and congressional investigations conducted “for the personal aggrandizement of the investigators” or “to ‘punish’ those investigated” are “indefensible.” Watkins, 354 U.S. at 187. Our tripartite system of separated powers requires that “any one of the[] branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.” Kilbourn, 103 U.S. at 190-91.
25. Finally, when a subpoena is issued by a single committee, any legislative purpose is not legitimate unless it falls within that committee’s jurisdiction. “The theory of a committee inquiry is that the committee members are serving as the representatives of the parent assembly in collecting information for a legislative purpose.” Watkins, 354 U.S. at 200. Congress therefore must “spell out that group’s jurisdiction and purpose with sufficient particularity … in the authorizing resolution,” which “is the committee’s charter.” Id. at 201. The committee “must conform strictly to the resolution.” Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978). And when an investigation is “novel” or “expansive,” courts will construe the committee’s jurisdiction “narrowly.” Tobin v. United States, 306 F.2d 270, 275 (D.C. Cir. 1962).
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II. House Democrats’ Campaign of Abusive Investigations 26. After the 2018 midterm elections, the Democrat party won a majority of seats in the
House. Every House committee in the current Congress is thus chaired by a Democrat. 27. On the night of the election, soon-to-be Speaker Nancy Pelosi announced that
“tomorrow will be a new day in America” because House Democrats will use their new majority to enact “checks and balances to the Trump administration.” And “subpoena power,” she explained a few days later, is “a great arrow to have in your quiver.” Chairman Cummings echoed the Speaker’s sentiments, stating that “it’s a new day” and that “[President Trump] has to be accountable.” He added that “we’ve got to address this issue of exposing President Trump.” “Congress is going to force transparency on this president,” another Democrat congressional aide repeated. “Once there is transparency, I am sure there are going to be a lot of questions that flow from that.”
28. The Democrats’ statements about “checks and balances” and “transparency” were not referring to legislation. Instead, according to news outlets that interviewed party leaders and aides shortly after the election, House Democrats meant that they were going to spend the next two years launching a “fusillade” of subpoenas in order to “drown Trump with investigations,” “turn Trump’s life upside down,” and “make Trump’s life a living hell.”
29. Prominent Democrats were quite candid about their party’s mission. Representative John Yarmuth, now chair of the House Budget Committee, stated that the new House majority would be “brutal” for President Trump: “We’re going to have to build an air traffic control tower to keep track of all the subpoenas flying from here to the White House.” Another senior Democrat official revealed that, from November 2018 to January 2019, House Democrats were busy preparing a “subpoena cannon” to fire at President Trump based on a “wish-list” of nearly 100 investigatory topics. Representative Nita Lowey, now chair of the House Appropriations Committee, confirmed a
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long list of topics that House Democrats planned to investigate and stated, “We have our boxing gloves on. I’m ready. And so is Nancy.”
30. The Democrats’ “focus,” according to then–Minority Whip Steny Hoyer, would be examining “the President in terms of what [business] interests he has” from his time as a private citizen. That focus would include the President’s family. Future Oversight Committee member Alexandria Ocasio-Cortez, for instance, responded to a joke by the President’s son Donald Trump Jr. with an explicit threat: “Please keep it coming Jr – it’s definitely a ‘very, very large brain’ idea to troll a member of a body that will have subpoena power in a month.” The Democrats want this personal information in the hopes they will find something they can use to score political points against the President leading up to the 2020 election.
31. House Democrats are executing their plan in earnest. Recently, several House committees issued a flurry of subpoenas and requests for information about the President’s family, personal finances, and businesses. Just one request by Chairman Nadler of the House Judiciary Committee, for example, asked 81 different individuals for information about President Trump.
32. A few days ago, House Republicans discovered that Chairman Cummings had executed secret memoranda of understanding with Chairman Adam Schiff of the House Permanent Select Committee on Intelligence and Chairwoman Maxine Waters of the House Financial Services Committee. In the memoranda, the Chairs agreed to coordinate their subpoenas in order to inflict maximum political damage on President Trump. According to one congressional official with knowledge of the memoranda, they are “an agreement to conspire and coordinate their efforts to attack and investigate POTUS” by targeting his business and financial records.
33. Last Monday, Chairman Cummings sent one such subpoena to Mazars—Plaintiffs’ longtime accountant. That subpoena is the subject of this lawsuit.
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III. Chairman Cummings’ Subpoena to Mazars 34. The Mazars subpoena is based on one of the worst examples of the House Democrats’
zeal to attack President Trump under the guise of investigations: Michael Cohen’s testimony to the House Oversight Committee on February 27, 2019.
35. The Cohen hearing was a partisan stunt, not a good-faith effort to obtain accurate testimony from a reliable witness. Cohen is a convicted liar; before his February hearing, he had pleaded guilty to several federal crimes including making false statements to Congress. Cohen’s testimony was orchestrated by his lawyer Lanny Davis, a political operative for the Democrat party, and Cohen met extensively with House Democrats about the contents of his testimony before he gave it. The reason that Cohen testified, moreover, is so Chairman Cummings and other Democrats would support his request for leniency during his federal sentencing. And according to Ranking Member Jim Jordan, Cohen told several additional lies to Congress in his February testimony.
36. Nevertheless, Chairman Cummings seized on Cohen’s allegation that certain financial statements—which Mazars had prepared for President Trump while he was a private citizen— contained inaccuracies. Citing Cohen’s testimony, Chairman Cummings wrote to Mazars on March 20, 2019, asking it to produce the following information about President Trump:
With respect to Donald J. Trump, Donald J. Trump Revocable Trust, the Trump Organization Inc., the Trump Organization LLC, the Trump Corporation, DJT Holdings LLC, the Trump Old Post Office LLC, the Trump Foundation, and any parent, subsidiary, affiliate, joint venture, predecessor, or successor of the foregoing: 1. All statements of financial condition, annual statements, periodic financial reports
and independent auditors’ reports prepared, compiled, reviewed, or audited by Mazars USA LLP or its predecessor, WeiserMazars LLP; 2. Without regard to time, all engagement agreements or contracts related to the preparation, compilation, review, or auditing of the items described in Request Number 1; 3. All underlying, supporting, or source documents and records used in the preparation, compilation, review, or auditing of items described in Request
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Number 1, or any summaries of such documents and records relied upon, or any requests for such documents and records; and 4. All memoranda, notes, and communications related to the preparation, compilation, review, or auditing of the items described in Request Number 1, including, but not limited to: a. all communications between Donald Bender and Donald J. Trump or any
employee or representative of the Trump Organization; and b. all communications related to potential concerns that records, documents,
explanations, or other information, including significant judgments, provided by Donald J. Trump or other individuals from the Trump Organization, were incomplete, inaccurate, or otherwise unsatisfactory. Unless otherwise noted, the time period covered by this request is from January 1, 2009, to the present. 37. Chairman Cummings did not consult with Committee Republicans before sending his request to Mazars. When they discovered the request, Representatives Jordan and Mark Meadows— the Ranking Member of the Oversight Committee and the Subcommittee on Government Operations, respectively—objected. They wrote Mazars informing it that, because Chairman Cummings’ request seeks “information and material about President Trump’s personal finances … well before [he] was even a candidate for federal office,” it “does not appear to have a valid legislative purpose and instead seems to seek information to embarrass a private individual.” The Ranking Members repeated their concerns in a letter to Chairman Cummings, explaining that the Chairman’s request “seems to examine facts relating to a transaction that never materialized” and other “information [from] … well before the President was even a candidate.” This is not an attempt at “legitimate oversight,” they added; its only purpose is “to embarrass President Trump” and to maintain House Democrats’ “repeated partisan attacks on the President.” 38. Mazars, through its outside counsel, wrote back to Chairman Cummings on March 27. Mazars informed Chairman Cummings that it “cannot voluntarily turn over the documents.”
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39. Mazars was correct. Under its contract with Plaintiffs, Mazars must abide by the American Institute of CPAs’ ethical rules, which prohibit accountants from “disclos[ing] any confidential client information without the specific consent of the client.” AICPA Code of Prof’l Conduct §1.700.001.01. New York law imposes the same duty. See 8 N.Y.C.R.R. §29.10(c) (“[U]nprofessional conduct” by accountants includes the “revealing of personally identifiable facts, data or information obtained in a professional capacity without the prior consent of the client.”). A congressional subpoena does not relieve Mazars from these duties, unless the subpoena is “validly issued and enforceable.” AICPA Code §1.700.001.02.
40. Chairman Cummings thus tried to craft a subpoena that would hold up in court. Sensing this would be a tall order, the Chairman waited until the House left for its Easter break to circulate a memorandum about the subpoena and then to issue it. This maneuver allowed him to subpoena Mazars without first conferring with Committee Republicans and having to defend his reasoning at an open meeting of the Oversight Committee.
41. Chairman Cummings’ memorandum, dated April 12, 2019, again cited Cohen’s testimony as the basis for subpoenaing Mazars. The Chairman also suggested that “news reports have raised additional concerns regarding the President’s financial statements and representations.” But the first “news report”—a blog post from MSNBC’s Rachel Maddow Show—merely repeated Cohen’s testimony. And the second “news report”—a March 2019 article from the Washington Post—quoted legal experts who explained why the financial statements did not break any laws. The Chairman’s memorandum nonetheless stated that the Committee needed to investigate “whether the President has been accurate in his financial reporting.”
42. Ranking Member Jordan again objected to Chairman Cummings’ planned subpoena. In an April 15 letter and memorandum, the Ranking Member explained that the subpoena “is an unpreceded abuse of the Committee’s subpoena authority to target and expose the private financial
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information of the President of the United States” for “political gain.” The subpoena is an impermissible attempt to “expose the private affairs of individuals,” the Ranking Member explained, because “Chairman Cummings has cited no specific law or legislative proposal for which he requires eight years of sensitive, personal financial information about President Trump.” Ranking Member Jordan also noted his deep concern that Chairman Cummings would selectively leak whatever information he obtained from Mazars, citing examples where the Chairman had strategically leaked similar sensitive information in the past.
43. Despite the Ranking Members’ objections, Chairman Cummings issued the subpoena to Mazars that same day. The subpoena was identical to the Chairman’s initial request for information, except that it asked for information from “2011 through 2018” instead of “2009 to the present.” The subpoena currently orders Mazars to comply by noon on April 29, 2019.
44. Ranking Member Jordan responded to the subpoena in a letter dated April 17. The subpoena, he explained, “is an act of raw partisan politics meant only to further your obsession with attacking the President of the United States.” Chairman Cummings “did not dispute the fact that [his] subpoena to Mazars is part of a coordinated and carefully managed campaign to use congressional oversight for political gain,” the Ranking Member observed, and never “articulated how the sensitive, personal financial information [he] seek[s] will advance a legitimate legislative purpose.”
45. Plaintiffs bring this suit to challenge the validity and enforceability of Chairman Cummings’ subpoena. Now that the subpoena has issued, Mazars faces an unfair choice: ignore the subpoena and risk contempt of Congress, or comply with the subpoena and risk liability to Plaintiffs if the subpoena is invalid or unenforceable. To resolve these conflicting commands, the D.C. Circuit has instructed third-party accountants like Mazars to hold onto the subpoenaed materials until the dispute over the subpoena’s validity is finally resolved in court: “[AICPA] Rule 301 … explains that it ‘shall not be construed ... to affect in any way the member’s obligation to comply with a validly issued
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and enforceable subpoena or summons.’ But [the client] challenges the enforceability of a subpoena …. Thus [the accountant] c[an] refuse to produce the documents, thereby allowing [the client to litigate the subpoena], without violating its obligation to comply with enforceable subpoenas.” United States v. Deloitte LLP, 610 F.3d 129, 142 (D.C. Cir. 2010). Congress thus cannot take any action against Mazars until this litigation is finally resolved.
CLAIM FOR RELIEF 46. Plaintiffs incorporate all their prior allegations. 47. Chairman Cummings’ subpoena is invalid and unenforceable because it has no legitimate legislative purpose. 48. The subpoena seeks to investigate events that occurred while President Trump was a private citizen, years before he was even a candidate for public office. 49. The subpoena seeks to investigate events that could not possibly lead to legislation within the Oversight Committee’s statutory jurisdiction and constitutional authority. 50. The subpoena is an attempt to investigate and adjudicate possible violations of federal law by private individuals—law-enforcement powers that only the executive and judicial branches can exercise. WHEREFORE, Plaintiffs ask this Court to enter judgment in their favor and to provide the following relief: a. A declaratory judgment that Chairman Cummings’ subpoena is invalid and unenforceable; b. A permanent injunction quashing Chairman Cummings’ subpoena; c. A permanent injunction prohibiting Chairman Cummings and Mr. Kenny from taking any actions to enforce the subpoena, from imposing sanctions for noncompliance with the subpoena, and from inspecting, using, maintaining, or disclosing any information obtained as a result of the subpoena;
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d. A temporary restraining order and preliminary injunction prohibiting Mazars from producing

the requested information, and prohibiting Chairman Cummings and Mr. Kenny from taking

any actions to enforce the subpoena, until the subpoena’s validity has been finally adjudicated

on the merits;

e. Plaintiffs’ reasonable costs and expenses, including attorneys’ fees; and

f. All other preliminary and permanent relief to which Plaintiffs are entitled.

Respectfully submitted,

Dated: April 22, 2019

s/ William S. Consovoy T

Stefan C. Passantino (D.C. Bar #480037) MICHAEL BEST & FRIEDRICH LLP 1000 Maine Ave. SW, Ste. 400 Washington, D.C. 20024 (202) 747-9582 spassantino@michaelbest.com
Counsel for The Trump Organization, Inc., Trump Organization LLC, The Trump Corporation, DJT Holdings LLC, The Donald J. Trump Revocable Trust, and Trump Old Post Office LLC

William S. Consovoy (D.C. Bar #493423) Cameron T. Norris CONSOVOY MCCARTHY PARK PLLC 3033 Wilson Blvd., Ste. 700 Arlington, VA 22201 (703) 243-9423 will@consovoymccarthy.com cam@consovoymccarthy.com
Patrick Strawbridge CONSOVOY MCCARTHY PARK PLLC Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 patrick@consovoymccarthy.com

Counsel for President Donald J. Trump

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 Case 1:19-cv-01136-APM Document 25 Filed 05/09/19 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

DONALD J. TRUMP, et al.

)

)

Plaintiffs,

)

)

v.

)

)

COMMITTEE ON OVERSIGHT AND

)

REFORM OF THE U.S. HOUSE OF

)

REPRESENTATIVES, et al.

)

)

Defendants.

)

_________________________________________ )

Case No. 19-cv-01136 (APM)

ORDER

This matter is presently scheduled for a hearing on Plaintiffs’ Motion for Preliminary

Injunction on May 14, 2019. After reviewing the parties’ briefs, and as permitted by Federal Rule

of Civil Procedure 65(a)(2), the court intends to “advance the trial on the merits and consolidate it

with the hearing” on the motion for preliminary injunction. Fed. R. Civ. P. 65(a)(2); see also

Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (requiring the court to give the parties

“clear and unambiguous notice” of the court’s intention to consolidate under Rule 65(a)(2)

(citation omitted)). The sole question before the court—Is the House Oversight Committee’s

issuance of a subpoena to Mazars USA LLP for financial records of President Donald J. Trump

and various associated entities a valid exercise of legislative power?—is fully briefed, and the

court can discern no benefit from an additional round of legal arguments. Nor is there an obvious

need to delay ruling on the merits to allow for development of the factual record.

Case 1:19-cv-01136-APM Document 25 Filed 05/09/19 Page 2 of 2
If any party objects to consolidation under Rule 65(a)(2), it shall file a written objection no later than 5:00 pm on May 13, 2019. Additionally, if any party wishes to supplement the factual record, it should do so by 5:00 p.m. on May 13, 2019.

Dated: May 9, 2019

Amit P. Mehta United States District Court Judge

2

 
 Case 1:19-cv-01136-APM Document 35 Filed 05/20/19 Page 1 of 41

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

DONALD J. TRUMP, et al.

)

)

Plaintiffs,

)

)

v.

)

)

COMMITTEE ON OVERSIGHT AND

)

REFORM OF THE U.S. HOUSE OF

)

REPRESENTATIVES, et al.

)

)

Defendants.

)

_________________________________________ )

Case No. 19-cv-01136 (APM)

MEMORANDUM OPINION

I. INTRODUCTION

I do, therefore, . . . solemnly protest against these proceedings of the House of Representatives, because they are in violation of the rights of the coordinate executive branch of the Government, and subversive of its constitutional independence; because they are calculated to foster a band of interested parasites and informers, ever ready, for their own advantage, to swear before ex parte committees to pretended private conversations between the President and themselves, incapable, from their nature, of being disproved; thus furnishing material for harassing him, degrading him in the eyes of the country . . .

- President James Buchanan1

These words, written by President James Buchanan in March 1860, protested a resolution

adopted by the U.S. House of Representatives to form a committee—known as the Covode

Committee—to investigate whether the President or any other officer of the Executive Branch had

sought to influence the actions of Congress by improper means. See Buchanan at 218–21.

1 JAMES BUCHANAN, THE WORKS OF JAMES BUCHANAN VOLUME XII 225–26 (John Bassett Moore ed., J.B. Lippincott Company) (1911) [hereinafter Buchanan].

Case 1:19-cv-01136-APM Document 35 Filed 05/20/19 Page 2 of 41
Buchanan “cheerfully admitted” that the House of Representatives had the authority to make inquiries “incident to their legislative duties,” as “necessary to enable them to discover and to provide the appropriate legislative remedies for any abuses which may be ascertained.” Id. at 221. But he objected to the Covode Committee’s investigation of his conduct. He maintained that the House of Representatives possessed no general powers to investigate him, except when sitting as an impeaching body. Id. Buchanan feared that, if the House were to exercise such authority, it “would establish a precedent dangerous and embarrassing to all my successors, to whatever political party they might be attached.” Id. at 226.
Some 160 years later, President Donald J. Trump has taken up the fight of his predecessor. On April 15, 2019, the Committee on Oversight and Reform of the House of Representatives issued a subpoena for records to Mazars USA LLP, a firm that has provided accounting services to President Trump. The subpoena called for Mazars to produce financial records and other documents relating to President Trump personally as well as various associated businesses and entities dating back to 2011—years before he declared his candidacy for office. The decision to issue the subpoena came about after the President’s former lawyer and confidant, Michael Cohen, testified before the House Oversight Committee that the President routinely would alter the estimated value of his assets and liabilities on financial statements, depending on the purpose for which a statement was needed. For instance, Cohen said that the President provided inflated financial statements to a bank to obtain a loan to purchase a National Football League franchise. But when it came time to calculate his real estate taxes, the President would deflate the value of certain assets. To support his accusations, Cohen produced financial statements from 2011, 2012, and 2013, at least two of which were prepared by Mazars.
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Echoing the protests of President Buchanan, President Trump and his associated entities are before this court, claiming that the Oversight Committee’s subpoena to Mazars exceeds the Committee’s constitutional power to conduct investigations. The President argues that there is no legislative purpose for the subpoena. The Oversight Committee’s true motive, the President insists, is to collect personal information about him solely for political advantage. He asks the court to declare the Mazars subpoena invalid and unenforceable.
Courts have grappled for more than a century with the question of the scope of Congress’s investigative power. The binding principle that emerges from these judicial decisions is that courts must presume Congress is acting in furtherance of its constitutional responsibility to legislate and must defer to congressional judgments about what Congress needs to carry out that purpose. To be sure, there are limits on Congress’s investigative authority. But those limits do not substantially constrain Congress. So long as Congress investigates on a subject matter on which “legislation could be had,” Congress acts as contemplated by Article I of the Constitution.
Applying those principles here compels the conclusion that President Trump cannot block the subpoena to Mazars. According to the Oversight Committee, it believes that the requested records will aid its consideration of strengthening ethics and disclosure laws, as well as amending the penalties for violating such laws. The Committee also says that the records will assist in monitoring the President’s compliance with the Foreign Emoluments Clauses. These are facially valid legislative purposes, and it is not for the court to question whether the Committee’s actions are truly motivated by political considerations. Accordingly, the court will enter judgment in favor of the Oversight Committee.
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II. BACKGROUND A. The 116th Congress and the House Oversight Committee On January 3, 2019, the 116th Congress began with the Democratic Party controlling a
majority of seats in the U.S. House of Representatives. One of the House’s first actions was to adopt the “Rules of the House of Representatives,” which govern proceedings during the two-year term. This vote took place on January 9, 2019.2 Rule X of the adopted House Rules, titled “Organization of Committees,” establishes various standing committees and their respective jurisdictions.3 Among the standing committees with the broadest purview is the Committee on Oversight and Reform (“Oversight Committee”). Its subject areas of primary jurisdiction range from the lofty—“[o]verall economy, efficiency, and management of government operations”—to the mundane—“[f]ederal paperwork reduction.” House Rules at 8. If there is a common thread running through the subjects within the Oversight Committee’s jurisdiction, it is the oversight of the operations and administration of the Executive Branch.
Each of the House’s standing committees possess “[g]eneral oversight responsibilities.” Id. at 9. Those responsibilities are meant to assist the House in (1) “its analysis, appraisal, and evaluation of” “the application, administration, execution, and effectiveness of Federal laws” and (2) “conditions and circumstances that may indicate the necessity or desirability of enacting new or additional legislation,” and (3) “its formulation, consideration, and enactment of changes in Federal laws, and of such additional legislation as may be necessary or appropriate.” Id. Some of the House’s standing committees have “[s]pecial oversight functions.” Id. at 10. The Oversight
2 Final Vote Results for Roll Call 19, Adopting the Rules of the House of Representatives for the One Hundredth Sixteenth Congress, http://clerk.house.gov/evs/2019/roll019.xml (last visited May 20, 2019). 3 Rules of the House of Representatives, 116th Congress at 6 (Jan. 11, 2019), https://rules.house.gov/sites/democrats rules house.gov/files/116-1/116-House-Rules-Clerk.pdf (last visited May 20, 2019) [hereinafter House Rules].
4

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Committee is one of them. Its “special oversight function” is described as involving the “review and study on a continuing basis the operation of Government activities at all levels, including the Executive Office of the President.” Id. The Executive Office of the President consists of a small group of federal agencies that most immediately aid the President on matters of policy, politics, administration, and management. The President’s closest advisors typically are situated in the Executive Office.4
Rule X also vests the Oversight Committee with special authority to conduct investigations. According to the Rule, “the Committee on Oversight and Reform may at any time conduct investigations of any matter without regard to [other rules] conferring jurisdiction over the matter to another standing committee.” House Rules at 11 (emphasis added). In other words, the Oversight Committee is empowered to investigate as to any subject matter, even in those areas that are expressly assigned to other committees. No other committee possesses such sweeping investigative authority.
The Oversight Committee’s broad investigative power is not new. In each of the four preceding Congresses—all controlled by the Republican Party, including during the final six years of the Obama Administration—the House Oversight Committee enjoyed the same power “at any time [to] conduct investigations of any matter.”5
4 See generally Congressional Research Service, “The Executive Office of the President: An Historical Overview,” Nov. 26, 2008, https://fas.org/sgp/crs/misc/98-606.pdf (last visited May 20, 2019). 5 Rules of the House of Representatives, 115th Congress at 505 (2017), https://www.govinfo.gov/content/pkg/HMAN115/pdf/HMAN-115.pdf, (last visited May 20, 2019); Rules of the House of Representatives, 114th Congress at 497 (2015), https://www.govinfo.gov/content/pkg/HMAN-114/pdf/HMAN-114.pdf (last visited May 20, 2019); Rules of the House of Representatives, 113th Congress at 496 (2013), https://www.govinfo.gov/content/pkg/HMAN113/pdf/HMAN-113-houserules.pdf (last visited May 20, 2019); Rules of the House of Representatives, 112th Congress at 492 (2011), https://www.govinfo.gov/content/pkg/HMAN-112/pdf/HMAN-112.pdf (last visited May 20, 2019).
5

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B. The Oversight Committee’s Investigation From the start of the 116th Congress, the Oversight Committee, now led by a Democrat, moved aggressively to use its investigative powers. It did not adopt a resolution or issue a public statement defining the scope of what it intended to investigate. Instead, it sent a series of letters to the White House and elsewhere seeking various records regarding the President’s personal finances, as well as records concerning his businesses and related entities. For instance, days before the new Congress started, the incoming Chairman of the Oversight Committee, Representative Elijah Cummings, wrote the President’s personal lawyer, Sheri Dillon, and the Executive Vice President and Chief Compliance Counsel of the Trump Organization, George Sorial, asking them to produce previously requested “documents regarding the Trump Organization’s process for identifying payments from foreign governments and foreigngovernment controlled entities . . .”6 In a different letter, the Chairman asked the General Services Administration (“GSA”), the agency that manages federally owned and leased buildings, to produce records concerning the federal government’s lease with the Trump Organization for the Old Post Office Building, which houses the Trump International Hotel in Washington, D.C.7 Chairman Cummings indicated that he sought these records for multiple reasons, including the concern that the lease might violate the Constitution’s Emoluments Clauses. Cummings’ April
6 Letter from the Honorable Elijah E. Cummings, Ranking Member, House Comm. on Oversight & Reform, to Sheri A. Dillon, Counsel to Donald Trump, and George A. Sorial, Exec. Vice President and Chief Compliance Counsel, Trump Org. (Dec. 19, 2018), https://tinyurl.com/Dec19CummingsDillonLetter (last visited May 20, 2019). 7 Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, et al., to Emily Murphy, Administrator, Gen. Servs. Admin. (Apr. 12, 2019), https://tinyurl.com/Apr12CummingsHorneLetter (last visited May 20, 2019) [hereinafter Cummings’ April 12th GSA Letter].
6

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12th GSA Letter at 1.8 These are but two examples of the types of records requests made by the Oversight Committee at the start of the 116th Congress.
The investigative demand that sparked this lawsuit was issued on January 8, 2019. On that day, Chairman Cummings wrote to Pat Cipollone, the White House Counsel, asking the President to produce “documents related to President Trump’s reporting of debts and payments to his personal attorney, Michael Cohen, to silence women alleging extramarital affairs with the President before the election.”9 The prior year, in May 2018, the Office of Government Ethics had concluded that the President should have disclosed a payment made by Cohen as a liability on the President’s public financial disclosure report.10 Chairman Cummings noted in the January 8th letter that the Oversight Committee “has jurisdiction over a wide range of matters, including the Ethics in Government Act of 1978,” a law that requires “all federal officials, including the President, to publicly disclose financial liabilities that could impact their decision-making.” Cummings’ January 8th Letter at 1. On February 1, 2019, the White House Counsel responded to

8 This request for documents was not new. During the early months of the Trump Administration, Representative

Cummings, who was then the Ranking Member on the Oversight Committee, along with other Democratic members,

asked GSA to produce records regarding the Old Post Office lease. See Cummings v. Murphy, 321 F. Supp. 3d 92,

97–99 (D.D.C. 2018). When GSA did not cooperate, the Members brought a lawsuit to force it to disclose the records.

See generally id. This judge handled that very matter and ruled that the Democratic members lacked standing to bring

the case. See id. at 101–17. That decision is pending before the D.C. Circuit.

9 Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Pat Cipollone,

White House Counsel (Jan. 8, 2019), https://tinyurl.com/Jan8CummingsCipolloneLetter (last visited May 20, 2019)

[hereinafter Cummings’ January 8th Letter]. Then-Ranking Member Cummings made a request for similar records in

September 2018, which went unanswered. See Letter from the Honorable Elijah E. Cummings, Ranking Member,

House Comm. on Oversight & Reform, to Donald F. McGahn II, White House Counsel, and George A. Sorial, Exec.

Vice President and Chief Compliance Counsel, Trump Org. (September 12, 2018),

https://oversight house.gov/sites/democrats.oversight.house.gov/files/documents/2018-09-

12.EEC%20to%20McGahn-WH%20Sorial-

TrumpOrg%20re%20Financial%20Disclosures%20Cohen%20Payments.pdf (last visited May 20, 2019).

10 Letter from David J. Apol, Acting Dir., Office of Gov’t Ethics, to Rod J. Rosenstein, Deputy Att’y Gen., Dep’t of

Justice

(May

16,

2018),

https://oge.gov/web/OGE.nsf/0/D323FD5ABB1FD2358525828F005F4888/$FILE/OGE%20Letter%20to%20DOJ%

20(posting).pdf (last visited May 20, 2019).

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Chairman Cummings that the President was prepared to consider making some documents available for review.11
Chairman Cummings wrote the White House Counsel again on February 15, 2019. See Cummings’ February 15th Letter. He opened by stating that, by his January 8th letter, “the Committee launched an investigation into the failure of President Donald Trump to report hundreds of thousands of dollars in payments and liabilities to his former attorney, Michael Cohen, to silence women alleging extramarital affairs during the 2016 presidential campaign.” Id. at 1. Chairman Cummings explained that “[t]he Committee’s interest in obtaining these documents is even more critical in light of new documents obtained by the Committee from the Office of Government Ethics (OGE) that describe false information provided by lawyers representing President Trump . . . ” Id. The letter went on to detail a timeline of recent events starting with statements made by the President’s lawyers to the Office of Government Ethics and to the public about a supposed purpose of the Cohen payments unrelated to the election; followed by the President’s disclosure of the Cohen payments on his 2017 Financial Disclosure form as a liability of less than $250,000; and then revelations by federal prosecutors that the Cohen payments in fact exceeded the $250,000 reported by the President. Id. at 2–6. In the end, Chairman Cummings cited Congress’s “plenary authority to legislate and conduct oversight regarding compliance with ethics laws and regulations” as the source of its authority to make the records demand, as well as its “broad authority to legislate and conduct oversight on issues involving campaign finance.” Id. at 7.
11 Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Pat Cipollone, White House Counsel at 1 (Feb. 15, 2019), https://tinyurl.com/Feb15CummingsCipolloneLetter [hereinafter Cummings’ February 15th Letter].
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C. Subpoena to Mazars USA LLP On February 27, 2019, Michael Cohen appeared for a public hearing before the House Oversight Committee.12 By this time, Cohen had pleaded guilty to a host of federal felony charges, including tax evasion, campaign finance violations, and making false statements to Congress.13 During his testimony, Cohen alleged that financial statements prepared by the President’s accountants falsely represented the President’s assets and liabilities. See Cohen Testimony at 13, 19. Specifically, Cohen stated that, in his experience, “Mr. Trump inflated his total assets when it served his purposes . . . and deflated his assets to reduce his real estate taxes.” Id. Cohen supplied the Oversight Committee with portions of the President’s Statements of Financial Condition from 2011, 2012, and 2013, some of which were signed by Mazars.14 Following Cohen’s testimony, Chairman Cummings wrote to Mazars on March 20, 2019. The letter first summarized aspects of Cohen’s testimony accusing the President of manipulating financial statements to suit his purposes; it then identified a half-dozen questions about assets and liabilities reflected in the President’s Statements of Financial Condition that Cohen had provided to the Oversight Committee. See Cummings’ March 20th Letter at 1–3. Chairman Cummings stated that these financial statements “raise questions about the President’s representations of his financial affairs on these forms and on other disclosures, particularly relating to the President’s debts.” Id. at 1. The letter concluded by asking Mazars to produce four categories of documents
12 Hearing with Michael Cohen, Former Attorney to President Donald Trump: Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. (2019), https://tinyurl.com/CohenHearing (last visited May 20, 2019) [hereinafter Cohen Testimony]. 13 See Mark Mazzetti, et al., Cohen Pleads Guilty and Details Trump’s Involvement in Moscow Tower Project, N.Y. TIMES, Nov. 29, 2018, https://www.nytimes.com/2018/11/29/nyregion/michael-cohen-trump-russia-mueller.html (last visited May 20, 2019). 14 See Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Victor Wahba, Chairman and Chief Exec. Officer, Mazars USA LLP (Mar. 20, 2019), https://tinyurl.com/Mar20CummingsLetter (last visited May 20, 2019) [hereinafter Cummings’ March 20th Letter]; see also Cohen Testimony at 13.
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with respect to not just the President, but also several affiliated organizations and entities, including the Trump Organization Inc., the Donald J. Trump Revocable Trust, the Trump Foundation, and the Trump Old Post Office LLC. See id. at 4. The records requested included statements of financial condition, audited financial statements, documents relied upon to prepare any financial statements, engagement agreements, and communications between Mazars and the President or employees of the Trump Organization. See id. The relevant time period identified for the requested records was “January 1, 2009, to the present.” Id. In his initial letter to Mazars, Chairman Cummings did not articulate any legislative purpose for the records requested.
A week later, on March 27, 2019, Mazars responded that it “cannot voluntarily turn over documents sought in the Request.”15 Mazars cited various federal and state regulations and professional codes of conduct that prevented it from doing so. See Mazars March 27th Letter at 1.
On April 12, 2019, Chairman Cummings distributed a memorandum to Members of the Oversight Committee (“Memorandum”), advising them of his intent to issue a subpoena to Mazars.16 Under a section titled “Need for Subpoena,” Chairman Cummings cited to Cohen’s testimony that the President had “altered the estimated value of his assets and liabilities on financial statements,” as well as to the records Cohen had provided to support these claims. Cummings’ April 12th Mem. at 1–2. He also referenced “[r]ecent news reports” raising “additional concerns regarding the President’s financial statements and representations.” Id. at 1. In the “Conclusion” section of the Memorandum, Chairman Cummings listed the purposes for seeking the Mazars-held records:
15 Letter from Jerry D. Bernstein, BlankRome LLP, Outside Counsel to Mazars USA LLP, to the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform (Mar. 27, 2019), https://tinyurl.com/Mar27MazarsLetter (last visited May 20, 2019) [hereinafter Mazars March 27th Letter]. 16 Memorandum from Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Members of the Committee on Oversight and Reform (April 12, 2019), https://www.politico.com/f/?id=0000016a-131f-da8eadfa-3b5f319d0001 (last visited May 20, 2019) [hereinafter Cummings’ April 12th Mem.].
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The Committee has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities. The Committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction, and to suggest otherwise is both inaccurate and contrary to the core mission of the Committee to serve as an independent check on the Executive Branch. Id. at 4. Chairman Cummings allowed 48 hours for Members to offer their views on issuing the subpoena. See id. The Committee’s new Ranking Member, Congressman Jim Jordan, responded, declaring the action “an unprecedented abuse of the Committee’s subpoena authority to target and expose the private financial information of the President of the United States.”17 Notwithstanding the Ranking Member’s objection, on April 15, 2019, the Oversight Committee issued the subpoena to Mazars that is the subject of this lawsuit. The subpoena sought the same four categories of records identified in the March 20th letter relating to the President and his affiliated organizations and entities. See Subpoena, ECF No. 9-2, Ex. A, at 3 [hereinafter Subpoena]; see also Cummings’ March 20th Letter at 4. The subpoena, however, differed in one respect—it narrowed the relevant time period by two years to “calendar years 2011 through 2018.”18 Subpoena at 3.
17 Letter from the Honorable Jim Jordan, Ranking Member, House Comm. on Oversight & Reform, to the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform at 1 (April 15, 2019), https://republicansoversight.house.gov/wp-content/uploads/2019/04/2019-04-15-JDJ-to-EEC-re-Mazars-Subpoena.pdf (last visited May 20, 2019). 18 At oral argument, Plaintiffs stated that paragraph 2 of the subpoena applies “without regard to time.” Hr’g Tr. at 69. That paragraph, however, is for all engagement agreements or contracts related to items “described in Item Number 1,” which is time-limited from 2011 to 2018. See Subpoena at 3.
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D. Procedural History 1. Plaintiffs Seek Injunctive Relief
On April 22, 2019, President Trump, along with his affiliated organizations and entities (collectively “Plaintiffs”),19 filed this lawsuit. See Compl., ECF No. 1 [hereinafter Compl.]. They originally named as defendants Chairman Cummings; Peter Kenny, the Chief Investigative Counsel of the Oversight Committee; and Mazars. Plaintiffs asked the court, among other things, to declare that the Oversight Committee’s subpoena to Mazars “is invalid and unenforceable” and to issue a “permanent injunction quashing Chairman Cummings’ subpoena.” Compl. at 13. With their Complaint, Plaintiffs filed an Application for a Temporary Restraining Order and Motion for Preliminary Injunction. See Pls.’ App. for a TRO, ECF No. 9; Pls.’ Mot. for Prelim. Inj., ECF No. 11; Stmt. of P&A in Support of Pls.’ App. for a TRO and Mot. for Prelim. Inj., ECF Nos. 9-1, 111 [hereinafter Pls.’ Stmt.]. The Application asked the court to enter an order “prohibiting Defendants from enforcing or complying with Chairman Cummings’ subpoena so that the Court can decide Plaintiffs’ motion for a preliminary injunction.” Pls.’ Stmt. at 14.
Following discussions with the Oversight Committee, Plaintiffs consented to the Committee’s intervention as a defendant in this matter and agreed to dismiss Chairman Cummings and Kenny as defendants. See Consent Mot. of the Oversight Committee to Intervene, ECF No. 12; Joint Stip., ECF No. 15. The parties settled on a briefing schedule on Plaintiffs’ motion for preliminary injunction, which the court entered. Minute Order, Apr. 23, 2019. The Oversight Committee also agreed to postpone the date for Mazars to produce records until seven days after
19 The complete list of affiliated organizations and entities includes: The Trump Organization, Inc.; Trump Organization LLC; The Trump Corporation; DJT Holdings LLC; The Donald J. Trump Revocable Trust; and the Trump Old Post Office LLC.
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the court ruled on Plaintiffs’ motion. See id. That agreement made it unnecessary for the court to enter a temporary restraining order.
2. Consolidation under Rule 65(a)(2) Under the entered schedule, the parties were to appear before the court for oral argument on May 14, 2019. Five days before the hearing and one day after the parties had completed briefing, the court entered an order announcing its intention to consolidate the hearing on the preliminary injunction with the “trial on the merits,” as is permitted under Federal Rule of Civil Procedure 65(a)(2). See Order, ECF No. 25 [hereinafter Order]. The court explained the reason for consolidation as follows:
The sole question before the court—Is the House Oversight Committee’s issuance of a subpoena to Mazars USA LLP for financial records of President Donald J. Trump and various associated entities a valid exercise of legislative power?—is fully briefed, and the court can discern no benefit from an additional round of legal arguments. Nor is there an obvious need to delay ruling on the merits to allow for development of the factual record. Id. The court made the decision to consolidate conscious of the need to expedite these types of cases. In Eastland v. U.S. Servicemen’s Fund, the Supreme Court stated that motions to enjoin a congressional subpoena “be given the most expeditious treatment by district courts because one branch of Government is being asked to halt the functions of a coordinate branch.” 421 U.S. 491, 511 n.17 (1975); see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress”). The court also was cognizant of the fact that the Constitution’s Speech or Debate Clause forecloses Plaintiffs from compelling discovery from the Oversight Committee, its Members, or staff. See Eastland, 421 U.S. at 503 (stating that “a private civil action, whether for an injunction or damages, creates a distraction and forces Members to
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divert their time, energy, and attention from their legislative tasks to defend the litigation”); see also Gravel v. United States, 408 U.S. 606, 616–22 (1972). Relatedly, the D.C. Circuit has recognized that evidence relevant to determining whether Congress has acted in its legislative capacity is likely to come largely, if not exclusively, from public sources. See Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968) (observing that relevant sources of evidence include “the resolution of the Congress authorizing the inquiry,” “the opening statement of the Chairman at the hearings,” and “statements of the members of the committee . . . or of the Staff Director”) (citations omitted). The court ordered the parties to submit any additional evidence to the court or lodge an objection to consolidation by May 13, 2019. Order at 2.
Plaintiffs protested the court’s consolidation order, but the Oversight Committee did not. See Pls.’ Objections to Rule 65(a)(2) Consolidation, ECF No. 29 [hereinafter Pls.’ Objections]; see also Oversight Committee’s Resp. to the Court’s May 9, 2019 Order, ECF No. 31. Plaintiffs asserted that, in briefing only a motion for preliminary injunction, they were constrained in their arguments on the merits. See Pls.’ Objections at 4 (“Nor have the parties had the opportunity to fully brief the important constitutional questions that this case presents.”). They also maintained that they needed more time to obtain additional evidence, specifically (1) a memorandum of understanding negotiated between Chairman Cummings and a Chair of a different House Committee, which they believed the Ranking Member of the Oversight Committee would voluntarily disclose to them, and (2) communications between Mazars and the Oversight Committee. Id. at 6–7. Plaintiffs did not assert that they could obtain discovery from the Oversight Committee. See generally id.
At the May 14th hearing, the court heard further argument from Plaintiffs on consolidation, and overruled their objection. The court found that no additional briefing would aid in its decision-
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making, as the parties had comprehensively presented the issues and cited all applicable precedent. See Hr’g Tr. at 34. Indeed, Plaintiffs could identify no new argument that they would make if given the chance to do so. Id. at 34–36. To allow for Plaintiffs’ asserted need to gather additional evidence, the court left the record open until May 18, 2019. Id. at 75. Plaintiffs already had submitted some additional evidence after the consolidation order, which consisted of news reports of public statements of various Members of Congress. See Supp. Decl. of William S. Consovoy, ECF No. 30 [hereinafter First Supp. Decl.]. Plaintiffs added two more letters from the Ranking Member before the record closed. See Second Supp. Decl. of William S. Consovoy, ECF No. 34.20
E. Cross-Motions for Summary Judgment The legal issues presented do not require the court to resolve any fact contests because the material facts are not in dispute.21 Accordingly, having ordered consolidation under Rule 65(a)(2), the court treats the parties’ briefing as cross-motions for summary judgment. See Mar. for Life v. Burwell, 128 F. Supp. 3d 116, 124 (D.D.C. 2015) (reviewing case consolidated under Rule 65(a)(2) as cross-motions for summary judgment); Indep. Bankers Ass’n of Am. v. Conover, 603 F. Supp. 948, 953 (D.D.C. 1985) (same).
20 Plaintiffs did not offer any evidence from Mazars; nor did they submit the memorandum of understanding that they claimed in their Opposition was critical evidence. The Oversight Committee, however, did submit that memorandum of understanding to the court in camera. The court has considered the contents of the agreement in rendering its judgment. 21 Although the Oversight Committee’s “motive” for issuing the subpoena to Mazars is a disputed fact, as discussed further below, it is not a “material” fact that would prevent deciding the case on cross-motions for summary judgment. See Watkins v. United States, 354 U.S. 178, 200 (1957). In addition, the Committee admitted “there is no legitimate dispute about the facts here. We’re not saying that Congressman Cummings didn’t say the things that he’s quoted as saying . . .” Hr’g Tr. at 61–62.
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III. LEGAL PRINCIPLES A. Congress’s Broad Investigative Authority Article I of the Constitution grants Congress all “legislative Powers.” U.S. Const. art. I,
§ 1. Although Article I does not say so expressly, the power to secure “needed information . . . has long been treated as an attribute of the power to legislate.” McGrain v. Daugherty, 273 U.S. 135, 161 (1927). As the Supreme Court observed in McGrain, the power to investigate is deeply rooted in the nation’s history: “It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures.” Id. “There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation.” Quinn v. United States, 349 U.S. 155, 160 (1955).
Related to Congress’s legislative function is its “informing function.” The Supreme Court has understood that function to permit “Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). “From the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.” Id. (citing James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 168–194 (1926)). The informing function finds its roots in the scholarship of President Woodrow Wilson, which the Court first cited in United States v. Rumely:
It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the
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country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. 345 U.S. 41, 43 (1953) (quoting WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS, 303). Thus, though not wholly distinct from its legislative function, the informing function is a critical responsibility uniquely granted to Congress under Article I. See Landis, 40 HARV. L. REV. at 205 n.227 (describing the informing function as “implied and inherent” within the legislative function). In furtherance of these duties, Congress’s power to investigate is “broad.” Watkins, 354 U.S. at 187. “It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Id. In short, “[t]he scope of the power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Barenblatt v. United States, 360 U.S. 109, 111 (1959). But Congress’s investigatory power is not unbounded. The Constitution’s very structure puts limits on it. For instance, the power to investigate may not “extend to an area in which Congress is forbidden to legislate.” Quinn, 349 U.S. at 161. Nor may Congress “trench upon Executive or judicial prerogatives.” McSurely v. McClellan, 521 F.2d 1024, 1038 (D.C. Cir. 1975). A prime example of such overreach is exercising the “powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn, 349 U.S. at 161. The Supreme Court has recognized other limits. Congress cannot “inquire into private affairs unrelated to a valid legislative purpose.” Id. Nor is there a “congressional power to expose for the sake of exposure.” Watkins, 354 U.S. at 200. “The public is, of course, entitled to be informed
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concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals.” Id.22
B. Determining Whether Congress Has Acted Legislatively When a court is asked to decide whether Congress has used its investigative power improperly, its analysis must be highly deferential to the legislative branch. A number of guideposts mark the way forward. To start, the court must proceed from the assumption “that the action of the legislative body was with a legitimate object, if it is capable of being so construed, and [the court] ha[s] no right to assume that the contrary was intended.” McGrain, 273 U.S. at 178 (citation omitted). It also “must presume that the committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties.” Exxon Corp., 589 F.2d at 589. So, when it appears that Congress is investigating on a subject-matter in aid of legislating, “the presumption should be indulged that this was the real object.” McGrain, 273 U.S. at 178. An important corollary to this presumption of regularity is that courts may not “test[] the motives of committee members” to negate an otherwise facially valid legislative purpose. Watkins, 354 U.S. at 200; see also Eastland, 421 U.S. at 508 (“Our cases make clear that in determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”) (citation omitted). “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.” Barenblatt, 360 U.S. at 132 (citation omitted). Thus, it is not the court’s role to decipher whether Congress’s true purpose in pursuing an investigation is to aid legislation or something more sinister
22 Other limitations on Congress’s investigative powers can be found in the Bill of Rights. See Quinn, 349 U.S. at 161. Plaintiffs have not asserted that disclosure of the records sought from Mazars would implicate any “specific individual guarantees of the Bill of Rights.” Id.; see generally Pls.’ Stmt.
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such as exacting political retribution. See McSurely, 521 F.2d at 1038. If there is some discernable legislative purpose, courts shall not impede Congress’s investigative actions. See Watkins, 354 U.S. at 200 (“Their 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.”).
Although Congress’s motives are off limits, courts can consider what Congress has said publicly to decide whether it has exceeded its authority. See Shelton, 404 F.2d at 1297. Relevant evidence includes the resolution authorizing the investigation, statements by Committee members, and questions posed during hearings. See id. At the same time, the mere absence of public statements identifying the investigation’s purpose or subject matter is not, by itself, conclusive proof of an invalid purpose. See McGrain, 273 U.S. at 176–78. Congress is not required to announce its intentions in advance. See id. at 178. Similarly, it does not matter if the investigation does not produce legislation. See 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. To be a valid legislative inquiry there need be no predictable end result.” Id.; see also Townsend v. United States, 95 F.2d 352, 355 (D.C. Cir. 1938) (Congress’s “power to conduct a hearing for legislative purposes is not to be measured by recommendations for legislation or their absence.”). The critical inquiry then is not legislative certainty, but legislative potential: If the subject matter of the investigation is “one on which legislation could be had,” Congress acts within its legislative function. McGrain, 273 U.S. at 177 (emphasis added); see also Eastland, 421 U.S. at 504 n.15 (“The subject of any inquiry always must be one ‘on which legislation could be had.’”) (quoting McGrain, 273 U.S. at 177).
Once a court finds that an investigation is one upon which legislation could be had, it must not entangle itself in judgments about the investigation’s scope or the evidence sought. Only an
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investigative demand that is “plainly incompetent or irrelevant to any lawful purpose of the [committee] in the discharge of its duties” will fail to pass muster. McPhaul v. United States, 364 U.S. 372, 381 (1960) (citation omitted) (cleaned up). Importantly, in making this assessment, it is not the judicial officer’s job to conduct a “line-by-line review of the Committee’s requests.” Bean LLC v. John Doe Bank, 291 F. Supp. 3d. 34, 44 (D.D.C. 2018). “There is no requirement that every piece of information gathered in such an investigation be justified before the judiciary.” McSurely, 521 F.2d at 1041.
And, finally, courts must take care not to be swayed by the political conflicts of the day. Its role is not to act as a political referee. As the Supreme Court cautioned in Tenney v. Brandhove:
In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses. The courts should not go beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province. 341 U.S. 367, 378 (1951). IV. ANALYSIS With these principles in mind, the court proceeds to consider whether the Oversight Committee’s subpoena to Mazars is “facially legislative in character,” McSurely, 521 F.2d at 1038, or whether it exceeds Congress’s power to investigate. To answer that question, the court first considers the legislative reasons offered by the Oversight Committee to justify the subpoena. It then addresses Plaintiffs’ contentions why those reasons are invalid. A. Legislative Purpose for Issuing the Subpoena to Mazars Had the Oversight Committee adopted a resolution that spells out the intended legislative purpose and scope of its investigation, the court would have begun its inquiry there. Indeed, the
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Supreme Court has considered congressional resolutions as a primary source from which to glean whether information “was sought . . . in aid of the legislative function.” McGrain, 273 U.S. at 176; see also Shelton, 404 F.2d at 1297 (observing that relevant sources of evidence to “ascertain whether [an inquiry] is within the broad investigative authority of Congress” include “the resolution . . . authorizing the inquiry”). However, the Committee never adopted one. While a clearly drafted resolution would have made this court’s task easier or might have preempted the challenge now brought altogether, it is not a constitutional prerequisite to start an investigation. Cf. McGrain, 273 U.S. at 178.
Without a resolution as a point of reference, the logical starting point for identifying the purpose of the Mazars subpoena is the memorandum to Members of the Oversight Committee written by Chairman Cummings on April 12, 2019. Chairman Cummings penned that Memorandum in anticipation of issuing the subpoena. It is therefore the best evidence of the Committee’s purpose. The Memorandum lists four areas of investigation: (1) “whether the President may have engaged in illegal conduct before and during his tenure in office,” (2) “whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “whether he is complying with the Emoluments Clauses of the Constitution,” and (4) “whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.” Cummings’ April 12th Mem. at 4. Each of these is a subject “on which legislation could be had.” McGrain, 273 U.S. at 177.
Taking the reasons in reverse order, the accuracy of the President’s financial reporting relates directly to the law that requires it: The Ethics in Government Act of 1978. See 5 U.S.C. App. 4 § 101 et seq. In his letter to the White House Counsel dated February 15, 2019, Chairman Cummings alluded to how documents relating to the accuracy of the President’s disclosures fell
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within the legislative purview of Congress: “Since the earliest days of our republic, Congress has investigated how existing laws are being implemented and whether changes to the laws are necessary. For decades, this has included laws relating to financial disclosures required of the President.” Cummings’ February 15th Letter at 9. As to the specific demand made on February 15th, which related to the payments by Michael Cohen and the President’s failure to publicly report them as a liability, Chairman Cummings explained that “[t]hese documents will help the Committee determine why the President failed to report these payments and whether reforms are necessary to address deficiencies with current laws, rules, and regulations.” Id. (emphasis added). This legislative rationale applies equally to the financial records requested by the Mazars subpoena. Congress reasonably might consider those documents in connection with deciding whether to legislate on federal ethics laws and regulations. For example, the discovery of additional disclosure violations by the President could influence whether Congress strengthens public reporting requirements or enhances penalties for non-compliance. Thus, there can be little doubt that Congress’s interest in the accuracy of the President’s financial disclosures falls within the legislative sphere.
Investigating whether the President is abiding by the Foreign Emoluments Clause is likewise a subject on which legislation, or similar congressional action, could be had. The Foreign Emoluments Clause prohibits the President from “accept[ing]” any “Emolument” from “any King, Prince, or foreign State” without the “Consent of the Congress.” U.S. Const. art. I, § 9, cl. 8. The Constitution thus expressly vests in Congress the unique authority to approve the President’s acceptance of “Emoluments,” however one defines that term. See generally Blumenthal v. Trump, No. 17-1154 (EGS), 2019 WL 1923398 (D.D.C. Apr. 30, 2019). Even under the President’s favored interpretation, the Clause, at a minimum, “was intended to combat corruption and foreign
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influence . . .” Id. at *8. Surely, incident to Congress’s authority to consent to the President’s receipt of Emoluments is the power to investigate the President’s compliance with the Clause. Without such power, Congress’s constitutional function to approve or disapprove Emoluments would be severely and unduly constrained. The Founders could not have intended that result. A congressional investigation to carry out an expressly delegated Article I function, in addition to any legislation that might be had relating to that function, is plainly valid.23
So, too, is an investigation to determine whether the President has any conflicts of interest. As already discussed, it lies within Congress’s province to legislate regarding the ethics of government officials. Indeed, exposing conflicts of interest is one of the core objectives of the Ethics in Government Act. As the D.C. Circuit has observed, “the Act shows Congress’[s] general belief that public disclosure of conflicts of interest is desirable despite its cost in loss of personal privacy.” Washington Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 265 (D.C. Cir. 1982). Obtaining records to shed light on whether the President has undisclosed conflicts of interests is therefore entirely consistent with potential legislation in an area where Congress already has acted and made policy judgments.
Finally, a congressional investigation into “illegal conduct before and during [the President’s] tenure in office,” Cummings’ April 12th Mem. at 4, fits comfortably within the broad scope of Congress’s investigative powers. At a minimum, such an investigation is justified based on Congress’s “informing function,” that is, its power “to inquire into and publicize corruption,”
23 To be clear, even if Congress’s authority to approve the President’s receipt of Emoluments is technically not a “legislative” act, the court doubts that the Supreme Court would read its precedent to foreclose Congress from investigating an Emoluments Clause violation based on a semantic distinction. The fact is, no court has ever been asked to address the extent of Congress’s power to police the Emoluments Clause. Therefore, it should come as no surprise that there is no case holding that Congress may exercise its power to investigate in relation to that Clause. But just as Congress’s authority to legislate is expressly rooted in Article I, so too is its power to consent to presidential receipt of Emoluments. If Congress’s power to investigate is incidental to its legislative function, it likewise must be incidental to carry out its Foreign Emoluments Clause function.
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Watkins, 354 U.S. at 200 n.33.24 It is simply not fathomable that a Constitution that grants
Congress the power to remove a President for reasons including criminal behavior would deny
Congress the power to investigate him for unlawful conduct—past or present—even without
formally opening an impeachment inquiry. On this score, history provides a useful guide.
Cf. Tobin v. United States, 306 F.2d 270, 275–76 (D.C. Cir. 1962) (relying on historical practice
to determine the scope of a congressional investigation). Twice in the last 50 years Congress has
investigated a sitting President for alleged law violations, before initiating impeachment
proceedings. It did so in 1973 by establishing the Senate Select Committee on Presidential
Campaign Activities, better known as the Watergate Committee, and then did so again in 1995 by
establishing the Special Committee to Investigate Whitewater Development Corporation and
Related Matters. See S. Res. 60 (93rd Cong., 1st Session) (Feb. 7, 1973) [hereinafter Watergate
Res.]; see also S. Res. 120 (104th Cong., 1st Session) (May 17, 1995). The former investigation
included within its scope potential corruption by President Nixon while in office, while the latter
concerned alleged illegal misconduct by President Clinton before his time in office. Congress
plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office. This court is not prepared to roll back the tide of history.25
24 Plaintiffs suggested at oral argument that Congress’s informing function was limited to rooting out corruption only in “agencies” of the Government, and the President is not an “agency” of the government. See Hr’g Tr. at 9, 75. Although footnote 33 in Watkins refers to the informing function in connection with “agencies of the Government,” Watkins, 354 U.S. 200 n.33, the original conception of that function as embraced by the Court in Rumely was not so limited, see Rumely, 345 U.S. 41. Rumely spoke more generally of shining a light on “every affair of government” and “the acts and the disposition of the administrative agents of the government,” without qualification. Id. at 43. Watkins’ reference to administrative agencies is therefore better understood as a case-specific statement—the investigation there involved the Attorney General—rather than a limiting principle. Plaintiffs’ artificial line-drawing is antithetical to the checks and balances inherent in the Constitution’s design. 25 Even if an investigation into a sitting President’s past or present illegal conduct lies beyond the Oversight Committee’s reach, its investigation here still would be legitimate because the Committee identified three other justifications with a valid legislative purpose. See McGrain, 273 U.S. at 176–77 (rejecting lower court’s opinion striking down a congressional investigation because the investigation “contemplat[ed] the taking of action other than legislative”).
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Before moving on to Plaintiffs’ arguments, the court notes that the Oversight Committee has identified several pieces of actual legislation that, it asserts, are related to its overall investigation of the President. See Oversight Committee’s Opp’n to Pls.’ Mot. for Prelim. Injunction, ECF No. 20, at 5–6. The House has passed H.R. 1, which requires, among other things, the President and Vice President to file new financial disclosure forms within 30 days of taking office, and to divest all financial interests that would pose a conflict of interest by “either converting those interests to cash or investments that satisfy ethics rules or placing those interests in a qualified blind trust or disclosing information about business interests.” Id. at 6 (citing H.R. 1, 116th Cong., Title VIII (2019)). Other bills cited by the Oversight Committee include H.R. 745, which would strengthen the Office of Government Ethics, and H.R. 706, which would prohibit the President and Vice President from conducting business directly with the Federal Government. See id. (citing H.R. 745, 116th Cong. (2019); H.R. 706, 116th Cong. (2019)). There is no mention of any of these bills in any written request from the Oversight Committee, let alone the April 12th Memorandum justifying the Mazars subpoena. That absence is not fatal, however. Again, the question for the court is whether the congressional investigation pertains to a subject matter on which legislation could be had, so Congress need not proactively identify any specific legislation to justify its activities. Here, the bills identified by the Oversight Committee demonstrate Congress’s intent to legislate, at the very least, in the areas of ethics and accountability for Executive Branch officials, including the President. These are subjects, therefore, on which legislation could be had.
B. Plaintiffs’ Contentions The court now turns to Plaintiffs’ contentions. Each of Plaintiffs’ arguments for why the Mazars subpoena exceeds Congress’s Article I investigative power fall into one of three general
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categories. First, by characterizing the Oversight Committee’s investigation as one delving “into the accuracy of a private citizen’s past financial statements,” Plaintiffs contend that the Oversight Committee is engaged in “a quintessential law enforcement task reserved to the executive and judicial branches.” Pls.’ Stmt. at 11. Plaintiffs similarly contend that an investigation into the accuracy of the President’s financial disclosures, his adherence to the Emoluments Clauses, and his present or past compliance with the law is “law enforcement” activity that encroaches on the prerogatives of the coordinate branches. Hrg. Tr. at 7, 13–18, 25. Second, Plaintiffs charge that the Oversight Committee’s investigation “has nothing to do with government oversight,” but is instead intended to expose for the mere sake of exposure “the conduct of a private citizen years before he was even a candidate for public office . . .” Pls.’ Stmt. at 11. Finally, Plaintiffs maintain that the Oversight Committee has exceeded its authority, insofar as it is doing nothing more than “conduct[ing] roving oversight of the President,” and the records sought from Mazars are not “pertinent” to any legitimate legislative purpose. Pls.’ Reply in Support of Pls.’ Mot. for Prelim. Injunction, ECF No. 24 [hereinafter Pls.’ Reply], at 11–12. The court addresses each of these arguments in turn.
1. Usurpation of Executive and Judicial Functions Plaintiffs first assert that each of the four justifications for the Mazars subpoena identified by Chairman Cummings in the April 12th Memorandum falls outside the bounds of legislative power, because each seeks to determine whether the President broke the law, a function reserved exclusively to the Executive and Judicial branches. See id. at 13–14. That argument, however, rests on a false premise. Just because a congressional investigation has the potential to reveal law violations does not mean such investigation exceeds the legislative function. The Supreme Court’s understanding of a “legislative” purpose is not so constrained.
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To be certain, the Supreme Court has said that the “power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn, 349 U.S. at 161; see also Watkins, 354 U.S. at 187 (“Nor is the Congress a law enforcement or trial agency.”). But that limitation is not so absolute as to foreclose Congress from investigating any law violation by a private citizen, let alone a sitting President, so long as Congress is operating with a legislative purpose. As the Court explained in Sinclair v. United States:
It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; 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. 279 U.S. 263, 295 (1929). Thus, the Court has made clear that the mere prospect that a congressional inquiry will expose law violations does not transform a permissible legislative investigation into a forbidden executive or judicial function. See McGrain, 273 U.S. at 179–80 (“Nor do we think it a valid objection to the investigation that it might possibly disclose crime or wrongdoing on [the Attorney’s General’s] part.”); see also Townsend, 95 F.2d at 355 (describing McGrain as holding that “the presumption should be indulged that the object of the inquiry was to aid the Senate in legislating . . . even though the investigation might possibly disclose crime or wrongdoing on the part of the then Attorney General, whose name was expressly referred to in the resolution”). Moreover, appellate courts have demanded exacting proof before declaring that Congress has impermissibly intruded into exclusive executive or judicial territories. According to the Supreme Court, “[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
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Judiciary or the Executive.” Tenney, 341 U.S. at 378 (emphasis added). Similarly, the D.C. Circuit has said that Congress avoids trenching upon executive or judicial prerogatives “so long as [the investigative activity] remains facially legislative in character.” McSurely, 521 F.2d at 1038. Therefore, a congressional investigation that seeks to uncover wrongdoing does not, without more, exceed the scope of Congress’s authority.
In this case, there is nothing “obvious” about the Oversight Committee’s activities to support the conclusion that the subpoena to Mazars is a usurpation of an exclusively executive or judicial function. Nothing “give[s ] warrant for thinking the [Oversight Committee is] attempting or intending to try [the President] at its bar or before its committee for any crime or wrongdoing.” McGrain, 273 U.S. at 179. Nor is there evidence before the court that the Oversight Committee initiated its investigative activities at the behest of federal or state law enforcement officials, or is coordinating its actions with such officials. If anything, the evidence is to the contrary. The Executive Branch is clearly not coordinating with Congress, as it continues to resist calls to disclose records relating to the President’s actions in areas arguably well within Congress’s investigative powers.26 The Committee’s stated purposes, therefore, do not usurp judicial or executive functions.
To support their position, Plaintiffs point out that (1) the Mazars subpoena arose out of the testimony of Michael Cohen—“an admitted perjurer,” Pls.’ Stmt. at 4; (2) the records sought relate primarily to the President’s personal and financial interests years before he became a candidate, id. at 11; and (3) Chairman Cummings admitted that the Mazars subpoena was intended to
26 See, e.g., Carol D. Leonnig, et al., No ‘Do-Over’ on Mueller Probe, White House Lawyer Tells House Panel, Saying Demands for Records, Staff Testimony Will be Refused, WASH. POST, May 15, 2019, https://www.washingtonpost.com/politics/no-do-over-on-mueller-probe-white-house-lawyer-tells-house-panelsaying-demands-for-records-staff-testimony-will-be-refused/2019/05/15/1ad19728-7715-11e9-b3f55673edf2d127 story html?utm term=.b67bc595c86a (last visited May 20, 2019).
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“investigate whether the President may have engaged in illegal conduct before and during his tenure in office,” Cummings’ April 12th Mem. at 4. In addition, Plaintiffs cite to statements made by Chairman Cummings before he issued the Mazars subpoena. For instance, in his March 20th letter to Mazars, Chairman Cummings focused solely on Michael Cohen’s allegations that President Trump misrepresented his assets and liabilities and made no mention of a legislative purpose for obtaining the records. See Cummings’ March 20th Letter; see also First Supp. Decl. at 5–9. Additionally, Plaintiffs offer a November 2018 Vox article that quotes Chairman Cummings as saying, “[w]e’ve got to address this issue of exposing President Trump and what he has done, and we’ve got to face the truth . . . The [P]resident is a guy who calls truth lies and lies truth. But at some point, he’s also creating policy, and that’s affecting people’s day-to-day life.” First Supp. Decl. at 42. Plaintiffs also provide a Politico article in which Chairman Cummings is quoted as saying, “[o]ver the last two years President Trump set the tone from the top in his administration that behaving ethically and complying with the law is optional . . . We’re better than that.” Id. at 54. None of these facts, individually or taken together, make for an “obvious” “usurpation of functions exclusively vested in the Judiciary or the Executive.” Tenney, 341 U.S. at 378.
History has shown that congressionally-exposed criminal conduct by the President or a high-ranking Executive Branch official can lead to legislation. The Senate Watergate Committee provides an apt example. That Committee’s express mandate was to investigate “the extent, if any, to which illegal, improper, or unethical activities were engaged in by any persons, acting either individually or in combination with others, in the presidential election of 1972, or in any related campaign or canvass conducted by or [o]n behalf of any person seeking nomination or election as the candidate . . . for the office of President . . .” Watergate Res. at 1–2. As a
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consequence of the Committee’s work, Congress passed numerous pieces of legislation—among them, the Ethics in Government Act, the Congressional Budget and Impoundment Control Act of 1974, the War Powers Resolution, and the Independent Counsel Statute—with objectives to “open up the operation of the presidency to greater public oversight, subject[] the presidency to legal checks by other branches or institutions of government and, more generally, impose[] rule of law principles to more and more types of presidential decision making.” Michael A. Fitts, The Legalization of the Presidency: A Twenty-Five Year Watergate Retrospective, 43 ST. LOUIS UNIV. LAW J. 725, 726 (1999). The Teapot Dome Scandal provides another illustration. That congressional investigation concerned the award of a no-bid contract to lease federal oil reserves in Wyoming. Congress’s investigation revealed that the Secretary of Interior had accepted bribes from the oil companies that were awarded the leases. This discovery motivated Congress to enact several good-government reforms, including the Revenue Act of 1924 and the Federal Corrupt Practices Act of 1925. See James Sample, The Last Rites of Public Campaign Financing?, 92 NEB. L. REV. 349, 363 (2013). See also Lawrence A. Zelenak & Marjorie E. Kornhauser, Shaping Public Opinion and the Law: How a “Common Man” Campaign Ended a Rich Man’s Law, 73 LAW & CONTEMP. PROBS. 123, 126 (2010). This court is in no position to say that an equally ambitious legislative agenda might not arise out of the current era of congressional investigations of the presidency.
2. Investigation of Private Affairs Plaintiffs next accuse the Oversight Committee of issuing the subpoena to Mazars simply to investigate the private affairs of a citizen. See Pls.’ Stmt. at 9, 11. This argument fares no better than Plaintiffs’ first.
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More than a century ago, in Kilbourn v. Thompson, the Supreme Court stated that Congress does not possess “the general power of making inquiry into the private affairs of the citizen.” 103 U.S. 168, 190 (1880). In the ensuing decades, the Supreme Court repeatedly has affirmed that constraint on Congress’s investigative powers. See, e.g., McGrain, 273 U.S. at 173–74; Quinn, 349 U.S. at 161; Eastland, 421 U.S. at 504 n.15. But Kilbourn is the high-water mark for that limiting principle. In the nearly 140 years since Kilbourn, neither the Supreme Court nor any circuit court has found a congressional investigation unconstitutional because it invades the “private affairs of the citizen.” Indeed, years later, in the context of warning courts to be wary of declaring a congressional inquiry unconstitutional, the Supreme Court acknowledged Kilbourn’s shortcomings:
Experience admonishes us to tread warily in this domain. The loose language of Kilbourn v. Thompson, 103 U.S. 168, the weighty criticism to which it has been subjected, see, e.g., Fairman, Mr. Justice Miller and the Supreme Court, 332–334; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, the inroads that have been made upon that case by later cases, McGrain v. Daugherty, 273 U.S. 135, 170–171, and Sinclair v. United States, 279 U.S. 263, strongly counsel abstention from adjudication unless no choice is left. Rumely, 345 U.S. at 46 (alternations added). Accordingly, although the notion from Kilbourn that Congress does not have the general power to investigate into personal affairs remains alive today, the case is largely impotent as a guiding constitutional principle. See Landis, 40 HARV. L. REV. at 220 (“But no standard for judgment can be developed from Kilbourn v. Thompson. Its result contradicts an unbroken Congressional practice continuing even after the decision, with the increasing realization that committees of inquiry are necessary in order to make government effectively responsible to the electorate.”).
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How then to measure whether Congress has ventured into impermissible territory of investigating the personal affairs of a private citizen? The Supreme Court has provided some guidance. In Quinn, the Court said that Congress cannot use its investigative power “to inquire into private affairs unrelated to a valid legislative purpose.” 349 U.S. at 161 (emphasis added). Similarly, in Watkins, the Court stated that: “The public is, of course, entitled to be informed concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals.” 354 U.S. at 200 (emphasis added). Thus, the question the court must ask is whether the Oversight Committee’s investigation into the President’s personal affairs is fully divorced from any legislative purpose.
Indulging in the presumption that when Congress acts it does so for a proper reason, the court cannot say that the records sought from Mazars are “unrelated to a valid legislative purpose” or that the “predominant result can only be an invasion of” the President’s private affairs. As discussed above, legislation could stem from the Oversight Committee’s investigation of the President’s personal and corporate finances and the possible conflicts of interest under which he is operating. Thus, the potential presence of some intent to “ridicule, harass, or punish” the President cannot overcome this facially valid legislative purpose. McSurely, 521 F.2d at 1038.
In their Complaint and in their supplemental evidentiary submissions, Plaintiffs reference various statements from Democratic Members of Congress and congressional aides to the effect that Democrats are intending to use their subpoena power to exact political retribution. See Compl. ¶¶ 27–30; see also First Supp. Decl. at 35–79. For instance, one Congressman is quoted as saying, “We’re going to have to build an air traffic control tower to keep track of all the subpoenas flying from here to the White House.” Compl. ¶ 29. Another unnamed Democratic official said that
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House Democrats were preparing a “subpoena cannon” to fire at the President. Id. Plaintiffs urge that these and similar statements reveal that the Democrats’ true motive is to embarrass and harass the President, which cannot be cured by the Committee’s “retroactive rationalizations” in the April 12th Memorandum. Hr’g Tr. at 8.
Even if the court were to take these statements at face value—at best, a dubious evidentiary proposition given that these individuals do not control the actions of the Oversight Committee— they make no material difference. The case law makes clear that “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. In Watkins, the petitioner “marshalled an impressive array of evidence that some Congressmen have believed that” their duty “was to bring down upon himself and others the violence of public reaction because of their past beliefs, expressions and associations.” Id. at 199. This evidence did not, however, carry the day with the Supreme Court because Congress also had a legitimate legislative purpose for its investigation. Id. at 200. Likewise, in McGrain, the Court rejected a lower court’s decision echoing the arguments Plaintiffs advance here: “The extreme personal cast of the original resolutions; the spirit of hostility towards the then Attorney General which they breathe; that it was not avowed that legislative action was had in view until after the action of the Senate had been challenged; and that the avowal then was coupled with an avowal that other action was had in view—are calculated to create the impression that the idea of legislative action being in contemplation was an afterthought.” McGrain, 273 U.S. at 176. The Court held that the lower court was “wrong,” because “the subject [of the investigation] was one on which legislation could be had.” Id. at 177.
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In short, as long as there is a facially valid legislative purpose for the investigation, Congress acts within its constitutional authority. That is the case here.27
3. Pertinency of the Records Request Plaintiffs’ third and final challenge rests on the “pertinency” of the records requested from Mazars. See Pls.’ Reply at 12–14. This argument takes multiple forms, none of which are persuasive. To begin, according to Plaintiffs, for the Mazars subpoena to be valid the records sought must be “‘reasonably relevant’ to [the subpoena’s] legitimate legislative purpose,” and the records demanded fail that test. Id. at 13 (citing McPhaul, 364 U.S. at 381–82). This argument suffers from two problems. The first is that Plaintiffs conflate the concept of “pertinency” with the notion of “relevancy” as used in civil proceedings. “Pertinency” does not require the court to ask, as it would in a civil discovery dispute, whether the documents requested are likely to yield useful evidence. Instead, pertinency “is a jurisdictional concept . . . drawn from the nature of a congressional committee’s source of authority.” Watkins, 354 U.S. at 206. The concept appears most often in the context of a criminal conviction for contempt of Congress, in which a person has refused to comply with a subpoena or answer questions posed at a hearing. Pertinency, in this setting, is an element of criminal contempt. See 2 U.S.C. § 192 (making it a misdemeanor for a person summoned as a witness before Congress either to not appear or, if “having appeared, [to] refuse[] to answer any question pertinent to the question under inquiry . . .”) (emphasis added). The pertinency inquiry therefore asks whether the question posed to a witness is one that fell within
27 For this same reason, the forceful dissenting statements of the Ranking Member of the Oversight Committee, Congressman Jim Jordan, do not change the court’s calculus. The Ranking Member views the Committee’s investigation as without legislative purpose, and its sole design to harass and embarrass the President. See Second Decl. of William S. Consovoy, ECF No. 34; Ex. B, Letter from the Honorable Jim Jordan, Ranking Member, House Comm. on Oversight & Reform, to the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform (May 15, 2019). But, again, so long as lawmaking could follow from the Committee’s investigation, any attendant political purpose does not make the inquiry unconstitutional.
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the scope of the Committee’s investigative authority, which typically is defined by the resolution authorizing the investigation. See Watkins, 354 U.S. at 207–10; Sinclair, 279 U.S. at 292 (stating that, under the contempt statute, “a witness rightfully may refuse to answer where the bounds of the power are exceeded or where the questions asked are not pertinent to the matter under inquiry”). This is not a contempt case and therefore the pertinency inquiry, properly understood, has no role here.
But even if the court were to treat pertinency as akin to a relevance determination, that test is satisfied here. The standard adopted by the Supreme Court is a forgiving one. The subpoenaed records need only be “not plainly incompetent or irrelevant to any lawful purpose [of the Committee] in the discharge of its duties.” McPhaul, 364 U.S. at 381 (cleaned up). Here, the Oversight Committee has shown that it is not engaged in a pure fishing expedition for the President’s financial records. It is undisputed that the President did not initially identify as liabilities on his public disclosure forms the payments that Michael Cohen made to alleged mistresses during the presidential campaign.28 Furthermore, Michael Cohen has pleaded guilty to campaign finance violations arising from those payments.29 These events, when combined with Cohen’s testimony and the financial statements he supplied, make it reasonable for the Oversight Committee to believe that the records sought from Mazars might reveal other financial transgressions or improprieties. As already discussed, it is not unreasonable to think that the Mazars records might assist Congress in determining whether ethics statutes or regulations need updating to strengthen Executive Branch accountability, promote transparency, and protect against Executive Branch officials operating under conflicts of interest. Additionally, the Mazars records
28 Letter from David J. Apol, supra n.10. 29 See Mark Mazzetti, et al., Cohen Pleads Guilty and Details Trump’s Involvement in Moscow Tower Project, N.Y. TIMES, Nov. 29, 2018, https://www.nytimes.com/2018/11/29/nyregion/michael-cohen-trump-russia-mueller.html (last visited May 20, 2019).
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could provide the Oversight Committee with clues about the President’s foreign interests or sources of foreign income, if any, which would assist in determining Congress’s obligations under the Foreign Emoluments Clause. This concern is not a new one. In other letters seeking records, one sent to the Trump Organization and the other to the GSA, Chairman Cummings expressly stated that the records sought would be useful in assessing the President’s compliance with the Foreign Emoluments Clause. See n. 7 & 8, supra. The records from Mazars likewise could advance this legislative purpose. Pertinency, to the extent it may apply, is thus satisfied.
Two more arguments remain. First, Plaintiffs insist that the Oversight Committee cannot be seeking pertinent material because the legislative actions contemplated “extend to an area in which Congress is forbidden to legislate,” Quinn, 349 U.S. at 161. See Pls.’ Reply at 15–16. For example, Plaintiffs argue that H.R. 1 is unconstitutional insofar as it adds qualifications for the presidency beyond those contained in Article II of the Constitution. See id. at 16. More broadly, Plaintiffs maintain that any regulation of the “President’s finances or conflicts of interest” would be unconstitutional for the same reason. Id.
Plaintiffs’ contention flies in the face of decades of legislation covering the President. For example, the Ethics in Government Act requires the President to report the source, type, and amount of certain income and assets to the Office of Government Ethics. See 5 U.S.C. App. 4 §§ 101(a), (f); id. §§ 102(a), (b); id. § 103(b). The Stop Trading on Congressional Knowledge Act of 2012 provides that no “executive branch employee,” including the President, may use “nonpublic information derived from such person’s position” “as a means for making a private profit,” and further states that “executive branch employees,” including the President, “owe[] a duty arising from a relationship of trust and confidence to the United States Government and the citizens of the United States with respect to material, nonpublic information derived from [their]
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position.” Pub. Law No. 112-105 § 9. And, the Presidential Records Act “directs the President to ‘take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records.’” Armstrong v. Bush, 924 F.2d 282, 285 (D.C. Cir. 1991) (citing 44 U.S.C. § 2203). Plaintiffs’ argument, if accepted, would wipe out some, and perhaps all, of these statutes.
But there is an even more fundamental problem with Plaintiffs’ position. It is not the court’s role in this context to evaluate the constitutionality of proposed or contemplated legislation. Doing so would go beyond its limited powers. The Supreme Court said as much in Rumely: “Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to tread warily in this domain.” 345 U.S. at 46. Consequently, courts must avoid declaring an investigation by Congress unconstitutional, unless “no choice is left.” See id. In this case, not only is there no need to confront difficult constitutional questions, it would be improper to do so. Federal courts do not “render advisory opinions. For adjudication of constitutional issues ‘concrete legal issues, presented in actual cases, not abstractions’ are requisite.” United Pub. Workers of Am. (C.I.O.), et al., v. Mitchell, et al., 330 U.S. 75, 89 (1947) (citations omitted). The court here faces only abstract constitutional questions about prospective legislation that is not yet law. The court cannot declare a congressional investigation unconstitutional in such ill-defined circumstances.30
30 The D.C. Circuit’s decision in Tobin does not compel a different result. 306 F.2d 270 (D.C. Cir. 1962). If anything, Tobin advises courts to sidestep important constitutional issues unless squarely presented and unavoidable. In Tobin, the setting was review of a contempt conviction, which the Circuit found “is not the most practical method of inducing courts to answer broad questions broadly.” 306 F.2d at 274. This case is even less amenable to resolving an important
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Finally, Plaintiffs suggest that the court has the authority to “narrow overbroad [congressional] subpoenas,” and should consider doing so here. Pls.’ Reply at 13. But the federal courts enjoy no such power. “A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.” Townsend, 95 F.2d at 361 (citation omitted). “There is no requirement that every piece of information gathered in such an investigation be justified before the judiciary.” McSurely, 521 F.2d at 1041. The court therefore cannot “engage in a line-by-line review” of the Mazars subpoena and narrow its demands. Bean LLC, 291 F. Supp. 3d at 44; see also Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17, 20 (D.D.C. 1994) (“This [c]ourt . . . has no authority to restrict the scope of the Ethics Committee’s investigation.”). V. REQUEST FOR STAY PENDING APPEAL
At the May 14th oral argument, Plaintiffs asked the court to stay the return date of the subpoena beyond the seven days already agreed upon by the parties, pending final appellate review by the D.C. Circuit. See Hr’g Tr. at 77–78. The court declines to do so.
Federal Rule of Civil Procedure 62(c) authorizes a district court to issue an injunction pending appeal. Fed. R. Civ. P. 62(c). To obtain a stay pending appeal, the moving party “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); accord Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985) (per curiam) (citing Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843
constitutional issue than Tobin. There is no conviction or piece of legislation before the court to evaluate. Assessing the constitutionality of a not-yet-enacted statute would be the equivalent of answering a hypothetical question on a law school exam. This court cannot engage in such an exercise.
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(D.C. Cir. 1977)). The court balances these factors on a “sliding scale,” such that “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011); see also Cigar Ass’n of Am. v. U.S. Food & Drug Admin., 317 F. Supp. 3d 555, 560 (D.D.C. 2018).
As to the first factor, Plaintiffs have not shown that their challenge to the Mazars subpoena presents “serious legal questions going to the merits, so serious, substantial, difficult as to make them a fair ground of litigation and thus for more deliberative investigation.” Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986) (quoting Holiday Tours, 559 F.2d at 844). None of the three grounds upon which Plaintiffs challenge the subpoena rests on “potentially persuasive authority.” John Doe Co. v. Consumer Financial Protection Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017). Indeed, Plaintiffs have cited no case since Kilbourn from 1880 in which the Supreme Court or the D.C. Circuit has interfered with a congressional subpoena—because it either intrudes on the law enforcement prerogatives of the Executive or Judicial branches, seeks personal information unrelated to a legislative purpose, or demands records that lack “pertinency.” This case does not merit becoming the first in nearly 140 years.31
As for irreparable harm, this court has recognized that “the disclosure of confidential information is, by its very nature, irreparable ‘because such information, once disclosed, loses its confidential nature.’” Robert Half Int’l Inc. v. Billingham, 315 F. Supp. 3d 419, 433 (D.D.C. 2018) (citations omitted). That concern is somewhat mitigated here, however, because of the recipient of the records. Unlike Robert Half Int’l, where the challenged disclosure was to a market competitor, the disclosure here is made to Congress, and the D.C. Circuit has held that “courts
31 This case is unlike Eastland in which the D.C. Circuit by a 2-1 margin granted a stay to enforce subpoenas issued by Congress. See United States Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1256–57 (D.C. Cir. 1974), rev’d on other grounds, Eastland, 421 U.S. at 491. The court granted the stay because the case presented “serious constitutional questions . . .” Id. at 1256. No such “serious constitutional questions” are presented here.
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must presume that the committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties.” Exxon, 589 F.2d at 589 (citation omitted). That said, the court is not naïve to reality—a reality confirmed by the fact that the Oversight Committee has said that the decision whether to make the records public lies within its discretion. See Hr’g Tr. at 59. Thus, there is a chance that some records obtained from Mazars will become public soon after they are produced. The second factor of irreparable harm therefore favors a stay.
The final two factors—the balance of equities and the public interest—merge when, as here, “the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). These factors tip the balance in favor of denying a stay. In Exxon, the plaintiff had challenged Congress’s right to obtain records from the Federal Trade Commission that contained its trade secrets. 589 F.2d at 586–87. The district court denied the plaintiff’s request for injunctive relief. In affirming that decision on appeal, the D.C. Circuit held that the public interest favored Congress having access to the records. The court stated that the plaintiff’s burden to obtain injunctive relief was “considerably heightened by the clear public interest in maximizing the effectiveness of the investigatory powers of Congress . . . It would, then, require an extremely strong showing by the appellants to succeed in obtaining an injunction in light of the compelling public interest in denying such relief.” Id. at 594 (emphasis added). The court concluded: “To grant the injunction appellants request, this court would be required to interfere with the operation of Congress, and also to depart from traditional doctrine concerning the availability of equitable relief.” Id. The same would be true in this case.32
32 The court acknowledges that this case differs from Exxon in one respect. Unlike Exxon, this case does involve records whose public disclosure might give rise to “private injury.” 589 F.2d at 594. It is unclear, however, what proportion of the records at issue in this case are truly “personal,” as opposed to corporate records. The fact of some uncertain amount of private injury does not change the court’s calculus.
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The court is well aware that this case involves records concerning the private and business affairs of the President of the United States. But on the question of whether to grant a stay pending appeal, the President is subject to the same legal standard as any other litigant that does not prevail. Plaintiffs have not raised a “serious legal question[] going to the merits.” Population Inst., 797 F.2d at 1078. And, the balance of equities and the public interest weigh heavily in favor of denying relief. The risk of irreparable harm does not outweigh these other factors. The court, therefore, will not stay the return date of the subpoena beyond the seven days agreed upon by the parties. VI. CONCLUSION
For the foregoing reasons, the court will enter judgment in favor of the House Oversight Committee and against Plaintiffs. The court denies Plaintiffs’ request for a stay pending appeal. A separate final order accompanies this Memorandum Opinion.

Dated: May 20, 2019

Amit P. Mehta United States District Court Judge

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 (Slip Opinion)

OCTOBER TERM, 2019

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
TRUMP ET AL. v. MAZARS USA, LLP, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19–715. Argued May 12, 2020—Decided July 9, 2020*
In April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. The House Committee on Financial Services issued a subpoena to Deutsche Bank seeking any document related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank. It issued a second subpoena to Capital One for similar information. The Permanent Select Committee on Intelligence issued a subpoena to Deutsche Bank that mirrored the subpoena issued by the Financial Services Committee. And the House Committee on Oversight and Reform issued a subpoena to the President’s personal accounting firm, Mazars USA, LLP, demanding information related to the President and several affiliated businesses. Although each of the committees sought overlapping sets of financial documents, each supplied different justifications for the requests, explaining that the information would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. Petitioners—the President in his personal capacity, along with his children and affiliated businesses—contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia (Mazars, No. 19–715) and the subpoenas issued by the Financial Services and Intelligence Committees in the Southern District of New York (Deutsche Bank, No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose
—————— * Together with 19–760, Trump et al. v. Deutsche Bank AG et al., on
certiorari to the United States Court of Appeals for the Second Circuit.

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and violated the separation of powers. The President did not, however, argue that any of the requested records were protected by executive privilege.
In Mazars, the District Court granted judgment for the House and the D. C. Circuit affirmed, finding that the subpoena issued by the Oversight Committee served a valid legislative purpose because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates. In Deutsche Bank, the District Court denied a preliminary injunction and the Second Circuit affirmed in substantial part, holding that the Intelligence Committee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence in the U. S. political process, which could inform legislation to strengthen national security and combat foreign meddling. The court also concluded that the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One were adequately related to potential legislation on money laundering, terrorist financing, and the global movement of illicit funds through the real estate market.
Held: The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. Pp. 7–20. (a) Historically, disputes over congressional demands for presidential documents have been resolved by the political branches through negotiation and compromise without involving this Court. The Court recognizes that this dispute is the first of its kind to reach the Court; that such disputes can raise important issues concerning relations between the branches; that similar disputes recur on a regular basis, including in the context of deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve these disputes among themselves without Supreme Court guidance. Such longstanding practice “ ‘is a consideration of great weight’ ” in cases concerning “the allocation of power between [the] two elected branches of Government,” and it imposes on the Court a duty of care to ensure that it does not needlessly disturb “the compromises and working arrangements” reached by those branches. NLRB v. Noel Canning, 573 U. S. 513, 524–526 (quoting The Pocket Veto Case, 279 U. S. 655, 689). Pp. 7–11. (b) Each House of Congress has the power “to secure needed information” in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161. This power is “indispensable” because, without information, Congress would be unable to legislate wisely or effectively. Watkins v. United States, 354 U. S. 178, 215. Because this power is “justified solely as an adjunct to the legislative process,” it is subject to several limitations. Id., at 197. Most importantly, a congressional subpoena

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is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Id., at 187. The subpoena must serve a “valid legislative purpose.” Quinn v. United States, 349 U. S. 155, 161. Furthermore, Congress may not issue a subpoena for the purpose of “law enforcement,” because that power is assigned to the Executive and the Judiciary. Ibid. Finally, recipients of congressional subpoenas retain their constitutional rights and various privileges throughout the course of an investigation. Pp. 11–12.
(c) The President contends, as does the Solicitor General on behalf of the United States, that congressional subpoenas for the President’s information should be evaluated under the standards set forth in United States v. Nixon, 418 U. S. 683, and Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725, which would require the House to show that the requested information satisfies a “demonstrated, specific need,” 418 U. S., at 713, and is “demonstrably critical” to a legislative purpose, 498 F. 2d, at 731. Nixon and Senate Select Committee, however, involved subpoenas for communications between the President and his close advisers, over which the President asserted executive privilege. Because executive privilege safeguards the public interest in candid, confidential deliberations within the Executive Branch, information subject to the privilege deserves “the greatest protection consistent with the fair administration of justice.” 418 U. S., at 715. That protection should not be transplanted root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solicitor General— if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities, giving short shrift to its important interests in conducting inquiries to obtain information needed to legislate effectively. Pp. 12–14.
(d) The approach proposed by the House, which relies on precedents that did not involve the President’s papers, fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. The House’s approach would leave essentially no limits on the congressional power to subpoena the President’s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense. These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved. The interbranch conflict does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity.

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Nor are separation of powers concerns less palpable because the subpoenas were issued to third parties. Pp. 14–18.
(e) Neither side identifies an approach that adequately accounts for these weighty separation of powers concerns. A balanced approach is necessary, one that takes a “considerable impression” from “the practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401, and “resist[s]” the “pressure inherent within each of the separate Branches to exceed the outer limits of its power,” INS v. Chadha, 462 U. S. 919, 951. In assessing whether a subpoena directed at the President’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” Watkins, 354 U. S., at 187, courts must take adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President.
Several special considerations inform this analysis. First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “ ‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney, 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial, the better. That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. Fourth, courts should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. Pp. 18–20.
No. 19–715, 940 F. 3d 710; No. 19–760, 943 F. 3d 627, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.

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THOMAS, J., and ALITO, J., filed dissenting opinions.

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Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 19–715 and 19–760
_________________

DONALD J. TRUMP, ET AL., PETITIONERS

19–715

v.

MAZARS USA, LLP, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

DONALD J. TRUMP, ET AL., PETITIONERS

19–760

v.

DEUTSCHE BANK AG, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[July 9, 2020]

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
Over the course of five days in April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. We have held that the House has authority under the Constitution to issue subpoenas to assist it in carrying out its legislative responsibilities. The House asserts that the financial information sought here—encompassing a decade’s worth of transactions by the President and his family—will help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S.

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elections. The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority. The question presented is whether the subpoenas exceed the authority of the House under the Constitution.
We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding, United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and earlier today we extended that ruling to state criminal proceedings, Trump v. Vance, ante, p. ___. Nearly fifty years ago, we held that a federal prosecutor could obtain information from a President despite assertions of executive privilege, United States v. Nixon, 418 U. S. 683 (1974), and more recently we ruled that a private litigant could subject a President to a damages suit and appropriate discovery obligations in federal court, Clinton v. Jones, 520 U. S. 681 (1997).
This case is different. Here the President’s information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees of Congress that have set forth broad legislative objectives. Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring). That distinctive aspect necessarily informs our analysis of the question before us.
I A
Each of the three committees sought overlapping sets of

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financial documents, but each supplied different justifications for the requests.
The House Committee on Financial Services issued two subpoenas, both on April 11, 2019. App. 128, 154, 226. The first, issued to Deutsche Bank, seeks the financial information of the President, his children, their immediate family members, and several affiliated business entities. Specifically, the subpoena seeks any document related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank. The second, issued to Capital One, demands similar financial information with respect to more than a dozen business entities associated with the President. The Deutsche Bank subpoena requests materials from “2010 through the present,” and the Capital One subpoena covers “2016 through the present,” but both subpoenas impose no time limitations for certain documents, such as those connected to account openings and due diligence. Id., at 128, 155.
According to the House, the Financial Services Committee issued these subpoenas pursuant to House Resolution 206, which called for “efforts to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system.” H. Res. 206, 116th Cong., 1st Sess., 5 (Mar. 13, 2019). Such loopholes, the resolution explained, had allowed “illicit money, including from Russian oligarchs,” to flow into the United States through “anonymous shell companies” using investments such as “luxury high-end real estate.” Id., at 3. The House also invokes the oversight plan of the Financial Services Committee, which stated that the Committee intends to review banking regulation and “examine the implementation, effectiveness, and enforcement” of laws designed to prevent money laundering and the financing of terrorism.

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H. R. Rep. No. 116–40, p. 84 (2019). The plan further provided that the Committee would “consider proposals to prevent the abuse of the financial system” and “address any vulnerabilities identified” in the real estate market. Id., at 85.
On the same day as the Financial Services Committee, the Permanent Select Committee on Intelligence issued an identical subpoena to Deutsche Bank—albeit for different reasons. According to the House, the Intelligence Committee subpoenaed Deutsche Bank as part of an investigation into foreign efforts to undermine the U. S. political process. Committee Chairman Adam Schiff had described that investigation in a previous statement, explaining that the Committee was examining alleged attempts by Russia to influence the 2016 election; potential links between Russia and the President’s campaign; and whether the President and his associates had been compromised by foreign actors or interests. Press Release, House Permanent Select Committee on Intelligence, Chairman Schiff Statement on House Intelligence Committee Investigation (Feb. 6, 2019). Chairman Schiff added that the Committee planned “to develop legislation and policy reforms to ensure the U. S. government is better positioned to counter future efforts to undermine our political process and national security.” Ibid.
Four days after the Financial Services and Intelligence Committees, the House Committee on Oversight and Reform issued another subpoena, this time to the President’s personal accounting firm, Mazars USA, LLP. The subpoena demanded information related to the President and several affiliated business entities from 2011 through 2018, including statements of financial condition, independent auditors’ reports, financial reports, underlying source documents, and communications between Mazars and the President or his businesses. The subpoena also requested all engagement agreements and contracts “[w]ithout regard to time.” App. to Pet. for Cert. in 19–715, p. 230.

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Chairman Elijah Cummings explained the basis for the subpoena in a memorandum to the Oversight Committee. According to the chairman, recent testimony by the President’s former personal attorney Michael Cohen, along with several documents prepared by Mazars and supplied by Cohen, raised questions about whether the President had accurately represented his financial affairs. Chairman Cummings asserted that the Committee had “full authority to investigate” whether the President: (1) “may have engaged in illegal conduct before and during his tenure in office,” (2) “has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “is complying with the Emoluments Clauses of the Constitution,” and (4) “has accurately reported his finances to the Office of Government Ethics and other federal entities.” App. in No. 19–5142 (CADC), p. 107. “The Committee’s interest in these matters,” Chairman Cummings concluded, “informs its review of multiple laws and legislative proposals under our jurisdiction.” Ibid.
B
Petitioners—the President in his personal capacity, along with his children and affiliated businesses—filed two suits challenging the subpoenas. They contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia (Mazars, No. 19–715), and the subpoenas issued by the Financial Services and Intelligence Committees in the Southern District of New York (Deutsche Bank, No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers. The President did not, however, resist the subpoenas by arguing that any of the requested records were protected by executive privilege. For relief, petitioners asked for declaratory judgments and injunctions preventing Mazars and the banks from complying with the subpoenas. Although named as defendants,

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Mazars and the banks took no positions on the legal issues in these cases, and the House committees intervened to defend the subpoenas.
Petitioners’ challenges failed. In Mazars, the District Court granted judgment for the House, 380 F. Supp. 3d 76 (DC 2019), and the D. C. Circuit affirmed, 940 F. 3d 710 (2019). In upholding the subpoena issued by the Oversight Committee to Mazars, the Court of Appeals found that the subpoena served a “valid legislative purpose” because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates. Id., at 726–742 (internal quotation marks omitted). Judge Rao dissented. As she saw it, the “gravamen” of the subpoena was investigating alleged illegal conduct by the President, and the House must pursue such wrongdoing through its impeachment powers, not its legislative powers. Id., at 773–774. Otherwise, the House could become a “roving inquisition over a co-equal branch of government.” Id., at 748. The D. C. Circuit denied rehearing en banc over several more dissents. 941 F. 3d 1180, 1180–1182 (2019).
In Deutsche Bank, the District Court denied a preliminary injunction, 2019 WL 2204898 (SDNY, May 22, 2019), and the Second Circuit affirmed “in substantial part,” 943 F. 3d 627, 676 (2019). While acknowledging that the subpoenas are “surely broad in scope,” the Court of Appeals held that the Intelligence Committee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence over petitioners and Russian interference with the U. S. political process. Id., at 650, 658– 659. That investigation, the court concluded, could inform legislation to combat foreign meddling and strengthen national security. Id., at 658–659, and n. 59.
As to the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One, the Court of Appeals concluded that they were adequately related to potential legislation on money laundering, terrorist financing,

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and the global movement of illicit funds through the real estate market. Id., at 656–659. Rejecting the contention that the subpoenas improperly targeted the President, the court explained in part that the President’s financial dealings with Deutsche Bank made it “appropriate” for the House to use him as a “case study” to determine “whether new legislation is needed.” Id., at 662–663, n. 67.1
Judge Livingston dissented, seeing no “clear reason why a congressional investigation aimed generally at closing regulatory loopholes in the banking system need focus on over a decade of financial information regarding this President, his family, and his business affairs.” Id., at 687.
We granted certiorari in both cases and stayed the judgments below pending our decision. 589 U. S. ___ (2019).
II A
The question presented is whether the subpoenas exceed the authority of the House under the Constitution. Historically, disputes over congressional demands for presidential documents have not ended up in court. Instead, they have been hashed out in the “hurly-burly, the give-and-take of the political process between the legislative and the executive.” Hearings on S. 2170 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 94th Cong., 1st Sess., 87 (1975) (A. Scalia, Assistant Attorney General, Office of Legal Counsel).
That practice began with George Washington and the

—————— 1 The Court of Appeals directed a “limited” remand for the District
Court to consider whether it was necessary to disclose certain “sensitive personal details” (such as documents reflecting medical services received by employees of the Trump business entities) and a “few” documents that might not relate to the committees’ legislative purposes. 943 F. 3d 627, 667–668, 675 (2019). The Court of Appeals ordered that all other documents be “promptly transmitted” to the committees. Id., at 669.

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early Congress. In 1792, a House committee requested Executive Branch documents pertaining to General St. Clair’s campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana. See T. Taylor, Grand Inquest: The Story of Congressional Investigations 19–23 (1955). Since this was the first such request from Congress, President Washington called a Cabinet meeting, wishing to take care that his response “be rightly conducted” because it could “become a precedent.” 1 Writings of Thomas Jefferson 189 (P. Ford ed. 1892).
The meeting, attended by the likes of Alexander Hamilton, Thomas Jefferson, Edmund Randolph, and Henry Knox, ended with the Cabinet of “one mind”: The House had authority to “institute inquiries” and “call for papers” but the President could “exercise a discretion” over disclosures, “communicat[ing] such papers as the public good would permit” and “refus[ing]” the rest. Id., at 189–190. President Washington then dispatched Jefferson to speak to individual congressmen and “bring them by persuasion into the right channel.” Id., at 190. The discussions were apparently fruitful, as the House later narrowed its request and the documents were supplied without recourse to the courts. See 3 Annals of Cong. 536 (1792); Taylor, supra, at 24.
Jefferson, once he became President, followed Washington’s precedent. In early 1807, after Jefferson had disclosed that “sundry persons” were conspiring to invade Spanish territory in North America with a private army, 16 Annals of Cong. 686–687, the House requested that the President produce any information in his possession touching on the conspiracy (except for information that would harm the public interest), id., at 336, 345, 359. Jefferson chose not to divulge the entire “voluminous” correspondence on the sub-

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Opinion of the Court
ject, explaining that much of it was “private” or mere “rumors” and “neither safety nor justice” permitted him to “expos[e] names” apart from identifying the conspiracy’s “principal actor”: Aaron Burr. Id., at 39–40. Instead of the entire correspondence, Jefferson sent Congress particular documents and a special message summarizing the conspiracy. Id., at 39–43; see generally Vance, ante, at 3–4. Neither Congress nor the President asked the Judiciary to intervene.2
Ever since, congressional demands for the President’s information have been resolved by the political branches without involving this Court. The Reagan and Clinton presidencies provide two modern examples:
During the Reagan administration, a House subcommittee subpoenaed all documents related to the Department of the Interior’s decision whether to designate Canada a reciprocal country for purposes of the Mineral Lands Leasing Act. President Reagan directed that certain documents be withheld because they implicated his confidential relationship with subordinates. While withholding those documents, the administration made “repeated efforts” at accommodation through limited disclosures and testimony over a period of several months. 6 Op. of Office of Legal Counsel 751, 780 (1982). Unsatisfied, the subcommittee and its parent committee eventually voted to hold the Secretary of the Interior in contempt, and an innovative compromise soon followed: All documents were made available, but only for one day with no photocopying, minimal notetaking, and no participation by non-Members of Congress. Id., at 780–781; see H. R. Rep. No. 97–898, pp. 3–8 (1982).

—————— 2 By contrast, later that summer, the Judiciary was called on to resolve
whether President Jefferson could be issued a subpoena duces tecum arising from Burr’s criminal trial. See United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807); see also Trump v. Vance, ante, at 5–7.

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In 1995, a Senate committee subpoenaed notes taken by a White House attorney at a meeting with President Clinton’s personal lawyers concerning the Whitewater controversy. The President resisted the subpoena on the ground that the notes were protected by attorney-client privilege, leading to “long and protracted” negotiations and a Senate threat to seek judicial enforcement of the subpoena. S. Rep. No. 104–204, pp. 16–17 (1996). Eventually the parties reached an agreement, whereby President Clinton avoided the threatened suit, agreed to turn over the notes, and obtained the Senate’s concession that he had not waived any privileges. Ibid.; see L. Fisher, Congressional Research Service, Congressional Investigations: Subpoenas and Contempt Power 16–18 (2003).
Congress and the President maintained this tradition of negotiation and compromise—without the involvement of this Court—until the present dispute. Indeed, from President Washington until now, we have never considered a dispute over a congressional subpoena for the President’s records. And, according to the parties, the appellate courts have addressed such a subpoena only once, when a Senate committee subpoenaed President Nixon during the Watergate scandal. See infra, at 13 (discussing Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (CADC 1974) (en banc)). In that case, the court refused to enforce the subpoena, and the Senate did not seek review by this Court.
This dispute therefore represents a significant departure from historical practice. Although the parties agree that this particular controversy is justiciable, we recognize that it is the first of its kind to reach this Court; that disputes of this sort can raise important issues concerning relations between the branches; that related disputes involving congressional efforts to seek official Executive Branch information recur on a regular basis, including in the context of

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deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve such disputes among themselves without the benefit of guidance from us. Such longstanding practice “ ‘is a consideration of great weight’ ” in cases concerning “the allocation of power between [the] two elected branches of Government,” and it imposes on us a duty of care to ensure that we not needlessly disturb “the compromises and working arrangements that [those] branches . . . themselves have reached.” NLRB v. Noel Canning, 573 U. S. 513, 524–526 (2014) (quoting The Pocket Veto Case, 279 U. S. 655, 689 (1929)). With that in mind, we turn to the question presented.
B
Congress has no enumerated constitutional power to conduct investigations or issue subpoenas, but we have held that each House has power “to secure needed information” in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161 (1927). This “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Id., at 174. Without information, Congress would be shooting in the dark, unable to legislate “wisely or effectively.” Id., at 175. The congressional power to obtain information is “broad” and “indispensable.” Watkins v. United States, 354 U. S. 178, 187, 215 (1957). It encompasses inquiries into the administration of existing laws, studies of proposed laws, and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Id., at 187.
Because this power is “justified solely as an adjunct to the legislative process,” it is subject to several limitations. Id., at 197. Most importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Id., at 187. The subpoena must serve a “valid legislative purpose,” Quinn v. United States, 349

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U. S. 155, 161 (1955); it must “concern[ ] a subject on which legislation ‘could be had,’ ” Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 506 (1975) (quoting McGrain, 273 U. S., at 177).
Furthermore, Congress may not issue a subpoena for the purpose of “law enforcement,” because “those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn, 349 U. S., at 161. Thus Congress may not use subpoenas to “try” someone “before [a] committee for any crime or wrongdoing.” McGrain, 273 U. S., at 179. Congress has no “ ‘general’ power to inquire into private affairs and compel disclosures,” id., at 173–174, and “there is no congressional power to expose for the sake of exposure,” Watkins, 354 U. S., at 200. “Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id., at 187.
Finally, recipients of legislative subpoenas retain their constitutional rights throughout the course of an investigation. See id., at 188, 198. And recipients have long been understood to retain common law and constitutional privileges with respect to certain materials, such as attorneyclient communications and governmental communications protected by executive privilege. See, e.g., Congressional Research Service, supra, at 16–18 (attorney-client privilege); Senate Select Committee, 498 F. 2d, at 727, 730–731 (executive privilege).
C
The President contends, as does the Solicitor General appearing on behalf of the United States, that the usual rules for congressional subpoenas do not govern here because the President’s papers are at issue. They argue for a more demanding standard based in large part on cases involving the Nixon tapes—recordings of conversations between President Nixon and close advisers discussing the break-in at the Democratic National Committee’s headquarters at

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the Watergate complex. The tapes were subpoenaed by a Senate committee and the Special Prosecutor investigating the break-in, prompting President Nixon to invoke executive privilege and leading to two cases addressing the showing necessary to require the President to comply with the subpoenas. See Nixon, 418 U. S. 683; Senate Select Committee, 498 F. 2d 725.
Those cases, the President and the Solicitor General now contend, establish the standard that should govern the House subpoenas here. Quoting Nixon, the President asserts that the House must establish a “demonstrated, specific need” for the financial information, just as the Watergate special prosecutor was required to do in order to obtain the tapes. 418 U. S., at 713. And drawing on Senate Select Committee—the D. C. Circuit case refusing to enforce the Senate subpoena for the tapes—the President and the Solicitor General argue that the House must show that the financial information is “demonstrably critical” to its legislative purpose. 498 F. 2d, at 731.
We disagree that these demanding standards apply here. Unlike the cases before us, Nixon and Senate Select Committee involved Oval Office communications over which the President asserted executive privilege. That privilege safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is “fundamental to the operation of Government.” Nixon, 418 U. S., at 708. As a result, information subject to executive privilege deserves “the greatest protection consistent with the fair administration of justice.” Id., at 715. We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.
The standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities. The President and the

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Solicitor General would apply the same exacting standards to all subpoenas for the President’s information, without recognizing distinctions between privileged and nonprivileged information, between official and personal information, or between various legislative objectives. Such a categorical approach would represent a significant departure from the longstanding way of doing business between the branches, giving short shrift to Congress’s important interests in conducting inquiries to obtain the information it needs to legislate effectively. Confounding the legislature in that effort would be contrary to the principle that:
“It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served.” United States v. Rumely, 345 U. S. 41, 43 (1953) (internal quotation marks omitted).
Legislative inquiries might involve the President in appropriate cases; as noted, Congress’s responsibilities extend to “every affair of government.” Ibid. (internal quotation marks omitted). Because the President’s approach does not take adequate account of these significant congressional interests, we do not adopt it.
D
The House meanwhile would have us ignore that these suits involve the President. Invoking our precedents concerning investigations that did not target the President’s papers, the House urges us to uphold its subpoenas because they “relate[ ] to a valid legislative purpose” or “concern[ ] a

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subject on which legislation could be had.” Brief for Respondent 46 (quoting Barenblatt v. United States, 360 U. S. 109, 127 (1959), and Eastland, 421 U. S., at 506). That approach is appropriate, the House argues, because the cases before us are not “momentous separation-of-powers disputes.” Brief for Respondent 1.
Largely following the House’s lead, the courts below treated these cases much like any other, applying precedents that do not involve the President’s papers. See 943 F. 3d, at 656–670; 940 F. 3d, at 724–742. The Second Circuit concluded that “this case does not concern separation of powers” because the House seeks personal documents and the President sued in his personal capacity. 943 F. 3d, at 669. The D. C. Circuit, for its part, recognized that “separation-of-powers concerns still linger in the air,” and therefore it did not afford deference to the House. 940 F. 3d, at 725–726. But, because the House sought only personal documents, the court concluded that the case “present[ed] no direct interbranch dispute.” Ibid.
The House’s approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. Congress and the President have an ongoing institutional relationship as the “opposite and rival” political branches established by the Constitution. The Federalist No. 51, at 349. As a result, congressional subpoenas directed at the President differ markedly from congressional subpoenas we have previously reviewed, e.g., Barenblatt, 360 U. S., at 127; Eastland, 421 U. S., at 506, and they bear little resemblance to criminal subpoenas issued to the President in the course of a specific investigation, see Vance, ante, p. ___; Nixon, 418 U. S. 683. Unlike those subpoenas, congressional subpoenas for the President’s information unavoidably pit the political branches against one another. Cf. In re Sealed Case, 121 F. 3d 729, 753 (CADC 1997) (“The Presi-

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dent’s ability to withhold information from Congress implicates different constitutional considerations than the President’s ability to withhold evidence in judicial proceedings.”).
Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the President’s personal records. Any personal paper possessed by a President could potentially “relate to” a conceivable subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects. Brief for Respondent 46. The President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on. Indeed, at argument, the House was unable to identify any type of information that lacks some relation to potential legislation. See Tr. of Oral Arg. 52–53, 62–65.
Without limits on its subpoena powers, Congress could “exert an imperious controul” over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared. The Federalist No. 71, at 484 (A. Hamilton); see id., No. 48, at 332–333 (J. Madison); Bowsher v. Synar, 478 U. S. 714, 721–722, 727 (1986). And a limitless subpoena power would transform the “established practice” of the political branches. Noel Canning, 573 U. S., at 524 (internal quotation marks omitted). Instead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court.
The House and the courts below suggest that these separation of powers concerns are not fully implicated by the particular subpoenas here, but we disagree. We would have to be “blind” not to see what “[a]ll others can see and understand”: that the subpoenas do not represent a run-of-themill legislative effort but rather a clash between rival

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branches of government over records of intense political interest for all involved. Rumely, 345 U. S., at 44 (quoting Child Labor Tax Case, 259 U. S. 20, 37 (1922) (Taft, C. J.)).
The interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs. “The interest of the man” is often “connected with the constitutional rights of the place.” The Federalist No. 51, at 349. Given the close connection between the Office of the President and its occupant, congressional demands for the President’s papers can implicate the relationship between the branches regardless whether those papers are personal or official. Either way, a demand may aim to harass the President or render him “complaisan[t] to the humors of the Legislature.” Id., No. 71, at 483. In fact, a subpoena for personal papers may pose a heightened risk of such impermissible purposes, precisely because of the documents’ personal nature and their less evident connection to a legislative task. No one can say that the controversy here is less significant to the relationship between the branches simply because it involves personal papers. Quite the opposite. That appears to be what makes the matter of such great consequence to the President and Congress.
In addition, separation of powers concerns are no less palpable here simply because the subpoenas were issued to third parties. Congressional demands for the President’s information present an interbranch conflict no matter where the information is held—it is, after all, the President’s information. Were it otherwise, Congress could sidestep constitutional requirements any time a President’s information is entrusted to a third party—as occurs with rapidly increasing frequency. Cf. Carpenter v. United States, 585 U. S. ___, ___, ___ (2018) (slip op., at 15, 17).

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Indeed, Congress could declare open season on the President’s information held by schools, archives, internet service providers, e-mail clients, and financial institutions. The Constitution does not tolerate such ready evasion; it “deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867).
E
Congressional subpoenas for the President’s personal information implicate weighty concerns regarding the separation of powers. Neither side, however, identifies an approach that accounts for these concerns. For more than two centuries, the political branches have resolved information disputes using the wide variety of means that the Constitution puts at their disposal. The nature of such interactions would be transformed by judicial enforcement of either of the approaches suggested by the parties, eroding a “[d]eeply embedded traditional way[ ] of conducting government.” Youngstown Sheet & Tube Co., 343 U. S., at 610 (Frankfurter, J., concurring).
A balanced approach is necessary, one that takes a “considerable impression” from “the practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); see Noel Canning, 573 U. S., at 524–526, and “resist[s]” the “pressure inherent within each of the separate Branches to exceed the outer limits of its power,” INS v. Chadha, 462 U. S. 919, 951 (1983). We therefore conclude that, in assessing whether a subpoena directed at the President’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” Watkins, 354 U. S., at 187, courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the “unique position” of the President, Clinton, 520 U. S., at 698 (internal quotation marks omitted). Several special considerations inform this analysis.

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First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “ ‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (2004) (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. The President’s unique constitutional position means that Congress may not look to him as a “case study” for general legislation. Cf. 943 F. 3d, at 662–663, n. 67.
Unlike in criminal proceedings, where “[t]he very integrity of the judicial system” would be undermined without “full disclosure of all the facts,” Nixon, 418 U. S., at 709, efforts to craft legislation involve predictive policy judgments that are “not hamper[ed] . . . in quite the same way” when every scrap of potentially relevant evidence is not available, Cheney, 542 U. S., at 384; see Senate Select Committee, 498 F. 2d, at 732. While we certainly recognize Congress’s important interests in obtaining information through appropriate inquiries, those interests are not sufficiently powerful to justify access to the President’s personal papers when other sources could provide Congress the information it needs.
Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney, 542 U. S., at 387.
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and

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substantial the evidence of Congress’s legislative purpose, the better. See Watkins, 354 U. S., at 201, 205 (preferring such evidence over “vague” and “loosely worded” evidence of Congress’s purpose). That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. In such cases, it is “impossible” to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of the possible legislation. Id., at 205–206, 214–215.
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. We have held that burdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. See Vance, ante, at 12–14; Clinton, 520 U. S., at 704–705. But burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.
Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.
When Congress seeks information “needed for intelligent legislative action,” it “unquestionably” remains “the duty of all citizens to cooperate.” Watkins, 354 U. S., at 187 (emphasis added). Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

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THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 19–715 and 19–760
_________________

DONALD J. TRUMP, ET AL., PETITIONERS

19–715

v.

MAZARS USA, LLP, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

DONALD J. TRUMP, ET AL., PETITIONERS

19–760

v.

DEUTSCHE BANK AG, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[July 9, 2020]

JUSTICE THOMAS, dissenting.
Three Committees of the U. S. House of Representatives issued subpoenas to several accounting and financial firms to obtain the personal financial records of the President, his family, and several of his business entities. The Committees do not argue that these subpoenas were issued pursuant to the House’s impeachment power. Instead, they argue that the subpoenas are a valid exercise of their legislative powers.
Petitioners challenge the validity of these subpoenas. In doing so, they call into question our precedents to the extent that they allow Congress to issue legislative subpoenas for the President’s private, nonofficial documents. I would hold that Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not. Congress may be able to obtain these documents as part of an investigation of the President, but

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THOMAS, J., dissenting
to do so, it must proceed under the impeachment power. Accordingly, I would reverse the judgments of the Courts of Appeals.
I
I begin with the Committees’ claim that the House’s legislative powers include the implied power to issue legislative subpoenas. Although the Founders understood that the enumerated powers in the Constitution included implied powers, the Committees’ test for the scope of those powers is too broad.
“The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803). The structure of limited and enumerated powers in our Constitution denotes that “[o]ur system of government rests on one overriding principle: All power stems from the consent of the people.” U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 846 (1995) (THOMAS, J., dissenting). As a result, Congress may exercise only those powers given by the people of the States through the Constitution.
The Founders nevertheless understood that an enumerated power could necessarily bring with it implied powers. The idea of implied powers usually arises in the context of the Necessary and Proper Clause, which gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, §8, cl. 18. As I have previously explained, the Necessary and Proper Clause simply “made explicit what was already implicit in the grant of each enumerated power.” United States v. Comstock, 560 U. S. 126, 161 (2010) (dissenting opinion). That is, “the grant of a gen-

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eral power includes the grant of incidental powers for carrying it out.” Bray, “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev. 687, 741 (2016).
The scope of these implied powers is very limited. The Constitution does not sweep in powers “of inferior importance, merely because they are inferior.” McCulloch v. Maryland, 4 Wheat. 316, 408 (1819). Instead, Congress “can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.” Martin v. Hunter’s Lessee, 1 Wheat. 304, 326 (1816). In sum, while the Committees’ theory of an implied power is not categorically wrong, that power must be necessarily implied from an enumerated power.
II
At the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’ legislative powers. This understanding persisted for decades and is consistent with the Court’s first decision addressing legislative subpoenas, Kilbourn v. Thompson, 103 U. S. 168 (1881). The test that this Court created in McGrain v. Daugherty, 273 U. S. 135 (1927), and the majority’s variation on that standard today, are without support as applied to private, nonofficial documents.1
A
The Committees argue that Congress wields the same investigatory powers that the British Parliament did at the time of the founding. But this claim overlooks one of the fundamental differences between our Government and the British Government: Parliament was supreme. Congress is
—————— 1 I express no opinion about the constitutionality of legislative subpoe-
nas for other kinds of evidence.

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not. I have previously explained that “the founding genera-
tion did not subscribe to Blackstone’s view of parliamentary supremacy.” Department of Transportation v. Association of American Railroads, 575 U. S. 43, 74 (2015) (opinion concurring in judgment). “Parliament’s violations of the law of the land had been a significant complaint of the American Revolution.” Id., at 74–75. “And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law.” Id., at 75.
James Wilson, signer of the Constitution and future Justice, explained this difference to the Pennsylvania ratifying convention: “Blackstone will tell you, that in Britain [the supreme power] is lodged in the British Parliament; and I believe there is no writer on the other side of the Atlantic” who thought otherwise. 2 Documentary History of the Ratification of the Constitution 471 (M. Jensen ed. 1976) (Documentary History). In the United States, however, “the supreme, absolute, and uncontrollable authority, remains with the people.” Id., at 472. And “[t]he Constitution plainly sets forth the ‘few and defined’ powers that Congress may exercise.” Comstock, 560 U. S., at 159 (THOMAS, J., dissenting); see also McCulloch, 4 Wheat., at 405; Marbury, 1 Cranch, at 176. This significant difference means that Parliament’s powers and Congress’ powers are not necessarily the same.
In fact, the plain text of the Constitution makes clear that they are not. The Constitution expressly denies to Congress some of the powers that Parliament exercised. Article I, for example, prohibits bills of attainder, §9, cl. 3, which Parliament used to “sentenc[e] to death one or more specific persons.” United States v. Brown, 381 U. S. 437, 441 (1965). A legislature can hardly be considered supreme if it lacks the power to pass bills of attainder, which Justice Story called the “highest power of sovereignty.” 3 Commentaries on the

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Constitution of the United States §1338, p. 210 (1833). Relatedly, the Constitution prohibits ex post facto laws, §9, cl. 3, reinforcing the fact that Congress’ power to punish is limited.2 And in a system in which Congress is not supreme, the individual protections in the Bill of Rights, such as the prohibition on unreasonable searches and seizures, meaningfully constrain Congress’ power to compel documents from private citizens. Cf. 1 St. George Tucker, Blackstone’s Commentaries 203–205, n. § (1803); see also D. Currie, The Constitution in Congress: The Federalist Period, 1789–1801, p. 268 (1997).
Furthermore, Kilbourn—this Court’s first decision on the constitutionality of legislative subpoenas—emphasized that Parliament had more powers than Congress. There, the congressional respondents relied on Parliament’s investigatory power to support a legislative subpoena for testimony and documents. The Court rejected the analogy because the judicial powers of the House of Commons—the lower house of Parliament—exceeded the judicial functions of the House of Representatives. Kilbourn, supra, at 189. At bottom, Kilbourn recognized that legislative supremacy was decisively rejected in the framing and ratification of our Constitution, which casts doubt on the Committees’ claim that they have power to issue legislative subpoenas to private parties.
B
The subpoenas in these cases also cannot be justified based on the practices of 18th-century American legisla-

—————— 2 The Constitution also enumerates a limited set of congressional priv-
ileges. Although I express no opinion on the question, at least one early commentator thought the canon of expressio unius meant that Congress had no unenumerated privileges, such as the power to hold nonmembers in contempt. 1 St. George Tucker, Blackstone’s Commentaries 200, n. § (1803).

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tures. Amici supporting the Committees resist this conclusion, but the examples they cite materially differ from the legislative subpoenas at issue here.
First, amici cite investigations in which legislatures sought to compel testimony from government officials on government matters. The subjects included military affairs, taxes, government finances, and the judiciary. Potts, Power of Legislative Bodies To Punish for Contempt, 74 U. Pa. L. Rev. 691, 708, 709, 710, 716–717 (1926) (Potts); see also E. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress To Investigate and Punish for Contempt 18 (1928) (Eberling). But the information sought in these examples was official, not private. Underscoring this distinction, at least one revolutionary-era State Constitution permitted the legislature to “call for all public or official papers and records, and send for persons, whom they may judge necessary in the course of their inquiries, concerning affairs relating to the public interest.” Md. Const., Art. X (1776) (emphasis added).
Second, 18th-century legislatures conducted nonlegislative investigations. For example, the New York colonial legislature tasked one committee with investigating a nuisance complaint and gave it the “power to send for persons, papers and records.” Eberling 18; see also id., at 19 (investigation of a government contract obtained by alleged wrongdoing); Potts 716 (investigation of armed resistance). But to describe this category is to distinguish it. Here, the Committees assert only a legislative purpose.
Third, colonial and state legislatures investigated and punished insults, libels, and bribery of members. For example, the Pennsylvania colonial assembly investigated “injurious charges, and slanderous Aspersions against the Conduct of the late Assembly” made by two individuals. Id., at 710 (internal quotation marks omitted); see also id., at 717; Eberling 20–21. But once again, to describe this cate-

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gory is to distinguish it because the subpoenas here are justified only as incidental to the power to legislate, not the power to punish libels or bribery. In short, none of the examples from 18th-century colonial and state history support a power to issue a legislative subpoena for private, nonofficial documents.
C
Given that Congress has no exact precursor in England or colonial America, founding-era congressional practice is especially informative about the scope of implied legislative powers. Thus, it is highly probative that no founding-era Congress issued a subpoena for private, nonofficial documents. Although respondents could not identify the first such legislative subpoena at oral argument, Tr. of Oral Arg. 56, Congress began issuing them by the end of the 1830s. However, the practice remained controversial in Congress and this Court throughout the first century of the Republic.
1
In an attempt to establish the power of Congress to issue legislative subpoenas, the Committees point to an investigation of Government affairs and an investigation under one of Congress’ enumerated privileges. Both precedents are materially different from the subpoenas here.
In 1792, the House authorized a Committee to investigate a failed military expedition led by General Arthur St. Clair. 3 Hinds’ Precedents of the House of Representatives of the United States §1725, pp. 79–80 (1907) (Hinds). The Committee was “empowered to call for such persons, papers and records as may be necessary to assist their inquiries.” Ibid. But the Committee never subpoenaed private, nonofficial documents, which is telling. Whereas a subpoena for Government documents does not implicate concerns about property rights or the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects,

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against unreasonable searches and seizures,” a subpoena for private, nonofficial documents raises those questions. Thus, the power to subpoena private documents, which the Committee did not exercise, is a far greater power and much less likely to be implied in Congress’ legislative powers.
In 1832, the House investigated Representative Samuel Houston for assaulting Representative William Stanberry. Stanberry had accused Houston of collusion with Secretary of War John Eaton in connection with a bid for a Government contract, and the House initiated an investigation into the truthfulness of Stanberry’s accusation. 8 Cong. Deb. 2550, 3022–3023 (1832). The House subpoenaed witnesses to testify, and one of them brought official correspondence between the Secretary of War and the President. H. R. Rep. No. 502, 22d Cong., 1st Sess. 64, 66–67 (1832). But official documents are obviously different from nonofficial documents. Moreover, the subpoenas were issued pursuant to the House’s enumerated privilege of punishing its own Members, Art. I, §5, not as part of its legislative powers. Because these subpoenas were not issued pursuant to a legislative power, they do not aid the Committees’ case.
2
As late as 1827, a majority of the House declined to authorize the Committee on Manufactures to subpoena documents, amid concerns that it was unprecedented. During the debate over the resolution, one opponent remarked that “[t]here is no instance under this Government, within my recollection, where this power has been given for the mere purpose of enabling a committee of this House to adjust the details of an ordinary bill.” 4 Cong. Deb. 865–866 (Rep. Strong); see also id., at 862 (referring to “authority to bring any citizens of the United States . . . whom they might choose to send for, and compel them to give answers to every inquiry which should be addressed to them” as “very

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extraordinary”). Another opponent stated that the Committee had requested a power that had “not heretofore been thought necessary to enable that Committee to acquire correct information.” Id., at 866 (Rep. Storrs). A third called it “not only novel and extraordinary, but wholly unnecessary.” Id., at 874 (Rep. Stewart); see also id., at 884–885 (Rep. Wright). No supporter of the resolution offered a specific precedent for doing so, and the House ultimately authorized the Committee to send for persons only. Id., at 889–890.
This debate is particularly significant because of the arguments made by both sides. Proponents made essentially the same arguments the Committees raise here—that the power to send for persons and papers was necessary to inform Congress as it legislated. Id., at 871 (Rep. Livingston). Opponents argued that this power was not part of any legislative function. Id., at 865–866 (Rep. Strong). They also argued that the House of Commons provided no precedent because Congress was a body of limited and enumerated powers. Id., at 882 (Rep. Wood). And in the end, the opponents prevailed. Thus, through 1827, the idea that Congress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id., at 874.
3
By the end of the 1830s, Congress began issuing legislative subpoenas for private, nonofficial documents. See Eberling 123–126. Still, the power to demand information from private parties during legislative investigations remained controversial.
In 1832, the House authorized a Committee to “inspect the books, and to examine into the proceedings of the Bank of the United States, to report thereon, and to report whether the provisions of its charter have been violated or

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not.” 8 Cong. Deb. 2160, 2164. The House gave the Committee “power to send for persons and papers.” Id., at 2160. The power to inspect the books of the Bank of the United States is not itself a clear example of a legislative subpoena for private, nonofficial documents, because the Bank was a federally chartered corporation and was required to allow Congress to inspect its books. App. to 8 Cong. Deb. 54 (1833). The investigation itself appears to have ranged more widely, however, leading Congressman John Quincy Adams to criticize
“investigations which must necessarily implicate not only the president and directors of the bank, and their proceedings, but the rights, the interests, the fortunes, and the reputation of individuals not responsible for those proceedings, and whom neither the committee nor the House had the power to try, or even accuse before any other tribunal.” Ibid.
Adams continued that such an investigation “bears all the exceptionable and odious properties of general warrants and domiciliary visits.” Ibid. He also objected that the Committee’s investigation of the Bank was tantamount to punishment and thus was in tension with the constitutional prohibitions on “passing any bill of attainder [or] ex post facto law.” Id., at 60. Thus, even when Congress authorized a Committee to send for private papers, the constitutionality of doing so was questioned.
An 1859 Senate investigation, which the Court of Appeals cited as precedent, underscores that legislative subpoenas to private parties were a 19th-century innovation. Following abolitionist John Brown’s raid at Harper’s Ferry, Senate Democrats opened an investigation apparently designed to embarrass opponents of slavery. As part of the investigation, they called private individuals to testify. Senator Charles Sumner, a leading opponent of slavery, railed against the proceedings:

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“I know it is said that this power is necessary in aid of legislation. I deny the necessity. Convenient, at times, it may be; but necessary, never. We do not drag the members of the Cabinet or the President to testify before a committee in aid of legislation; but I say, without hesitation, they can claim no immunity which does not belong equally to the humblest citizen.” Cong. Globe, 36th Cong., 1st Sess., 3007 (1860).
Sumner also addressed the matter of Parliament’s powers, calling them “more or less inapplicable” because “[w]e live under a written Constitution, with certain specified powers; and all these are restrained by the tenth amendment.” Ibid. For Sumner, as for Adams, the power to issue legislative subpoenas to private parties was a “dangerous absurdity” with no basis in the text or history of the Constitution. Ibid.3
4
When this Court first addressed a legislative subpoena, it refused to uphold it. After casting doubt on legislative subpoenas generally, the Court in Kilbourn v. Thompson, 103 U. S. 168, held that the subpoena at issue was unlawful because it sought to investigate private conduct.
In 1876, the House created a special Committee to investigate the failure of a major bank, which caused the loss of federal funds and related to financial speculation in the District of Columbia. Id., at 171. The Committee issued a subpoena to Kilbourn, an employee of the bank. Id., at 172. When he refused to answer questions or produce documents, the House held him in contempt and arrested him. Id., at 173. After his release, he sued the Speaker, several

—————— 3 I note as well that Sumner expressly distinguished legislative sub-
poenas from subpoenas issued during “those inquiries which are in their nature preliminary to an impeachment.” Cong. Globe, 36th Cong., 1st Sess., 3007 (1860).

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Committee members, and the Sergeant at Arms for damages.
The Court discussed the arguments for an “impli[ed]” power to issue legislative subpoenas. Id., at 183. As the Court saw it, there were two arguments: “1, its exercise by the House of Commons of England . . . and, 2d, the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the powers which the Constitution has conferred on them.” Ibid.
The Court rejected the first argument. It found “no difference of opinion as to [the] origin” of the House of Commons’ subpoena power:
“[T]he two Houses of Parliament were each courts of judicature originally, which, though divested by usage, and by statute, probably, of many of their judicial functions, have yet retained so much of that power as enables them, like any other court, to punish for a contempt of these privileges and authority that the power rests.” Id., at 184.
Even after the division of Parliament into two houses, “[t]o the Commons was left the power of impeachment, and, perhaps, others of a judicial character, and jointly they exercised, until a very recent period, the power of passing bills of attainder for treason and other high crimes which are in their nature punishment for crime declared judicially by the High Court of Parliament.” Ibid. By contrast, the House of Representatives “is in no sense a court, . . . exercises no functions derived from its once having been a part of the highest court of the realm,” and has no judicial functions beyond “punishing its own members and determining their election.” Id., at 189. The Court thus rejected the notion that Congress inherited from Parliament an implied power to issue legislative subpoenas.
The Court did not reach a conclusion on the second theory

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that a legislative subpoena power was necessary for Congress to carry out its legislative duties. But it observed that, based on British judicial opinions, not “much aid [is] given to the doctrine, that this power exists as one necessary to enable either House of Congress to exercise successfully their function of legislation.” Ibid. The Court referred to a collection of 18th- and 19th-century English decisions grounding the Parliamentary subpoena power in that body’s judicial origins. Id., at 184–189 (citing Burdett v. Abbott, 104 Eng. Rep. 501 (K. B. 1811); Brass Crosby’s Case, 95 Eng. Rep. 1005 (C. P. 1771); Stockdale v. Hansard, 112 Eng. Rep. 1112 (K. B. 1839); and Kielley v. Carson, 13 Eng. Rep. 225 (P. C. 1841)). The Court placed particular emphasis on Kielley, in which the Privy Council held that the Legislative Assembly of Newfoundland lacked a power to punish for contempt. The Privy Council expressly stated that the House of Commons could punish for contempt
“ ‘not because it is a representative body with legislative functions, but by virtue of ancient usage and prescription . . . which forms a part of the common law of the land, and according to which the High Court of Parliament before its division, and the Houses of Lords and Commons since, are invested with many privileges, that of punishment for contempt being one.’ ” Kilbourn, 103 U. S., at 188–189.
This Court also noted that the Privy Council “discusse[d] at length the necessity of this power in a legislative body for its protection, and to enable it to discharge its law-making functions, and decide[d] against the proposition.” Id., at 189. Although the Court did not have occasion to decide whether the legislative subpoena in that case was necessary to the exercise of Congress’ legislative powers, its dis-

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cussion strongly suggests the subpoena was unconstitutional.4
The Court instead based its decision on the fact that the subpoena at issue “ma[de] inquiry into the private affairs of the citizen.” Id., at 190. Such a power, the Court reasoned, “is judicial and not legislative,” id., at 193, and “no judicial power is vested in the Congress or either branch of it, save in the cases” of punishing Members, compelling Members’ attendance, judging elections and qualifications, and impeachment and trial, id., at 192–193. Notably, the Court found no indication that the House “avowed to impeach the secretary,” or else “the whole aspect of the case would have been changed.” Id., at 193. Even though the Court decided Kilbourn narrowly, it clearly entertained substantial doubts about the constitutionality of legislative subpoenas for private documents.
D
Nearly half a century later, in McGrain v. Daugherty, the Court reached the question reserved in Kilbourn—whether Congress has the power to issue legislative subpoenas. It rejected Kilbourn’s reasoning and upheld the power to issue legislative subpoenas as long as they were relevant to a legislative power. Although McGrain involved oral testimony, the Court has since extended this test to subpoenas for private documents. The Committees rely on McGrain, but this line of cases misunderstands both the original meaning of Article I and the historical practice underlying it.

—————— 4 According to Justice Miller’s private letters, “a majority of the Court,
including Miller himself, were of the opinion that neither House nor Senate had power to punish for contempt witnesses who refused to testify before investigating committees.” T. Taylor, Grand Inquest: The Story of Congressional Investigations 49 (1955). Only Justice Miller’s desire to “ ‘decid[e] no more than is necessary’ ” caused the Court to avoid the broader question. Ibid.

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1
Shortly before Attorney General Harry Daugherty resigned in 1924, the Senate opened an investigation into his “ ‘alleged failure’ ” to prosecute monopolists, the protagonists of the Teapot Dome scandal, and “ ‘many others.’ ” McGrain, 273 U. S., at 151. The investigating Committee issued subpoenas to Daugherty’s brother, Mally, who refused to comply and was arrested in Ohio for failure to testify. Id., at 152–154. Mally petitioned for a writ of habeas corpus, and the District Court discharged him, based largely on Kilbourn. Ex parte Daugherty, 299 F. 620 (SD Ohio 1924). The Deputy Sergeant at Arms who arrested Mally directly appealed to this Court, which reversed.
The Court concluded that, “[i]n actual legislative practice[,] power to secure needed information by [investigating and compelling testimony] has long been treated as an attribute of the power to legislate.” McGrain, 273 U. S., at 161. The Court specifically found that “[i]t was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution” and that “a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures.” Ibid. But the authority cited by the Court did not support that proposition. The Court cited the 1792 investigation of St. Clair’s defeat, in which it appears no subpoena was issued, supra, at 7–8, and the 1859 Senate investigation of John Brown’s raid on Harper’s Ferry, which led to an impassioned debate. 273 U. S., at 162–164. Thus, for the reasons explained above, the examples relied on in McGrain are materially different from issuing a legislative subpoena for private, nonofficial documents. See supra, at 7, 10–11.5

—————— 5 The Court also cited decisions between 1858 and 1913 from state
courts and a Canadian court, none of which are persuasive evidence about the original meaning of the U. S. Constitution. McGrain, 273 U. S., at 165–167.

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The Court acknowledged Kilbourn, but erroneously distinguished its discussion regarding the constitutionality of legislative subpoenas as immaterial dicta. McGrain, supra, at 170–171 (quoting Kilbourn, supra, at 189). The Court concluded that “the two houses of Congress, in their separate relations, possess not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective.” McGrain, supra, at 173.
Instead of relying on Kilbourn’s analysis, McGrain developed a test that rested heavily on functional considerations. The Court wrote that “[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 175. Because “mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete,” “some means of compulsion are essential to obtain what is needed.” Ibid.
The Court thus concluded that Congress could issue legislative subpoenas, provided that “the purpose for which the witness’s testimony was sought was to obtain information in aid of the legislative function.” Id., at 176. The Court has since applied this test to subpoenas for papers without any further analysis of the text or history of the Constitution. See Eastland v. United States Servicemen’s Fund, 421 U. S. 491, 504–505 (1975). The majority today modifies that test for cases involving the President, but it leaves the core of the power untouched. Ante, at 18–20.
2
The opinion in McGrain lacks any foundation in text or history with respect to subpoenas for private, nonofficial documents. It fails to recognize that Congress, unlike Parliament, is not supreme. It does not cite any specific prece-

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dent for issuing legislative subpoenas for private documents from 18th-century colonial or state practice. And it identifies no founding-era legislative subpoenas for private documents.6
Since McGrain, the Court has pared back Congress’ authority to compel testimony and documents. It has held that certain convictions of witnesses for contempt of Congress violated the Fifth Amendment. See Watkins v. United States, 354 U. S. 178 (1957) (Due Process Clause); Quinn v. United States, 349 U. S. 155 (1955) (Self-Incrimination Clause); see also Barenblatt v. United States, 360 U. S. 109, 153–154 (1959) (Black, J., dissenting). It has also affirmed the reversal of a conviction on the ground that the Committee lacked authority to issue the subpoena. See United States v. Rumely, 345 U. S. 41 (1953). And today, it creates a new four-part, nonexhaustive test for cases involving the President. Ante, at 18–20. Rather than continue our trend of trying to compensate for McGrain, I would simply decline to apply it in these cases because it is readily apparent that the Committees have no constitutional authority to subpoena private, nonofficial documents.
III
If the Committees wish to investigate alleged wrongdoing by the President and obtain documents from him, the Constitution provides Congress with a special mechanism for

—————— 6 The Court further observed that Congress has long exercised the
power to hold nonmembers in contempt for reasons other than failure to comply with a legislative subpoena. McGrain, supra, at 168–169. The earliest case it cited, Anderson v. Dunn, 6 Wheat. 204 (1821), relied on arguments about Congress’ power of self-protection, id., at 226–227. Members of Congress defending the use of contempt for these other purposes made similar arguments about self-protection. 5 Annals of Cong. 181–182 (1795) (Rep. W. Smith); id., at 189 (Rep. I. Smith). But the failure to respond to a subpoena does not pose a fundamental threat to Congress’ ability to exercise its powers.

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doing so: impeachment.7
A
It is often acknowledged, “if only half-heartedly honored,” that one of the motivating principles of our Constitution is the separation of powers. Association of American Railroads, 575 U. S., at 74 (THOMAS, J., concurring in judgment). The Framers recognized that there are three forms of governmental power: legislative, executive and judicial. The Framers also created three branches: Congress, the President, and the Judiciary. The three powers largely align with the three branches. To a limited extent, however, the Constitution contains “a partial intermixture of those departments for special purposes.” The Federalist No. 66, p. 401 (C. Rossiter ed. 1961) (A. Hamilton). One of those special purposes is the system of checks and balances, and impeachment is one of those checks.
The Constitution grants the House “the sole Power of Impeachment,” Art. I, §2, cl. 5, and it specifies that the President may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” Art. II, §4. The founding generation understood impeachment as a check on Presidential abuses. In response to charges that impeachment “confounds legislative and judiciary authorities in the same body,” Alexander Hamilton called it “an essential check in the hands of [Congress] upon the encroachments of the executive.” The Federalist No. 66, at 401–402. And, in the Virginia ratifying convention, James Madison identified impeachment as a check on Presidential abuse of the treaty power. 10 Documentary History 1397.
B
The power to impeach includes a power to investigate and
—————— 7 I express no view on whether there are any limitations on the im-
peachment power that would prevent the House from subpoenaing the documents at issue.

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demand documents. Impeachments in the States often involved an investigation. In 1781, the Virginia Legislature began what Edmund Randolph called an “impeachment” of then-Governor Thomas Jefferson. P. Hoffer & N. Hull, Impeachment in America, 1635–1805, p. 85 (1984). This “most publicized and far-reaching impeachment inquiry for incompetence” included an “ ‘inquir[y] into the conduct of the executive of this state for the last two months.’ ” Ibid. The legislatures of New Jersey, id., at 92, and Pennsylvania, id., at 93–95, similarly investigated officials through impeachment proceedings.
Reinforcing this understanding, the founding generation repeatedly referred to impeachment as an “inquest.” See 4 Debates on the Constitution 44 (J. Elliot ed. 1854) (speech of A. Maclaine) (referring to the House as “the grand inquest of the Union at large”); The Federalist No. 65, at 397 (Hamilton) (referring to the House as “a method of NATIONAL INQUEST”); 2 Records of the Federal Convention 154 (M. Farrand ed. 1911) (record from the Committee of Detail stating that “[t]he House of Representatives shall be the grand Inquest of this Nation; and all Impeachments shall be made by them”); see also Mass. Const., ch. 1, §3, Art. VI (1780) (referring to the Massachusetts House of Representatives as “the Grand Inquest of this Commonwealth”). At the time, an “inquest” referred to an “[i]nquiry, especially that made by a Jury” or “the Jury itself.” N. Bailey, Universal Etymological Dictionary (22d ed. 1770).
The Founders were also aware of the contemporaneous impeachment of Warren Hastings in England, in which the House of Commons heard witnesses before voting to impeach. P. Marshall, The Impeachment of Warren Hastings 40–41, 58 (1965). In the first impeachment under the new Constitution, Congressmen cited the Hastings impeachment as precedent for several points, including the power to take testimony before impeaching. 7 Annals of Cong. 456 (1797) (Rep. Rutledge); id., at 459 (Rep. Sitgreaves); id., at

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460 (Rep. Gallatin). Other evidence from the 1790s confirms that the power
to investigate includes the power to demand documents. When the House of Representatives sought documents related to the Jay Treaty from President George Washington, he refused to provide them on the ground that the House had no legislative powers relating to the ratification of treaties. 5 Annals of Cong. 760–762 (1796). But he carefully noted that “[i]t does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed.” Id., at 760. In other words, he understood that the House can demand documents as part of its power to impeach.
This Court has also long recognized the power of the House to demand documents. Even as it questioned the power to issue legislative subpoenas, the Court in Kilbourn acknowledged the ability to “compel the attendance of witnesses, and their answer to proper questions” when “the question of . . . impeachment is before either body acting in its appropriate sphere on that subject.” 103 U. S., at 190.
I express no view today on the boundaries of the power to demand documents in connection with impeachment proceedings. But the power of impeachment provides the House with authority to investigate and hold accountable Presidents who commit high crimes or misdemeanors. That is the proper path by which the Committees should pursue their demands.
IV
For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdoing by the President outside the context of impeachment. Congress investigated Presidents without opening impeachment proceedings. See, e.g., 2 Hinds §1596, at 1043– 1045 (President James Buchanan). But it never issued a

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subpoena for private, nonofficial documents as part of those non-impeachment inquiries. Perhaps most strikingly, one proposed request for official documents from the President was amended after objection so that it “ ‘requested’ ” them rather than “ ‘direct[ing]’ ” the President to provide them. 3 id., §1895, at 193.
Insisting that the House proceed through its impeachment power is not a mere formality. Unlike contempt, which is governed by the rules of each chamber, impeachment and removal constitutionally requires a majority vote by the House and a two-thirds vote by the Senate. Art. I, §2, cl. 5; §3, cl. 6. In addition, Congress has long thought it necessary to provide certain procedural safeguards to officials facing impeachment and removal. See, e.g., 3 Annals of Cong. 903 (1793) (Rep. W. Smith). Finally, initiating impeachment proceedings signals to the public the gravity of seeking the removal of a constitutional officer at the head of a coordinate branch. 940 F. 3d 710, 776 (CADC 2019) (Rao, J., dissenting).
* * *
Congress’ legislative powers do not authorize it to engage in a nationwide inquisition with whatever resources it chooses to appropriate for itself. The majority’s solution— a nonexhaustive four-factor test of uncertain origin—is better than nothing. But the power that Congress seeks to exercise here has even less basis in the Constitution than the majority supposes. I would reverse in full because the power to subpoena private, nonofficial documents is not a necessary implication of Congress’ legislative powers. If Congress wishes to obtain these documents, it should proceed through the impeachment power. Accordingly, I respectfully dissent.

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1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

Nos. 19–715 and 19–760
_________________

DONALD J. TRUMP, ET AL., PETITIONERS

19–715

v.

MAZARS USA, LLP, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

DONALD J. TRUMP, ET AL., PETITIONERS

19–760

v.

DEUTSCHE BANK AG, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[July 9, 2020]

JUSTICE ALITO, dissenting.
JUSTICE THOMAS makes a valuable argument about the constitutionality of congressional subpoenas for a President’s personal documents. In these cases, however, I would assume for the sake of argument that such subpoenas are not categorically barred. Nevertheless, legislative subpoenas for a President’s personal documents are inherently suspicious. Such documents are seldom of any special value in considering potential legislation, and subpoenas for such documents can easily be used for improper non-legislative purposes. Accordingly, courts must be very sensitive to separation of powers issues when they are asked to approve the enforcement of such subpoenas.
In many cases, disputes about subpoenas for Presidential documents are fought without judicial involvement. If Congress attempts to obtain such documents by subpoenaing a President directly, those two heavyweight institutions can

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use their considerable weapons to settle the matter. See ante, at 10 (opinion of the Court) (“Congress and the President maintained this tradition of negotiation and compromise—without the involvement of this Court—until the present dispute”). But when Congress issues such a subpoena to a third party, Congress must surely appreciate that the Judiciary may be pulled into the dispute, and Congress should not expect that the courts will allow the subpoena to be enforced without seriously examining its legitimacy.
Whenever such a subpoena comes before a court, Congress should be required to make more than a perfunctory showing that it is seeking the documents for a legitimate legislative purpose and not for the purpose of exposing supposed Presidential wrongdoing. See ante, at 12. The House can inquire about possible Presidential wrongdoing pursuant to its impeachment power, see ante, at 17–21 (THOMAS, J., dissenting), but the Committees do not defend these subpoenas as ancillary to that power.
Instead, they claim that the subpoenas were issued to gather information that is relevant to legislative issues, but there is disturbing evidence of an improper law enforcement purpose. See 940 F. 3d 710, 767–771 (CADC 2019) (Rao, J., dissenting). In addition, the sheer volume of documents sought calls out for explanation. See 943 F. 3d 627, 676–681 (CA2 2019) (Livingston, J., concurring in part and dissenting in part).
The Court recognizes that the decisions below did not give adequate consideration to separation of powers concerns. Therefore, after setting out a non-exhaustive list of considerations for the lower courts to take into account, ante, at 18–20, the Court vacates the judgments of the Courts of Appeals and sends the cases back for reconsideration. I agree that the lower courts erred and that these cases must be remanded, but I do not think that the consid-

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ALITO, J., dissenting
erations outlined by the Court can be properly satisfied unless the House is required to show more than it has put forward to date.
Specifically, the House should provide a description of the type of legislation being considered, and while great specificity is not necessary, the description should be sufficient to permit a court to assess whether the particular records sought are of any special importance. The House should also spell out its constitutional authority to enact the type of legislation that it is contemplating, and it should justify the scope of the subpoenas in relation to the articulated legislative needs. In addition, it should explain why the subpoenaed information, as opposed to information available from other sources, is needed. Unless the House is required to make a showing along these lines, I would hold that enforcement of the subpoenas cannot be ordered. Because I find the terms of the Court’s remand inadequate, I must respectfully dissent.

 
 Nos. 19-715 and 19-760
In the Supreme Court of the United States
DONALD J. TRUMP, ET AL., PETITIONERS
v.
MAZARS USA, LLP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS
NOEL J. FRANCISCO Solicitor General Counsel of Record
JOSEPH H. HUNT Assistant Attorney General
JEFFREY B. WALL Deputy Solicitor General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
SOPAN JOSHI Assistant to the Solicitor General
MARK R. FREEMAN SCOTT R. MCINTOSH DENNIS FAN GERARD J. SINZDAK
Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
(Additional Caption Listed on Inside Cover)

DONALD J. TRUMP, ET AL., PETITIONERS v.
DEUTSCHE BANK AG, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

QUESTION PRESENTED
Whether Articles I and II of the United States Constitution allowed three committees of the House of Representatives to issue four subpoenas to third-party custodians for the personal financial records of the sitting President of the United States.
(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1 Statement ...................................................................................... 2 Summary of argument ................................................................. 7 Argument:
A. Congressional committees may not subpoena the President’s personal records unless the information is demonstrably critical to a clearly identified legitimate legislative purpose ..................... 10 1. Congress’s implied investigatory powers are subject to several limitations................................ 10 2. The President’s unique status requires special solicitude from Congress and the Judiciary ....... 13 3. Congress must satisfy a heightened showing when it directs its implied investigatory powers at the President ........................................ 17
B. The congressional subpoenas here do not satisfy the constitutional requirements ................................... 25 1. Mazars.................................................................... 26 2. Deutsche Bank and Capital One.......................... 28
C. Constitutional avoidance also counsels reversal ........ 31 Conclusion ................................................................................... 35

TABLE OF AUTHORITIES

Cases:
Bellis v. United States, 417 U.S. 85 (1974).......................... 24 Bowsher v. Synar, 478 U.S. 714 (1986)................................ 19 Buckley v. Valeo, 424 U.S. 1 (1976)...................................... 18 Cheney v. United States District Court,
542 U.S. 367 (2004)............................................ 15, 16, 24, 34 Child Labor Tax Case, 259 U.S. 20 (1922) .......................... 23 Clinton v. Jones, 520 U.S. 681 (1997) .............1, 14, 15, 16, 20

(III)

IV

Cases—Continued:

Page

Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975)........................................................ 12, 22
Ford v. United States, 273 U.S. 593 (1927) ......................... 24 Franklin v. Massachusetts, 505 U.S. 788 (1992).......... 15, 22 Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477 (2010) ........................................................................ 17, 19, 22 Gravel v. United States, 408 U.S. 606 (1972) ...................... 25 Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D. Cal. 1879) ............................................................... 23 Hutchinson v. Proxmire, 443 U.S. 111 (1979).................... 12 INS v. Chadha, 462 U.S. 919 (1983)................... 10, 17, 20, 33 Judicial Watch , Inc. v. United States Secret Service, 726 F.3d 208 (D.C. Cir. 2013) .............................. 25 Kilbourn v. Thompson, 103 U.S. 168 (1881) ....................... 12 Lindsey, In re, 158 F.3d 1263 (D.C. Cir.), cert. denied, 525 U.S. 996 (1998) ....................................... 17 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) .................................................................................... 10 McGrain v. Daugherty, 273 U.S. 135 (1927).............. passim Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867)......... 15 Morrison v. Olson, 487 U.S. 654 (1988)............................... 23 Nixon v. Administrator of General Services, 433 U.S. 425 (1977).............................................................. 21 Nixon v. Fitzgerald, 457 U.S. 731 (1982) ................... passim Powell v. McCormack, 395 U.S. 486 (1969)......................... 27 Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989) ............................................... 33 Quinn v. United States, 349 U.S. 155 (1955) .......... 11, 13, 26 Salazar v. Buono, 559 U.S. 700 (2010) ................................ 25

V

Cases—Continued:

Page

Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) ................................................. 23, 24, 28, 30
Tobin v. United States, 306 F.2d 270 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962) ............. 22, 33
United States v. Nixon, 418 U.S. 683 (1974)....................... 15 United States v. Rumely, 345 U.S. 41 (1953)............. passim
Watkins v. United States, 354 U.S. 178 (1957) .......... passim Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).............................................................. 19

Constitution and statute:
U.S. Const.: Art. I ........................................................................... 10, 13 § 1 ............................................................................... 10 § 2, Cl. 5 ................................................................ 10, 18 § 3: Cls. 5-6................................................................... 10 Cl. 6........................................................................ 18 § 4, Cl. 2 ...................................................................... 14 § 5: Cl. 1.................................................................. 14, 18 Cls. 1-4................................................................... 10 § 6, Cl. 1 ...................................................................... 16 Arrest Clause ....................................................... 16 Speech or Debate Clause .................................... 25 § 7: Cl. 2........................................................................ 19 Cls. 2-3................................................................... 14

VI

Constitution and statute—Continued:

Page

Art. II ..........................................................8, 10, 13, 14, 16 § 1 ............................................................................... 13 Cl. 1........................................................................ 22 Cl. 2........................................................................ 18 Cl. 3........................................................................ 18 Cl. 7........................................................................ 18 Cl. 8........................................................................ 18 §§ 2-3 ........................................................................... 14
Freedom of Information Act, 5 U.S.C. 552 ......................... 25

Miscellaneous:
A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (2000) .................................................................................... 16
165 Cong. Rec. H3481 (daily ed. May 8, 2019).................... 29 H.R. Rep. No. 40, 116th Cong., 1st Sess. (2019)................... 3 H.R. Res. 206, 116th Cong., 1st Sess. (2019) .................. 3, 29 H.R. Res. 507, 116th Cong., 1st Sess. (2019) .............. 4, 9, 31 Philip B. Kurland, Watergate and the Constitution
(1978) .................................................................................... 14 Letter from Laurence H. Silberman, Acting
Attorney General, to Hon. Howard W. Cannon, Chairman, Committee on Rules and Administration (Sept. 20, 1974), fas.org/irp/agency/doj/olc/ 092074.pdf ............................................................................ 27 2 Joseph Story, Commentaries on the Constitution of the United States (1833)................................................. 18 The Federalist (Jacob E. Cooke ed., 1961):
Alexander Hamilton: No. 70 .................................................................... 18, 33 No. 71 .......................................................................... 17 No. 73 .......................................................................... 19

VII

Miscellaneous—Continued:

Page

James Madison: No. 48 .......................................................................... 18 No. 51 ........................................................ 16, 18, 20, 24

In the Supreme Court of the United States
No. 19-715 DONALD J. TRUMP, ET AL., PETITIONERS
v. MAZARS USA, LLP, ET AL.
No. 19-760 DONALD J. TRUMP, ET AL., PETITIONERS
v. DEUTSCHE BANK AG, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS OF APPEALS FOR THE DISTRICT OF COLUMBIA AND SECOND CIRCUITS
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES
This case involves subpoenas issued by congressional committees to third-party custodians for the personal records of the sitting President of the United States. The United States has a substantial interest in safeguarding the prerogatives of the Office of the President. The United States has participated as amicus curiae in other cases that have presented related issues concerning the President’s amenability to suit or compulsory process, including in this Court, e.g., Clinton v.
(1)

2
Jones, 520 U.S. 681 (1997); Nixon v. Fitzgerald, 457 U.S. 731 (1982), and in these cases in the courts of appeals.
STATEMENT
1. a. On April 15, 2019, the House Committee on Oversight and Reform issued a subpoena to respondent Mazars USA, LLP, the personal accounting firm of President Donald J. Trump, seeking eight years’ worth of financial and accounting information about the President and his private business entities. 19-715 Pet. App. 2a-3a; see id. at 227a-240a (copy of subpoena). In an earlier letter to Mazars, the committee chair had written that the committee was investigating allegations that the President “changed the estimated value of his assets and liabilities on financial statements prepared by your company.” 19-5142 C.A. App. 91.
In an April 12, 2019 memorandum to the committee, the chair gave “notice of [his] intent to issue a subpoena to Mazars,” 19-5142 C.A. App. 104, and provided four reasons in support:
[1] to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, [2] to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, [3] to assess whether he is complying with the Emoluments Clauses of the Constitution, and [4] to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.
Id. at 107. The chair asserted that “[t]he Committee’s interest in these matters informs its review of multiple laws and legislative proposals under [its] jurisdiction,” but did not identify those laws or proposals. Ibid.

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b. On April 11, 2019, the House Committee on Financial Services and the Permanent Select Committee on Intelligence issued two identical subpoenas to respondent Deutsche Bank AG. See J.A. 226a. The Financial Services Committee also issued a subpoena to respondent Capital One Financial Corporation. See ibid. All three subpoenas seek detailed and extensive financial information about the President, his private business entities, and members of his family. See J.A. 264a-266a. “The time frame for which most of the documents are sought is July 19, 2016, to the present for the Capital One subpoena and January 1, 2010, to the present for the Deutsche Bank subpoenas, but there is no time limit for two categories of documents sought by all three subpoenas,” including “documents related to account openings, the names of those with interests in identified accounts, and financial ties between the named individuals and entities and any foreign individual, entity, or government.” J.A. 266a; see J.A. 128a-151a, 152a-184a (copies of subpoenas).
The Financial Services Committee stated that it issued the subpoenas as part of its efforts to investigate “the ‘implementation, effectiveness, and enforcement of anti-money laundering/counter-financing of terrorism laws and regulations’ and the ‘risks of money laundering and terrorist financing in the real estate market.’ ” 19A640 Resp. Br. 5 (quoting H.R. Rep. No. 40, 116th Cong., 1st Sess. 84-85 (2019)). According to that committee, those efforts were triggered by House Resolution 206, which states that the House “supports efforts to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system.” H.R. Res. 206, 116th Cong., 1st Sess. 5 (2019).

4
The Intelligence Committee Chair later issued a press release stating that the committee was investigating ties and possible “coordination between the Russian government” and the President and his campaign. See 19A640 Resp. Br. 9 (citation omitted). The chair stated that the “subpoena is ‘vital to fully identify the scope of th[e] threat’ of foreign financial leverage.” Id. at 10 (citation omitted).
c. On July 24, 2019, the House passed a resolution stating that it “ratifies and affirms all current and future investigations” and “subpoenas previously issued or to be issued in the future, by any standing or permanent select committee of the House,” related to “the President in his personal or official capacity,” “his immediate family, business entities, or organizations,” and other individuals (including any “current or former” governmental employee) and institutions (including “the White House”) related to the President. H.R. Res. 507, 116th Cong., 1st Sess. 2-3 (2019).
2. Petitioners—the President in his personal capacity and other individuals and entities whose financial information the subpoenas sought—filed these suits to prevent the third-party custodians from complying with the subpoenas, including (as relevant here) on the ground that the subpoenas violate the constitutional separation of powers. See J.A. 30a-49a (Mazars complaint); J.A. 109a-127a (Deutsche Bank complaint).
Both district courts rejected petitioners’ claims on the merits. See 19-715 Pet. App. 158a-212a; J.A. 187a222a. The court in Deutsche Bank denied petitioners’ motion for a preliminary injunction, J.A. 185a-186a, and the court in Mazars treated the parties’ briefs on a

5
preliminary-injunction motion as cross-motions for summary judgment, and entered judgment in favor of respondents, 19-715 Pet. App. 178a, 212a.
3. The courts of appeals affirmed. 19-715 Pet. App. 1a-157a; J.A. 223a-375a.
a. As relevant here, the court of appeals in Mazars recognized that a congressional committee may issue a legislative subpoena only if it falls within the House’s delegation of investigative power to the committee. See 19-715 Pet. App. 20a. The court further recognized that the committee’s investigation must concern a subject matter on which a “constitutional statute may be enacted”; seek only information that is “ ‘calculated to’ ‘materially aid’ the[] investigation[]”; and “ ‘neither usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights.’ ” Id. at 21a-22a (brackets and citations omitted). The court concluded that the subpoena satisfied those conditions, principally because the committee chair’s April 12 memorandum expressed an interest in whether the President had accurately reported his finances, and the House was considering legislation regarding financial disclosures. See id. at 30a-31a. The court “reject[ed] the suggestion” that the lawenforcement rationale set forth in that memorandum “spoils the Committee’s otherwise valid legislative inquiry.” Id. at 32a.
Judge Rao dissented. 19-715 Pet. App. 77a-157a. She stated that “Congress cannot undertake a legislative investigation of an impeachable official if the ‘gravamen’ of the investigation rests on ‘suspicions of criminality.’ ” Id. at 85a (citation omitted). Examining the four purposes set forth in the April 12 memorandum, Judge Rao found that “each of [them] target[s] the

6
President’s alleged wrongdoing and potential violations of statutes and the Constitution.” Id. at 126a.
The court of appeals denied rehearing en banc. 19-715 Pet. App. 213a-221a. Judges Henderson, Katsas, and Rao would have granted rehearing. Id. at 214a n.*. Judge Katsas explained that congressional subpoenas seeking the President’s personal records raise “exceptionally important questions regarding the separation of powers,” id. at 215a, and pose a “far greater” “threat to presidential autonomy and independence” than subpoenas issued in conjunction with judicial proceedings, which are overseen by “neutral judges applying” governing rules, id. at 216a-217a.
b. As relevant here, the court of appeals in Deutsche Bank recognized that legislative subpoenas issued by congressional committees may not “intru[de] into the authority of the other branches”; pursue “ ‘law enforcement’ ” goals; “ ‘extend to an area in which Congress is forbidden to legislate’ ”; or “ ‘inquire into private affairs unrelated to a valid legislative purpose.’ ” J.A. 267a-268a (citations omitted). Relying on House Resolution 206, the court summarized the interest of the committees in issuing their respective subpoenas as being the “enforcement of anti-money-laundering/counter-financing of terrorism laws, terrorist financing, the movement of illicit funds through the global financial system including the real estate market, the scope of the Russian government’s operations to influence the U.S. political process, and whether [the President] was vulnerable to foreign exploitation.” Id. at 284a. The court concluded that those interests were “related to a legislative purpose.” Ibid. Although the court recognized that the subpoenas were overly broad in both time and scope, see id. at

7
300a-305a, it found that most of the requested “information, including documents dating back to when accounts were opened, is reasonably related to an investigation about money laundering,” id. at 297a.
Judge Livingston dissented in relevant part. J.A. 323a-375a. She found no “clear reason why a congressional investigation aimed generally at closing regulatory loopholes in the banking system need focus on over a decade of financial information regarding this President, his family, and his business affairs.” J.A. 347a. And she did not find “the proffered rationale” of the committees “consistent with the granular detail that these subpoenas seek.” Ibid. Judge Livingston would have remanded for a fuller development of the record. See J.A. 368a-371a.
SUMMARY OF ARGUMENT
A. Congress’s implicit power to investigate generally is “justified solely as an adjunct to the legislative process.” Watkins v. United States, 354 U.S. 178, 197 (1957). A legislative subpoena must therefore further a legitimate legislative purpose; it cannot be issued for law enforcement or simply to expose wrongdoing. And when a congressional committee issues a subpoena, it must be authorized by a delegation from the full chamber that identifies the legislative purpose with sufficient particularity. Moreover, any information sought must be pertinent to the stated legislative purpose.
Those limitations should be even stricter when a committee aims its investigatory power at the President. “The President occupies a unique position in the constitutional scheme.” Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). The Constitution vests the entirety of the Executive Power in the President, and it entrusts him with vast and vital public responsibilities. This

8
Court has long understood that to enable the President to discharge those critical constitutional duties, Article II provides an immunity from any process that would risk impairing the independence of his office or interfering with the performance of its functions. That risk is particularly palpable when the President’s political adversaries control one or both chambers of Congress. For that reason, the Framers deliberately sought to insulate the President from congressional interference in particular.
A legislative subpoena must therefore satisfy heightened requirements when it seeks information from the President. At the threshold, the full chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legitimate legislative purpose. A congressional committee cannot evade those heightened requirements merely by directing the subpoenas to third-party custodians, for such agents generally assume the rights and privileges of their principal, as this Court has recognized in analogous contexts.
B. The subpoenas here do not satisfy those heightened standards. The four reasons offered in support of the Mazars subpoena betray an impermissible lawenforcement objective, and the boilerplate statement that the subpoena furthers “multiple laws and legislative proposals” is far too vague to enable, much less withstand, meaningful scrutiny of its legitimacy. Indeed, the stated reasons related to conflicts of interest

9
and emoluments bear no evident connection to valid legislation, given Congress’s limited ability to regulate the President. And in any event, the committee has not explained why the highly detailed information the subpoena seeks is demonstrably critical to any of its stated legislative purposes.
Likewise, the Deutsche Bank and Capital One subpoenas seek information that is not demonstrably critical to any legitimate legislative purpose. One committee’s investigation was into closing loopholes in moneylaundering laws; the other’s into foreign interference in elections. That two committees issued carbon-copy subpoenas for markedly divergent purposes strongly suggests that neither is the true purpose. Moreover, the resolution on which the committees rely does not even mention foreign interference in elections, and there is no reason why investigating potential changes to moneylaundering laws should focus on the President in particular.
C. Alternatively, this Court should invalidate the subpoenas on constitutional-avoidance grounds. The authorizing resolution’s blank check for all “current and future” subpoenas by any committee issued “directly or indirectly” to the President for any reason whatsoever, H.R. Res. 507, at 2-3, makes plain that the House has not “demonstrated its full awareness of what is at stake,” United States v. Rumely, 345 U.S. 41, 46 (1953). Moreover, the full House never clearly adopted or endorsed the various reasons given by the committees for issuing the subpoenas. As in Rumely, this Court could invalidate the subpoenas on those threshold grounds and thereby avoid the need to opine on the merits of this interbranch dispute.

10
ARGUMENT
These cases involve the first attempts by congressional committees to demand the personal records of a sitting President of the United States. That use of their limited and implied investigatory powers poses a serious risk of harassing the President and distracting him from his constitutional duties. Article II and the separation of powers protect the Office of the President from such interference. Congressional committees that subpoena the President’s information must therefore make a heightened showing, both of a legitimate legislative purpose for the subpoenas and of the need for the information sought. Because the committees here did not make those showings, the subpoenas violate the Constitution.
A. Congressional Committees May Not Subpoena The President’s Personal Records Unless The Information Is Demonstrably Critical To A Clearly Identified Legitimate Legislative Purpose
1. Congress’s implied investigatory powers are subject to several limitations
“This government is acknowledged by all to be one of enumerated powers.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819). The enumerated “legislative Powers” granted by Article I to Congress do not include any express authority to conduct investigations or issue compulsory process. U.S. Const. Art. I, § 1. The enumerated powers that a single House of Congress may exercise on its own are even more circumscribed, generally limited to governing its own Members and internal proceedings. Art. I, § 2, Cl. 5, § 3, Cls. 5-6, and § 5, Cls. 1-4; see INS v. Chadha, 462 U.S. 919, 955 (1983). Nevertheless, although “neither house is invested with

11
‘general’ power to inquire into private affairs and compel disclosures,” this Court has held that each has a “limited power of inquiry” as part of its “auxiliary powers as are necessary and appropriate to make the express powers effective.” McGrain v. Daugherty, 273 U.S. 135, 173-174 (1927); see Watkins v. United States, 354 U.S. 178, 197 (1957) (observing that congressional investigations are “justified solely as an adjunct to the legislative process”). The Court has explained that the implied “power to secure needed information” is “incidental to the legislative function,” and “was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution.” McGrain, 273 U.S. at 161; see id. at 161-167 (describing the history of legislative subpoenas).
That implied power is, however, “subject to recognized limitations.” Quinn v. United States, 349 U.S. 155, 161 (1955). Most important, a congressional subpoena may be issued only “in furtherance of [] a legitimate task of the Congress.” Watkins, 354 U.S. at 187. Accordingly, a congressional subpoena may not be issued for the purpose of “law enforcement,” as “those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn, 349 U.S. at 161.
Legislation is of course a legitimate congressional task. But a congressional subpoena may not extend to topics “in respect to which no valid legislation could be enacted.” Watkins, 354 U.S. at 194 (citation omitted); see Quinn, 349 U.S. at 161 (congressional inquiry into “an area in which Congress is forbidden to legislate” is invalid). Similarly, although Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government,” Watkins, 354 U.S. at 200 n.33, that informing function must be

12
tethered to a valid legislative function to support a legislative subpoena. See id. at 200; Hutchinson v. Proxmire, 443 U.S. 111, 133 (1979) (explaining that “the duty of Members to tell the public about their activities * * * is not a part of the legislative function”); see also Kilbourn v. Thompson, 103 U.S. 168, 195 (1881) (rejecting subpoena that was “simply a fruitless investigation into the personal affairs of individuals”). There is, in short, “no congressional power to expose for the sake of exposure.” Watkins, 354 U.S. at 200.
Because investigations often are conducted by congressional committees “serving as the representatives of the parent assembly,” Watkins, 354 U.S. at 200, a committee’s “right to exact testimony and to call for the production of documents must be found in th[e] language” of “the controlling charter of the committee’s powers”—generally a resolution passed by the full chamber, United States v. Rumely, 345 U.S. 41, 44 (1953); see Watkins, 354 U.S. at 201, 206. Critically, an authorizing resolution must “spell out * * * with sufficient particularity” the legitimate legislative purpose behind any investigative subpoena. Watkins, 354 U.S. at 201. Although the subjective “motives alleged to have prompted” a congressional subpoena are not relevant, Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508-509 (1975) (emphasis added), the objective purpose is, McGrain, 273 U.S. at 178 (inquiring whether “the real object” of a legislative subpoena was “legitimate”).
Even when a committee issues a subpoena to further a properly identified and legitimate legislative purpose, the information sought must be “pertinent” to that purpose. McGrain, 273 U.S. at 176. Congressional subpoe-

13
nas are subject to “a jurisdictional concept of pertinency drawn from the nature of a congressional committee’s source of authority.” Watkins, 354 U.S. at 206. For that limit “[t]o be meaningful,” Congress must provide “the connective reasoning whereby the precise questions asked relate to” the legitimate legislative purpose. Id. at 215. Just as congressional subpoenas may not “be used to inquire into private affairs unrelated to a valid legislative purpose,” Quinn, 349 U.S. at 161, they may not “radiate outward infinitely to any topic thought to be related in some way” to that purpose, Watkins, 354 U.S. at 204. Of particular concern is when congressional “investigators turn their attention to the past to collect minutiae on remote topics.” Ibid. Those circumstances could indicate that the information sought in the subpoena does not “relate to” a legitimate legislative purpose, id. at 215, and may even suggest the impermissible object of exposing illegality for its own sake.
2. The President’s unique status requires special
solicitude from Congress and the Judiciary
Article I’s limits on the reach of Congress’s implied investigatory powers are supplemented by Article II’s protections against incursions that threaten the President’s independence and ability to carry out his constitutional duties.
a. “The President occupies a unique position in the constitutional scheme.” Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). The Constitution vests the legislative power in a plural Congress and the judicial power in a plural Judiciary, but the entirety of the executive power in a single President. U.S. Const. Art. II, § 1. The Constitution entrusts the President with vast and vital public responsibilities, including taking care that the laws are faithfully executed; commanding the Armed Forces;

14
nominating, appointing, and removing officers; making treaties; recommending, signing, and vetoing bills; sending and receiving ambassadors; and granting pardons and reprieves. Art. I, § 7, Cls. 2-3 and Art. II, §§ 2-3. The Constitution vests the President with unremitting official responsibilities; by contrast, Congress is required to assemble only “once in every Year,” Art. I, § 4, Cl. 2, may “adjourn from day to day,” Art. I, § 5, Cl. 1, and retains “a Quorum to do Business” even in the absence of up to half its membership, ibid. And the President must speak and act not just for a single district or State, but for all the people of the United States. The President is, in short, the “sole indispensable man in government.” Philip B. Kurland, Watergate and the Constitution 135 (1978).
The Founders understood Article II to protect the “independent functioning” of the President’s unique office, “free from risk of control, interference, or intimidation by other branches.” Fitzgerald, 457 U.S. at 760761 (Burger, C.J., concurring). For example, John Adams, Thomas Jefferson, and Joseph Story all maintained that the President was immune from any judicial process whatsoever. See id. at 750 n.31 (majority opinion). Although this Court has not gone that far, it has accepted “the essence of the constitutional principle,” Clinton v. Jones, 520 U.S. 681, 714 (1997) (Breyer, J., concurring in the judgment), and has relied on those views in concluding that the President enjoys a constitutional immunity from actions of coordinate Branches that would threaten to undermine his independence or interfere with his functions, Fitzgerald, 457 U.S. at 750 n.31. The Court has described that immunity as “a func-

15
tionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Id. at 749.
For example, the Court has observed that “in no case would a court be required to proceed against the president as against an ordinary individual.” Cheney v. United States District Court, 542 U.S. 367, 382 (2004) (brackets, citation, and ellipsis omitted). It has held that a court may not enjoin the President in “the performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1867); see Franklin v. Massachusetts, 505 U.S. 788, 800-801 (1992) (refusing to infer that an ambiguous or silent statute regulates the President). It also has recognized the President’s “absolute immunity from damages liability predicated on his official acts.” Fitzgerald, 457 U.S. at 749. It has recognized a qualified presidential privilege protecting the confidentiality of presidential communications, holding that a sitting President may be required to respond to a federal criminal trial subpoena for such communications only where there is a “demonstrated, specific need” for the requested records. United States v. Nixon, 418 U.S. 683, 713 (1974). And it has recognized that although a sitting President is not absolutely immune from a civil suit in federal court for purely private conduct, “[t]he high respect that is owed to the office of the Chief Executive * * * should inform the conduct of the entire proceeding, including the timing and scope of discovery.” Clinton, 520 U.S. at 707; see Cheney, 542 U.S. at 385-386 (similar). Those immunities do “not place the President ‘above the law.’ ” Fitzgerald, 457 U.S. at 758. Rather, the law itself accounts for “the paramount necessity of protecting the Executive Branch”

16
from acts “that might distract it from the energetic performance of its constitutional duties.” Cheney, 542 U.S. at 382.
b. The President enjoys those immunities even with respect to his purely personal conduct and papers. As the Framers understood, “[t]he interest of the man” is often “connected with the constitutional rights of the place.” The Federalist No. 51, at 349 (James Madison) (Jacob E. Cooke ed., 1961). Acts taken against an individual as a private person can impair that individual’s exercise of a public office. For example, the Arrest Clause protects legislators from civil arrests for private conduct while attending and traveling to and from sessions of Congress. U.S. Const. Art. I, § 6, Cl. 1. Article II similarly protects a sitting President from arrest, indictment, and criminal prosecution for private conduct. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 247-248 (2000). And this Court has recognized that “the Executive’s ‘constitutional responsibilities and status are factors counseling judicial deference and restraint’ in the conduct of litigation against it,” Cheney, 542 U.S. at 385 (brackets and citation omitted), including in civil suits against the President in his personal capacity, Clinton, 520 U.S. at 707.
Demands for a President’s personal records similarly risk interfering with the President’s official functions. A subpoena for personal records can be deployed to harass a President in response to his official policies, or have the effect of subjecting a President to unwarranted burdens, diverting his time, energy, and attention from his public duties. That is especially true “[b]ecause the Presidency is tied so tightly to the persona of its occupant,” making “the line between official

17
and personal * * * both elusive and difficult to discern.” In re Lindsey, 158 F.3d 1263, 1286 (D.C. Cir.) (per curiam) (Tatel, J., concurring in part and dissenting in part), cert. denied, 525 U.S. 996 (1998).
3. Congress must satisfy a heightened showing when
it directs its implied investigatory powers at the
President
In contrast to legislative demands for information from private persons or subordinate governmental officials, no history or tradition supports legislative subpoenas aimed at the President’s personal records. Cf. McGrain, 273 U.S. at 161-167. Even assuming Congress’s implied investigatory power extends to that domain, but cf. Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 505 (2010) (observing that “the lack of historical precedent” for an action intruding on the President’s prerogatives is a “telling indication” of unconstitutionality) (citation omitted), the constitutional concerns described above make it all the more important to enforce strict substantive limits on that power.
a. The Founders predicted that Members of Congress would “often appear disposed to exert an imperious controul over the other departments; and as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.” The Federalist No. 71, at 484 (Alexander Hamilton). Indeed, the Framers were convinced “that the powers conferred on Congress were the powers to be most carefully circumscribed,” Chadha, 462 U.S. at 947, and their writings “are replete with expressions of fear that the Legislative Branch * * * will aggrandize itself at the expense of the other two

18
branches,” Buckley v. Valeo, 424 U.S. 1, 129 (1976) (per curiam). See The Federalist No. 48, at 333 (James Madison) (“The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.”); 2 Joseph Story, Commentaries on the Constitution of the United States § 532, at 15 (1833).
The Framers thus took special effort—beyond the structural separation of powers—to “fortif [y]” the executive, and to constrain the legislature, relative to each other. The Federalist No. 51, at 350. For example, they divided the legislature into two Houses with “different modes of election, and different principles of action,” ibid.; made each House a plural body to “obstruct” “promptitude of decision” and to “promote deliberation and circumspection,” The Federalist No. 70, at 475 (Alexander Hamilton); imposed quorum requirements before either chamber could act, U.S. Const. Art. I, § 5, Cl. 1; and required bicameralism to enact legislation, Art. I, § 7, Cl. 2.
Conversely, the Framers created a single President to ensure a “vigorous executive,” not a “feeble” one. The Federalist No. 70, at 471. They also ensured the President’s independence from Congress by, for example, forbidding Members of Congress from serving as presidential Electors, guaranteeing the President a salary that Congress could neither increase nor diminish during his term, specifying the presidential oath in the Constitution rather than allowing Congress to enact it by law, and prescribing procedures and standards for impeachment and removal. U.S. Const. Art. I, § 2, Cl. 5 and § 3, Cl. 6, and Art. II, § 1, Cls. 2, 3, 7, and 8. They also granted the President a structural protection from congressional encroachments they could not foresee:

19
the veto power, Art. I, § 7, Cl. 2, which “serves as a shield to the executive” and provides “a constitutional and effectual power of self defence,” The Federalist No. 73, at 495 (Alexander Hamilton).
Those and other aspects of presidential independence and autonomy are threatened when Congress uses its implied investigative powers to make onerous demands of the President. Such demands pose the threat that the Legislative Branch may “aggrandize itself at the expense” of the Executive by usurping law-enforcement functions, Bowsher v. Synar, 478 U.S. 714, 727 (1986) (citation omitted), or may “impair [the Executive] in the performance of its constitutional duties” through intrusive or burdensome inquiries, Free Enterprise Fund, 561 U.S. at 500 (citation omitted). See Watkins, 354 U.S. at 187, 200 (legislators might improperly use investigative powers for “personal aggrandizement,” to “ ‘punish’ those investigated,” or “to expose for the sake of exposure”).
Those are not idle concerns. The President faces a unique risk of harassment in response to his official policies or actions. “In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J., concurring). Because the President “must make the most sensitive and far-reaching decisions” on “matters likely to ‘arouse the most intense feelings,’ ” he is “an easily identifiable target” for harassment. Fitzgerald, 457 U.S. at 752-753 (citation omitted).
Likewise, the President “occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his un-

20
divided time and attention to his public duties.” Clinton, 520 U.S. at 697. “Because of the singular importance of the President’s duties, diversion of his energies * * * would raise unique risks to the effective functioning of government.” Fitzgerald, 457 U.S. at 751. It takes little imagination to foresee that subpoenas seeking sensitive personal information would divert the President’s attention from his constitutional duties.
The risks of such harassment and distraction are particularly acute when Congress does the investigating. The President may be a tantalizing target to the “opposite and rival interests” of Congress, The Federalist No. 51, at 349, when his political adversaries control one or both chambers. The risk that they will conduct an investigation “solely for the personal aggrandizement of the investigators or to ‘punish’ ” the President is especially palpable in those circumstances. Watkins, 354 U.S. at 187. Investigations in judicial proceedings at least are confined to discrete controversies and subject to various protective measures imposed by neutral rules and judges. Congressional investigators, by contrast, may issue successive subpoenas in waves, making far-reaching demands for sensitive personal information—college transcripts, job applications, health records, birth certificates, private emails, cellphone logs, and the like—that harry the President and distract his attention.
Those risks are greater still when a single House of Congress or even, as is typical, a single committee wields the investigative power. Cf. Chadha, 462 U.S. at 951, 958 n.23 (observing that “the bicameral requirement” serves “essential constitutional functions,” including “opportunity for deliberation and debate”).

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Consider the contrast with the inspection of presidential records authorized in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), where the Court emphasized that the President was no longer in office; the materials would remain in the Executive Branch; an Executive Branch official would conduct the inspection; an Act of Congress, signed into law by the President, authorized the inspection; and the statute contained several safeguards against improper disclosure of personal materials. See id. at 439-455. An investigation by a single House committee against the sitting President to obtain sensitive personal information with no enforceable limitations on disclosure lacks all of those protective features, and thus amplifies the risks of harassment and distraction.
b. Enforcing the limits on Congress’s implied investigatory powers is thus all the more important when congressional investigators target the President. At the threshold, it is particularly important for the chamber issuing the subpoena to have “demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits.” Rumely, 345 U.S. at 46. That chamber also should satisfy heightened standards in this context.
First, the chamber issuing a legislative subpoena should offer a clear and specific statement setting forth with particularity the legislative purpose behind any investigation of the President and his information. A heightened standard of clarity, specificity, and particularity is appropriate in light of Congress’s limited ability to regulate the President. The President is not like private citizens or federal agencies, which are subject to myriad forms of regulation within Congress’s legislative sphere. See, e.g., McGrain, 273 U.S. at 178;

22
Eastland, 421 U.S. at 506. Rather, the Constitution establishes the President’s office and vests “[t]he executive Power” directly in him, U.S. Const. Art. II, § 1, Cl. 1, and Congress may not use even its express legislative powers—let alone its implied investigative powers—to defeat or curtail the President’s constitutional prerogatives. Any legislation regulating the President thus would bear the significant risk that it would unconstitutionally “impair [the President] in the performance of [his] constitutional duties.” Free Enterprise Fund, 561 U.S. at 500 (citation omitted); cf. Franklin, 505 U.S. at 800-801 (requiring an “express statement” “before assuming [Congress] intended” to regulate the President, “[o]ut of respect for the separation of powers and the unique constitutional position of the President”). Accordingly, it would be inappropriate for courts—or Congress’s lawyers in litigation—to hypothesize potential legitimate legislative purposes in an effort to supply a “retroactive rationalization.” Watkins, 354 U.S. at 204; see Tobin v. United States, 306 F.2d 270, 274 n.7 (D.C. Cir.), cert. denied, 371 U.S. 902 (1962).
Second, the stated legislative purpose should be subject to heightened scrutiny of its legitimacy. As explained above, the President is a particularly attractive target for his political foes, and congressional investigators may face irresistible temptation to improperly “turn their attention to the past to collect minutiae on remote topics,” Watkins, 354 U.S. at 204, on the pretext of investigating hypothetical future legislation. Although courts should not speculate about legislators’ subjective motives, they must ascertain the subpoena’s “real object” in light of objective circumstances, McGrain, 273 U.S. at 178, without “shut[ting] [thei]r minds” to what “[a]ll others can see and understand,”

23
Child Labor Tax Case, 259 U.S. 20, 37 (1922) (Taft, C.J.); see Rumely, 345 U.S. at 43-44 (invoking that principle in the legislative-subpoena context). As Justice Field, riding circuit, observed in evaluating an analogous claim of legislative pretext, “[w]hen we take our seats on the bench we are not struck with blindness, and forbidden to know as judges what we see as men.” Ho Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal. 1879).
That sort of searching scrutiny is all the more critical when a legislative subpoena targets the President. When a House of Congress invokes its implied investigatory powers with respect to governmental agencies or private citizens, courts often rely on “the particular subject-matter” of a congressional inquiry to “presum[e]” that the “real object” of the inquiry is valid legislation. McGrain, 273 U.S. at 178. But that course is inappropriate when congressional investigators take aim at the President, given Congress’s limited power to regulate the President and his attractiveness as a target of harassment. If anything, those circumstances would support the opposite presumption. At a minimum, however, there should be no presumption either way. Cf. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (observing that when the “political branches are * * * in disagreement, neither can be presumed correct”).
Third, any information sought in a congressional subpoena directed at the President’s information must be not just reasonably related, but “demonstrably critical,” to the asserted legislative purpose. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc).

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That heightened standard, which the D.C. Circuit applied to a legislative subpoena seeking information protected by executive privilege, see ibid., is appropriate because the President’s personal information, like privileged information, should be subject to congressional process only as a last resort. At a minimum, therefore, congressional investigators should exhaust other potential sources before demanding the President’s personal information. Cf. Cheney, 542 U.S. at 389-390. Even when a committee demands information from private parties, each “particular inquiry [must be] justified by a specific legislative need.” Watkins, 354 U.S. at 205. When a congressional inquiry reaches the President, the risk of its having “radiate[d] outward infinitely to any topic thought to be related in some way” to a legislative need is all the more likely. Id. at 204. The President’s “provision for defence” must “be made commensurate to the danger of attack.” The Federalist No. 51, at 349. A heightened standard of pertinence is thus imperative.
c. Congressional investigators cannot avoid those heightened requirements simply by directing subpoenas to the President’s agents, rather than to the President himself. “The general rule of the law is, that what one does through another’s agency is to be regarded as done by himself.” Ford v. United States, 273 U.S. 593, 623 (1927) (citation omitted). A person who holds records “in a representative capacity as custodian” thus usually “ ‘assume[s] the rights, duties and privileges’ ” of his principal with respect to those records. Bellis v. United States, 417 U.S. 85, 89-90 (1974) (citation omitted). Indeed, this Court has held that “a Member [of Congress] and his aide are to be ‘treated as one’ ” for purposes of determining whether a grand jury subpoena

25
directed to a congressional aide violates the Speech or Debate Clause. Gravel v. United States, 408 U.S. 606, 616 (1972) (citation omitted). So too, the D.C. Circuit has explained that interpreting the Freedom of Information Act, 5 U.S.C. 552, to cover requests for records of visitors to the White House would raise “serious separation-ofpowers concerns,” irrespective of whether the requester seeks the records from the President himself or attempts an “end run[]” by directing the request to the federal agency that is the custodian of the records. Judicial Watch, Inc. v. United States Secret Service, 726 F.3d 208, 216, 225 (2013).
The same reasoning applies here. The risks that subpoenas could harass the President and divert his attention from his official duties are just as real when the subpoenas are directed to the President’s agents as when they are directed to the President himself. That is especially so when, as here, the President necessarily must rely on expert third parties to oversee, manage, and report on his financial holdings. Indeed, even if he were the personal recipient of the subpoenas, he would not personally compile the requested documents; instead, he would rely on third-party agents like the ones here. As a practical matter, therefore, the subpoenas are indistinguishable from ones directed to the President, and should be treated as such for separation-ofpowers purposes. “The Constitution deals with substance, not shadows.” Salazar v. Buono, 559 U.S. 700, 723 (2010) (Roberts, C.J., concurring) (citation omitted).
B. The Congressional Subpoenas Here Do Not Satisfy The
Constitutional Requirements
The four subpoenas here do not satisfy the standards set forth above, because neither the House nor the com-

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mittees clearly identified a specific legitimate legislative purpose behind each subpoena or clearly explained how the information sought in each subpoena was demonstrably critical to those respective purposes.
1. Mazars
The Oversight Committee Chair’s April 12, 2019 memorandum set forth four putative legislative purposes behind the Mazars subpoena. 19-5142 C.A. App. 104-107. None is adequate. Most important, all of them betray a law-enforcement purpose, which is flatly impermissible. Quinn, 349 U.S. at 161. Indeed, the very first reason is “to investigate whether the President may have engaged in illegal conduct before and during his tenure in office.” 19-5142 C.A. App. 107. The other reasons likewise demonstrate that the subpoena’s real object was law enforcement, not legislation: “to determine whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions”; “to assess whether [the President] is complying with the Emoluments Clauses of the Constitution”; and “to review whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities.” Ibid. The memorandum also confirms that the committee’s investigation arose out of allegations that the President fraudulently “altered the estimated value of his assets and liabilities on financial statements” long before he was a Presidential candidate. Id. at 104. Those circumstances provide “strong reason to doubt,” Watkins, 354 U.S. at 213, that the subpoena’s “real object” was legislation, McGrain, 273 U.S. at 178.
The memorandum’s conclusory statement that “[t]he Committee’s interest in these matters informs its review of multiple laws and legislative proposals,” 19-5142

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C.A. App. 107, is insufficient to satisfy the requirement of a clearly stated and particular legitimate legislative purpose. An “express avowal” of a precise legislative purpose may not always be required, McGrain, 273 U.S. at 178; but when a subpoena seeks such detailed information about the President’s past conduct, a boilerplate reference to “multiple laws and legislative proposals” is far too vague to enable any assessment of whether the subpoena is sufficiently “related to, and in furtherance of, a legitimate task of the Congress,” Watkins, 354 U.S. at 187.
Even apart from the obvious law-enforcement objectives, none of the stated reasons for the subpoena is sufficiently related to legitimate legislation. The declared interest in the President’s potential “conflicts of interest,” 19-5142 C.A. App. 107, bears no evident connection to any legitimate legislation; after all, Congress cannot impose qualifications on the Presidency beyond those set forth in the Constitution, so it could not legislate to disable persons with conflicts of interest from serving as President. See Letter from Laurence H. Silberman, Acting Attorney General, to Hon. Howard W. Cannon, Chairman, Committee on Rules and Administration (Sept. 20, 1974); cf. Powell v. McCormack, 395 U.S. 486, 522 (1969). Likewise for the stated interest in the President’s “compl[iance] with the Emoluments Clauses of the Constitution.” 19-5142 C.A. App. 107. Although Congress may consent to otherwise-prohibited foreign emoluments, the memorandum does not suggest that the committee is investigating the President with a view to that goal. To the contrary, the committee’s stated interest in determining whether the President “may have engaged in illegal conduct,” ibid., belies any such

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object. And at all events, the committee never explained how the information sought in the subpoena would be “demonstrably critical” to any legislation concerning conflicts or emoluments. Senate Select Committee, 498 F.2d at 731.
Nor does it matter whether the committee’s interest in “accurate[] report[ing]” of the President’s finances could in theory result in valid legislation amending the financial-disclosure laws. 19-5142 C.A. App. 107; see 19-715 Pet. App. 59a-62a. The committee has not explained why detailed information about the President’s personal finances, including for several years before he became a presidential candidate, would be relevant, much less “demonstrably critical,” to any investigation related to such hypothetical legislation. Senate Select Committee, 498 F.2d at 731. Legislative judgments “normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events.” Id. at 732; see Watkins, 354 U.S. at 204. The Mazars subpoena on its face seeks the latter, suggesting that its “real object” is to expose personal wrongdoing, not amend the disclosure laws. McGrain, 273 U.S. at 178; cf. Rumely, 345 U.S. at 44 (courts must not be “blind” to what “all others can see and understand”) (brackets and citation omitted).
2. Deutsche Bank and Capital One
In concluding that the Financial Services and Intelligence Committees’ subpoenas served a valid legislative purpose, the court of appeals relied on House Resolution 206, which states that the House “supports efforts to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s finan-

29
cial system.” J.A. 280a (citation omitted). Although legislation designed to close such regulatory loopholes is undoubtedly within Congress’s constitutional competence, House Resolution 206 does not connect those general matters to the President’s personal finances in particular. See H.R. Res. 206, at 1-5.
Indeed, there is no discernible reason why a congressional investigation into the general problem of money laundering should focus on the President in particular. Countless persons have engaged in the sorts of financial transactions that could implicate existing statutory or regulatory loopholes. A bona fide legislative inquiry into the subjects of “corruption, terrorism, and money laundering,” H.R. Res. 206, at 5, would cast a wide net rather than employ a harpoon. And to the extent the Intelligence Committee Chair expressed concerns with foreign interference in the U.S. political process, see 165 Cong. Rec. H3481 (daily ed. May 8, 2019), House Resolution 206 does not appear to encompass or adopt that purpose at all, much less as a basis to issue the subpoenas here. It bears mention that the two committees issued identical subpoenas to Deutsche Bank—one purportedly to investigate foreign interference in our elections; the other purportedly to investigate moneylaundering. As with the nearly identical subpoenas to Mazars issued by the Oversight Committee and the New York District Attorney, that carbon-copy subpoenas are claimed to serve two markedly divergent purposes strongly suggests that neither is the real object.
Providing an even “strong[er] reason to doubt” the subpoenas’ stated object, Watkins 354 U.S. at 213, is the sweeping breadth of the information demanded. As with the Mazars subpoena, the Deutsche Bank and Cap-

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ital One subpoenas seek “minutiae” about the President’s personal finances, id. at 204, in an apparent attempt to create a “precise reconstruction of past events,” Senate Select Committee, 498 F.2d at 732. The Deutsche Bank subpoenas request a universe of financial documents that spans a decade, from 2010 to present, relating to the President, members of his family, and his private business entities. See J.A. 128a-140a. The Capital One subpoena is somewhat narrower in its temporal reach, but it too seeks a wide range of financial documents regarding the President and his businesses over that period. See J.A. 152a-158a. Together, those documents encompass a constellation of transactions that would permit the committees to reconstruct in detail the President’s financial history with those institutions— including fund transfers, deposits, withdrawals, investments, loans, mortgages, and lines of credits.
Congressional investigators may not seek such details merely because they might be “thought to be related in some way” to a legislative purpose. Watkins, 354 U.S. at 204. Yet the committees provided no explanation why that trove of personal information is even reasonably related—much less “demonstrably critical,” Senate Select Committee, 498 F.2d at 731—to the antimoney-laundering purposes set forth in House Resolution 206. Indeed, the July 19, 2016, starting date for the Capital One subpoena—the precise date on which the President became the Republican Party nominee—has no evident connection to money laundering whatsoever. See Watkins, 354 U.S. at 204 (“Remoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action.”).

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To be sure, congressional committees ordinarily have considerable latitude about which private transactions and events to examine. But committees investigating far-reaching public problems, such as money laundering, do not properly exercise that discretion by making the President the primary target of their inquiries. Even if the committees believed that the President may have engaged in transactions that implicate the regulatory loopholes discussed in House Resolution 206, the House has not “assay[ed] the relative necessity” of seeking records from the President rather than from someone—anyone—else. Watkins, 354 U.S. at 206. Likewise, although an interest in foreign influence on federal elections may have a connection to recent political candidates for federal office, the committees have not explained why the President’s personal finances should be the primary target to examine in that respect. Instead, the committees seemed deliberately to target the President “as a useful case study.” 19-1540 C.A. App. 133. That is precisely the sort of danger that constitutional separation-of-powers principles are intended to avoid.
C. Constitutional Avoidance Also Counsels Reversal
Alternatively, this Court could avoid opining on the limits of Congress’s implied investigatory powers with respect to the President, and instead invalidate the subpoenas on the independent ground that the full House has not authorized them with the requisite clarity and particularity. House Resolution 507 provided a blanket authorization not only for these subpoenas, but for all “current and future” subpoenas by any committee issued “directly or indirectly” to the President “in his personal or official capacity,” without regard to the purpose or scope of the subpoenas. H.R. Res. 507, at 2-3. Even

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assuming that retroactive authorization suffices, but cf. Watkins, 354 U.S. at 204 (disapproving “retroactive rationalization”), the House’s blessing of all existing and future investigations into the President, for whatever purpose, calls into question whether that chamber has truly “demonstrated its full awareness” of the serious constitutional issues implicated by that blank-check approach. Rumely, 345 U.S. at 46. Indeed, the House’s indiscriminate approach renders the “excessively broad” resolution too “vague” and “nebulous” to permit meaningful judicial review of these (or any other) subpoenas issued under its auspices. Watkins, 354 U.S. at 201, 205; see Rumely, 345 U.S. at 46.
Compounding the resolution’s vagueness is the failure of the full House to set forth in clear terms a legitimate legislative purpose for each of the subpoenas and how each piece of information sought in the subpoenas is demonstrably critical to achieving those purposes. The attempts to satisfy those requirements were undertaken solely by the respective committee chairs in statements of various formality, ranging from a memorandum on committee letterhead to a press release. As explained above, those attempts are insufficient to satisfy the constitutional requirements with respect to the subpoenas here. Regardless, the full House’s failure to expressly validate and adopt as its own those statements by the respective committee chairs is sufficient to render the subpoenas invalid. See Rumely, 345 U.S. at 46. “A measure of added care on the part of the House” in this regard “is a small price to pay if it serves to uphold the principles of limited, constitutional government.” Watkins, 354 U.S. at 215-216.
The court of appeals in Mazars thought the full House’s validation unnecessary because that “deal[s]

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exclusively with the allocation of authority within the legislative branch,” and thus does not “ ‘alter the balance between’ the two political branches.” 19-715 Pet. App. 68a-69a (citation omitted). But it obviously alters the interbranch balance when a single Member exercises the full House’s power without first convincing 217 colleagues to agree; a full House vote ensures adequate deliberation and is part of the system of checks and balances. Cf. Chadha, 462 U.S. at 958 & n.23; The Federalist No. 70, at 475 (explaining that “deliberation and circumspection” in a plural legislature “serve to check excesses”). As this Court observed in Watkins, allowing a single committee or committee chair to wield the House’s extraordinary investigatory power “insulates the House” from accountability and creates “a wide gulf between the responsibility for the use of investigative power and the actual exercise of that power.” 354 U.S. at 205. The Court recognized such accountability as “an especially vital consideration in assuring respect for constitutional liberties.” Ibid. It is no less vital in assuring respect for constitutional separation of powers.
This Court and other courts have invalidated congressional subpoenas on similar threshold grounds to avoid opining on the constitutional limits of Congress’s implied investigatory authority. E.g., Rumely, 345 U.S. at 45-46; Tobin, 306 F.2d at 275-277. Such constitutional avoidance is especially appropriate in disputes between Congress and the President. See Public Citizen v. United States Department of Justice, 491 U.S. 440, 466 (1989) (“Our reluctance to decide constitutional issues is especially great where * * * they concern the relative powers of coordinate branches of govern-

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ment.”). Because “ ‘constitutional confrontation[s] between the two branches’ should be avoided whenever possible,” courts should consider “the choices available” and “explore other avenues” before ruling on such a confrontation. Cheney, 542 U.S. at 389-390 (citation omitted).
For example, Rumely affirmed the reversal of a conviction for refusing to comply with a congressional subpoena by construing language in the authorizing resolution narrowly, so that the requested information was not pertinent to the thus-narrowed legislative purpose. See 345 U.S. at 47-48. The Court forthrightly acknowledged its “strained” reading of the language, id. at 47, but justified that approach because “[g]rave constitutional questions are matters properly to be decided by this Court but only when they inescapably come before us for adjudication,” id. at 48. “Until then,” the Court explained, “it is our duty to abstain from marking the boundaries of congressional power.” Ibid.
As in Rumely, the Court could refuse to enforce the subpoenas here on the threshold grounds set forth above. That would render it unnecessary to opine on the merits of a difficult and sensitive interbranch conflict. Rumely explained that when such conflicts arise, “[e]xperience admonishes us to tread warily in this domain” and “strongly counsel[s] abstention from adjudication unless no choice is left.” 345 U.S. at 46. As in Rumely, “[c]hoice is left.” Id. at 47.

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CONCLUSION
The judgments of the courts of appeals should be reversed.
Respectfully submitted.

FEBRUARY 2020

NOEL J. FRANCISCO Solicitor General
JOSEPH H. HUNT Assistant Attorney General
JEFFREY B. WALL Deputy Solicitor General
HASHIM M. MOOPPAN Deputy Assistant Attorney General
SOPAN JOSHI Assistant to the Solicitor General
MARK R. FREEMAN SCOTT R. MCINTOSH DENNIS FAN GERARD J. SINZDAK
Attorneys

 
 USCA Case #19-5142 Document #1810450

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued July 12, 2019

Decided October 11, 2019

No. 19-5142

DONALD J. TRUMP, ET AL., APPELLANTS

v.

MAZARS USA, LLP AND COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES, APPELLEES

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

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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-defendantappellee 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.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge RAO.
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 ethicsin-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.

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I.
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

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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

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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 (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

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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

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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 “thenCandidate 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 thenCandidate 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

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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

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(“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

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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”).

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II.
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

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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.

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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

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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

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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

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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

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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 highprofile 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

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“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);

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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

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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.
III.
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

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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.
A.
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

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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

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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.

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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, separationof-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”).

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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

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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.

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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

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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

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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

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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

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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

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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

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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”).

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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,

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“[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

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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.
B.
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

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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.

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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

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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

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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

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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,

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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,

https://extapps2.oge.gov/201/Presiden.nsf/President%20and%

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).

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,

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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

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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

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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 structure of the Constitution, its original meaning and longstanding practice.” Id. at 3.
Of course, the Constitution always serves as our starting point, and particularly in separation-of-powers disputes, we “put significant weight upon historical practice.” Zivotofsky, 135 S. Ct. at 2091 (internal quotations omitted). Indeed, this is a path the Supreme Court and this court have already

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trod. Nearly a century of precedent has laid out an established test that resolves this inter-branch dispute in a way that, unlike the dissent, respects the co-equal status and roles of both the legislative and executive branches. Settled Supreme Court precedent teaches that—at least where, as here, no party argues that compliance with the subpoena would impair the President’s execution of the Article II power—the Constitution protects both branches’ prerogatives by determining whether the subpoena serves “a valid legislative purpose.” Barenblatt, 360 U.S. at 127. Both the Trump Plaintiffs and the Department of Justice agree that this is the relevant inquiry. See Appellants’ Br. 16 (“When Congress issues subpoenas in aid of valid legislation, it needs a legitimate legislative purpose”); Department Br. 10. (“The court must first determine whether the subpoena serves a ‘valid legislative purpose.’”).
To be sure, a Congress pursuing a legitimate legislative objective may, as the many examples recounted in the dissent demonstrate, choose to move from legislative investigation to impeachment. But the dissent cites nothing in the Constitution or case law—and there is nothing—that compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process. Nor does anything in the dissent’s lengthy recitation of historical examples dictate that result. All involved investigations targeted at individual conduct; none involved a Congressional effort to investigate the need to amend existing laws or enact remedial legislation. Instead, those examples merely demonstrate that Congress has, at various points throughout our history, debated and decided when it wishes to shift from legislating to impeaching. Where legislation may be had—and especially here, where bills are pending and no intrusion on the President’s execution of his official duties is alleged—the Constitution assigns that decision to Congress.

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Unable to prevail under the test the Supreme Court has enforced for more than a century, the dissent moves the goalposts. The dissent proposes a brand-new test for the President (and other “impeachable officials,” Dissenting Op. at 44) that would enfeeble the legislative branch. According to the dissent, once some Members—or perhaps just one Member— raise “suspicions of criminality” by an impeachable official, Congress must “end[]” all legislative investigation and either do nothing at all or “move[] that part of the investigation into impeachment.” Dissenting Op. at 19.
In other words, Congress must either initiate the grave and weighty process of impeachment or forgo any investigation in support of potential legislation. Under the dissent’s novel test, “even a valid legislative purpose” cannot “justify” the investigation. Id. at 19. The dissent identifies nothing in the text, structure, or original meaning of Article I or Article II of the Constitution to support such a sweeping rule of legislative paralysis. As the Trump Plaintiffs and the Department of Justice agree, the Supreme Court has said just the opposite: “a congressional committee which is engaged in a legitimate legislative investigation need not grind to a halt whenever . . . crime or wrongdoing is disclosed.” Hutcheson, 369 U.S. at 618.
The dissent tries to house its theory in the Supreme Court’s decision in McGrain. Quoting the Court’s observation that an investigation would be invalid “if the Senate was ‘attempting or intending to try the Attorney General at its bar or before its committee for crime or wrongdoing,’” the dissent insists that “[i]t was essential to the Court’s decision that the investigation did not target the unlawful behavior of the Attorney General,” Dissenting Op. at 49 (quoting McGrain, 273 U.S. at 179–80) (emphasis added). But as the sentence quoted by the dissent reveals, the Court said nothing about “targeting” specific conduct. Instead, the Court made clear that the investigation

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was not invalid because the authorizing “resolution, like the charges which prompted its adoption . . . [made] reference to [the Attorney General] by name,” nor was it “a valid objection to the investigation that it might possibly disclose crime or wrongdoing on his part.” McGrain, 273 U.S. at 179–80. Indeed, the district court in McGrain had adopted the dissent’s view, invalidating the subpoena because the authorizing resolution alleged “specific instances of . . . neglect” and the Senate was “proposing . . . to determine the guilt of the Attorney General of the shortcomings and wrongdoings set forth in th[ose] resolutions.” Id. at 177. The Senate was, as the district court saw it, “exercising the judicial function,” a power “impliedly negatived by th[e] Constitution, in its provision conferring the sole power of impeachment on the House of Representatives.” Ex parte Daugherty, 299 F. 620, 639 (S.D. Ohio 1924). The Supreme Court labeled this reasoning “wrong,” explaining “that the object of the investigation . . . was to obtain information for legislative purposes.” McGrain, 273 U.S. at 177.
The dissent points to McGrain’s language that “[i]t [wa]s not as if an inadmissible or unlawful object were affirmatively and definitely avowed,” arguing that, here, the subpoena is invalid because “[t]he Committee has ‘affirmatively and definitely avowed’ its suspicions of criminality against the President.’” Dissenting Op. at 50–51 (quoting McGrain, 273 U.S. at 180). The dissent misreads that sentence. According to the Court, the Senate resolution in McGrain sought “information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper.” 273 U.S. at 179 (emphasis added). But there was “no other action,” the Court explained, “which would be within the power of the Senate.” Id. It was the Senate’s “indefinite and untenable suggestion” of non-legislative action—not an avowal of suspicions of individual wrongdoing—that the Court held did

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not “invalidate[] the entire proceeding.” Id. McGrain thus squarely forecloses the dissent’s theory.
It is unsurprising that no case law supports the dissent. Under its view, Congress’s power to investigate, when it comes to the President and all other impeachable officials, would no longer be “co-extensive with [its] power to legislate.” Quinn, 349 U.S. at 160. The dissent would reorder the very structure of the Constitution. Throughout history, the Constitution has left to Congress the judgment whether to commence the impeachment process. But the dissent’s approach would not even allow Congress to make the quintessentially legislative judgment that some concerns about potential misconduct or illegality are better addressed through oversight and legislation than impeachment. Worse still, the dissent’s novel approach would now impose upon the courts the job of ordering the cessation of the legislative function and putting Congress to the Hobson’s Choice of impeachment or nothing.
To be sure, the dissent would still allow Congress to “enact legislation.” Dissenting Op. at 64. But it would have to do so uninformed and with its oversight function informationally crippled. This would mean that, at times when oversight and legislation are most urgent, such as to prevent executive branch overreach or to keep officials’ behavior within ethical boundaries going forward, Congress would be legislatively hamstrung unless it were to pull the impeachment trigger. And if Congress chooses not to pursue impeachment, or if impeachment is unavailable because Congress believes the alleged misconduct falls short of a high crime or misdemeanor, then there can be no investigation of—and thus no viable legislative check on—the President at all. A proposition that so strips Congress of its power to legislate would enforce only the Executive’s arrogation of power, not the separation of powers.

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At bottom, this subpoena is a valid exercise of the legislative oversight authority because it seeks information important to determining the fitness of legislation to address potential problems within the Executive Branch and the electoral system; it does not seek to determine the President’s fitness for office.
C.
Thus far we have concluded that the Committee is pursuing a legislative, non-law-enforcement purpose and that at least one kind of constitutional legislation may be had on the subject matter of the Committee’s investigation. What is left to decide is whether the documents requested in this subpoena are relevant to that investigation. The Trump Plaintiffs insist that at least some are not.
As the Watkins Court described it, the requirement that a subpoena request only those documents that are relevant to a committee’s legitimate investigation “is a jurisdictional concept of pertinency drawn from the nature of a congressional committee’s source of authority.” 354 U.S. at 206. Though complex sounding, the relevancy requirement functions merely as a corollary to the other restraints on congressional committees’ investigative powers: if a committee could subpoena information irrelevant to its legislative purpose, then the Constitution would in practice impose no real limit on congressional investigations.
The Supreme Court has used various formulations to describe the relevancy standard that applies to congressional subpoenas. In McGrain, the Court held that Congress could subpoena any information that would “materially aid[]” a legitimate investigation. 273 U.S. at 177. In Watkins, it explained that committees may subpoena information “to be used . . . in coping with a problem that falls within [their]

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legislative sphere.” 354 U.S. at 206. And in McPhaul v. United States, the Court offered not one but two explanations, validating a subpoena because, in the Court’s words, the subcommittee had requested records that “were not plainly incompetent or irrelevant to any lawful purpose . . . , but, on the contrary, were reasonably relevant to the inquiry.” 364 U.S. 372, 381–82 (1960) (alterations, citations, and internal quotation marks omitted). We read all these statements, varied as they are, as conveying essentially the same straightforward proposition: Congress may subpoena only that information which is “reasonably relevant” to its legitimate investigation. Id.; accord Appellants’ Br. 19 (“If the congressional subpoena is not ‘reasonably relevant to the inquiry,’ then it lacks a legitimate purpose.” (quoting McPhaul, 364 U.S. at 381–82)).
With this standard in mind, we turn to the challenged subpoena. Recall that it seeks four categories of documents: for “calendar years 2011 through 2018,” (1) “statements of financial condition, annual statements, periodic financial reports, and independent auditors’ reports,” (2) “underlying, supporting, or source documents and records,” and (3) related “memoranda, notes, and communications;” and, (4) “[w]ithout regard to time,” all related “engagement agreements or contracts.” Subpoena. For clarity, we label these four categories Accounting Records, Source Documents, Related Communications, and Engagement Agreements, respectively. In our view, all are reasonably relevant to remedial legislation addressing at least two of the topics listed in Chairman Cummings’s Memo: the President’s potential “undisclosed conflicts of interest” and the President’s “report[s] . . . to the Office of Government Ethics and other federal entities.” Cummings Memo 4.
We begin with Accounting Records and Source Documents for calendar years 2014 through 2018. Because

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then-Candidate and now-President Trump filed financial disclosure reports covering these years, financial records from this period are highly relevant to the Committee’s inquiry into whether Candidate and President Trump “accurately reported his finances to . . . federal entities,” id., and, by extension, “whether reforms are necessary to address deficiencies with current laws, rules, and regulations,” Cummings Feb. 15 Letter 9. A clear line connects the Office of Government Ethics’s May 2018 determination that President Trump’s financial disclosure form failed to list “a reportable liability” to Michael Cohen, Apol Letter 1; to Chairman Cummings’s January 2019 requests to the White House and the Office of Government Ethics for further information on President Trump’s payments to Cohen; to Cohen’s February 2019 production of Mazars accounting documents revealing financial information different from and additional to Candidate and President Trump’s financial disclosures; and finally to the Committee’s March 2019 request and April 2019 subpoena to Mazars. From this logical progression we discern “no indication” that the subpoena “follow[ed] from indiscriminate dragnet procedures, lacking in probable cause for belief that” Mazars “possesse[s] information which might be helpful to the” Committee. Barenblatt, 360 U.S. at 134. Tellingly, the Trump Plaintiffs raise no relevance objection to this subset of subpoenaed documents.
We next consider the same two categories of records— Accounting Records and Source Documents—for years 2011 through 2013. According to the Trump Plaintiffs, these documents are irrelevant to the Committee’s investigation because they “reach[] back many years before the President was even a candidate for public office.” Appellants’ Reply Br. 16–17. This is true, but beside the point. The fact that the Ethics in Government Act currently requires candidates and Presidents to disclose information for “the preceding calendar

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year,” e.g., 5 U.S.C. app. 4 § 102(b)(1)(A), hardly forecloses Congress from amending the Act to require filers to go back a reasonable amount of additional time to provide a more accurate financial picture. That is especially true here because the sitting President possesses financial holdings that are arguably more complex than past Presidents held, has elected while in office to handle his finances differently than past Presidents did, and has declined to voluntarily release the sorts of tax-return information that past Presidents disclosed. See, e.g., H.R. 1: Strengthening Ethics: Hearing Before the House Committee on Oversight and Reform, 116th Cong. 125 (Feb. 6, 2019) (statement of Walter M. Shaub, Jr.) (describing the President’s decision not “to divest his conflicting financial interests” as a “radical departure” from previous Presidents).
Congress might therefore reasonably wonder whether the Ethics in Government Act needs an update, and even precandidacy documents from the President would shed light on that inquiry. Requiring presidential candidates and Presidents to disclose earlier years’ information might, for example, reveal forgiven debts, financial partnerships, or favorable deals that Congress determines should be disclosed to the public— that is, “undisclosed conflicts of interest.” Cummings Memo 4. In fact, at least one bill now pending before the House would require presidential candidates to “submit to the Federal Election Commission a copy of [their] income tax returns for the 10 most recent taxable years.” H.R. 706, 116th Cong. § 222(b)(1)(A) (2019).
Of course, the Committee may discover nothing notable in Mazars’s 2011 through 2013 records. But that is not the test for relevancy. As the Supreme Court has explained, “[t]he very nature of the investigative function—like any research—is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises.” Eastland, 421 U.S. at 509; see also

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Appellants’ Br. 32 (conceding that “Congress cannot be penalized if an otherwise valid investigation turns out to be a dead end”). To be sure, information from the past may at some point become so stale as to be irrelevant to present inquiries, but the eight-year mark falls comfortably on the relevant side of the line.
We last turn to the Committee’s request for Related Communications and Engagement Agreements. According to the Trump Plaintiffs, these documents “have nothing to do with the financial statements the Committee says it needs.” Appellants’ Reply Br. 17. But again, we think the records’ relevancy is quite clear. As the Committee explains, the import of the Mazars accounting documents hinges on the conditions under which they were prepared—for example, whether Mazars accepted documents “as a given,” whether Mazars prepared its reports intending third parties to rely upon them, and whether Mazars had the “power[] or responsibilit[y]” to conduct independent audits. Oral Arg. Tr. 108. Obviously not every “agreement[]” or “note[]” will provide this information. Subpoena. But absent foreknowledge of the documents’ contents, congressional investigators have no way to reliably determine before issuing a subpoena which specific communications might reveal relevant information. It is enough that the categories of information sought are “reasonably relevant” to the Committee’s legitimate legislative inquiry.
IV.
Having found no constitutional defect in the Committee’s subpoena to Mazars, we at last arrive at the question of authority: “whether the committee [is] authorized” by the full House “to exact the information” it seeks. Rumely, 345 U.S. at 42–43; see also Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (“To issue a valid subpoena, . . . a committee or

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subcommittee must conform strictly to the resolution establishing its investigatory powers.”). The Trump Plaintiffs urge us to interpret the House Rules narrowly to deny the Committee the authority it claims. But we have no need—and most important, no authority—to do so.
A.
We start with the proposition, undisputed by the Trump Plaintiffs, that under the most natural reading of the House Rules, the full chamber has authorized the Committee to issue the challenged subpoena. See Oral Arg. Tr. 38–39 (Trump Plaintiffs conceding that the Rules, under a “normal reading,” authorize the subpoena). A brief tour through the Rules confirms as much.
To begin with, the Rules vest the Oversight Committee with standing authority to institute investigations and issue subpoenas without first “obtain[ing] such authority . . . by a separate resolution.” House Rules and Manual, 115th Cong., § 788 note (2017); see also Morton Rosenberg, When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry 33–34 & 34 n.5 (2017) (explaining that although “[t]he required authorization from the full House . . . may take the form of a statute, a resolution, or a standing rule of the House,” “[t]his [last] mode is the most common today” (footnotes omitted)). Clause 1(b)(1) of House Rule XI permits “[e]ach committee [to] conduct at any time such investigations and studies as it considers necessary.” And Clause 2(m) of the same Rule authorizes committees—or, when the committees so choose, their chairs—“to require, by subpoena or otherwise, . . . the production of such books, records, correspondence, memoranda, papers, and documents as [they] consider[] necessary” “[f]or the purpose of carrying out any of [their] functions and duties under . . . rule X.” House Rule XI, cl. 2(m)(1); see also id. cl. 2(m)(3)(A)(i) (permitting

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committees to “delegate[] to the[ir] chair” “[t]he power to authorize and issue subpoenas”); Rules of the House Committee on Oversight and Reform, 116th Cong., Rule 12(g) (2019) (authorizing the Oversight Committee Chair to “issue subpoenas as provided in House Rule XI, clause 2(m), in the conduct of any investigation or activity or series of investigations or activities within the jurisdiction of the Committee”).
Rule X, in turn, establishes the Oversight Committee’s jurisdiction, which unquestionably includes financialdisclosure and other ethics-in-government laws. Rule X, clause 1(n) assigns the Committee jurisdiction over the “[f]ederal civil service . . . and the status of officers and employees of the United States,” “[g]overnment management and accounting measures generally,” and “[p]ublic information and records.” Pursuant to this clause, the Oversight Committee has for decades exercised jurisdiction over the Ethics in Government Act and served as the authorizing committee for the Office of Government Ethics. See, e.g., 165 Cong. Rec. H1209 (daily ed. Jan. 24, 2019) (referring H.R. 745, a “bill to amend the Ethics in Government Act of 1978 to provide for reform in the operations of the Office of Government Ethics, . . . to the Committee on Oversight and Reform”); Letter from Jason Chaffetz, Chairman, House Committee on Oversight and Government Reform, to Walter M. Shaub, Jr., Director, Office of Government Ethics 2 (Jan. 12, 2017) (stating that the Oversight Committee “has jurisdiction in the House of Representatives for reauthorizing the [O]ffice” of Government Ethics); see also H.R. Rep. No. 95-642, pt. 1 (1977) (report of the Committee on Post Office and Civil Service, predecessor to the Oversight Committee, on H.R. 6954, predecessor to the Ethics in Government Act of 1978). Furthermore, Rule X, clause 3(i) directs the Oversight Committee to “review and study on a continuing basis the operation of Government

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activities at all levels, including the Executive Office of the President.” And lest any confusion remain regarding the Oversight Committee’s authority to oversee, Rule X, clause 4(c)(2) states that the Committee “may at any time conduct investigations of any matter without regard to [any other] clause conferring jurisdiction over the matter to another standing committee.”
Having placed “any matter” within the Oversight Committee’s wide purview, the Rules nowhere disclose an intent to carve out the President. It would be quite strange for the Rules to permit the Oversight Committee to “review and study,” House Rule X, cl. 3(i), financial disclosure laws in all their applications save for one—their application to the President. See 5 U.S.C. app. 4 §§ 101(a), (f)(1), 102 (requiring the President to file financial reports). So, too, would it be strange to direct the Committee to oversee “the operation of Government activities at all levels,” House Rule X, cl. 3(i), if the Rules really meant “at all levels except the President.” And although we do not read the second half of clause 3(i), which specifies that “Government . . . at all levels . . . includ[es] the Executive Office of the President,” to refer to the President himself, cf. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980) (holding that in the Freedom of Information Act, the term “‘Executive Office’ does not include the Office of the President”), neither do we take the “including” phrase to imply that “Government activities at all levels” means something less than “all,” see Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”). Indeed, the Trump Plaintiffs urge us to draw no such negative inference. See Appellants’ Reply Br. 6 (“Plaintiffs do not claim that [adding the] new language

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[‘Executive Office of the President’] narrowed the Committee’s authority.”).
B.
Acknowledging that literally read, the Rules permit the Committee to issue the challenged subpoena, see supra at 49, the Trump Plaintiffs insist that a literal reading is not enough. In their view, the Mazars subpoena alters the separation of powers and raises serious constitutional questions, so nothing less than an “unequivocal[] grant” by the House of “jurisdiction to subpoena the President’s accountant for his private financial records” could authorize the Committee to issue it. Appellants’ Reply Br. 2; see also Dissenting Op. at 52–58. In support, they raise three related arguments.
First, the Trump Plaintiffs contend that because “a ‘clear statement rule’ applies ‘to statutes that significantly alter the balance between Congress and the President,’” Appellants’ Br. 16 (quoting Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991)), the House could have “authorized the Committee to embark on [the instant] investigation” only through “an express statement,” Appellants’ Reply Br. 3 (internal quotation marks omitted); see also Dissenting Op. at 54–55. For this proposition, they rely primarily on two decisions, both of which held that the President is not an “agency” subject to judicial review under the Administrative Procedure Act (APA). In the first case, Armstrong v. Bush, our court held that “[w]hen Congress decides purposefully to enact legislation restricting or regulating presidential action, it must make its intent clear.” 924 F.2d at 289. “Although the ‘clear statement’ rule was originally articulated to guide interpretation of statutes that significantly alter the federal-state balance,” we explained, “there are similar compelling reasons to apply the rule to statutes that significantly alter the balance between Congress and the President.” Id. And in the second case, Franklin v.

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Massachusetts, the Supreme Court confirmed that “[o]ut of respect for the separation of powers and the unique constitutional position of the President,” the Court “would require an express statement by Congress before assuming it intended the President’s performance of his statutory duties to be reviewed for abuse of discretion” under the APA. 505 U.S. 788, 800–01 (1992).
This case is nothing like Armstrong and Franklin for a simple reason: the House Rules have no effect whatsoever on “the balance between Congress and the President.” Armstrong, 924 F.2d at 289 (emphasis added). What Rules X and XI have done is delegate from the House to the Oversight Committee the authority to exercise Congress’s subpoena power without first “obtain[ing] such authority . . . by a separate resolution” of the full House. House Rules and Manual, 115th Cong., § 788 note (2017). The Trump Plaintiffs nowhere dispute that, assuming a legitimate legislative purpose exists, the House could have either issued the challenged subpoena by a vote of the full chamber or, via express statement, authorized the Committee to issue the subpoena on its behalf. See Oral Arg. Tr. 5 (conceding that the House has the power to issue the subpoena itself and arguing that the question is “whether [it] gave [that authority] to [the] Committee”); id. at 6 (stating that it is “a question of clarity and not a question of power”); id. at 130–31 (stating that, although it would be “better” for the subpoena to come from “the full House,” the full House could pass a rule that “says . . . the committee could do it”). The Rules, which establish a mechanism for exercising the House’s subpoena power, thus deal exclusively with the allocation of authority within the legislative branch, leaving unaltered the House’s subpoena power vis-à-vis the President. Because Congress already possesses—in fact, has previously exercised, see supra at 16–17—the authority to subpoena Presidents and their information, nothing in the House Rules could in any way

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“alter the balance between” the two political branches of government. Armstrong, 924 F.2d at 289.
The Trump Plaintiffs’ second argument, containing many ingredients of their first, is similarly unavailing. Observing that “[t]he parties seriously dispute whether the subpoena has a legitimate legislative purpose,” Appellants’ Reply Br. 3—and, consequently, whether the subpoena exceeds constitutional limits on Congress’s subpoena power—the Trump Plaintiffs urge us to “resolve[] this case in a way that avoid[s] deciding” constitutional questions “by quashing the subpoena as beyond the Committee’s . . . jurisdiction,” Appellants’ Br. 23; see also Department Br. 14; Dissenting Op. at 52–58. They call our attention to two cases in particular: the Supreme Court’s decision in United States v. Rumely and ours in Tobin v. United States, 306 F.2d 270 (D.C. Cir. 1962). In Rumely, the Court “g[a]ve” the authorizing resolution at issue “a more restricted scope” because the government’s favored interpretation, which would have permitted it “to inquire into all efforts of private individuals to influence public opinion through books and periodicals,” raised “doubts of constitutionality in view of the prohibition of the First Amendment” and thus presented a “[g]rave constitutional question[].” Rumely, 345 U.S. at 46–48. And in the latter, we “constru[ed] [a] resolution[] of authority narrowly . . . in order to obviate the necessity of passing on” the “serious and difficult constitutional question[]” presented by that case, Tobin, 306 F.2d at 274–75—namely, whether Congress has “the power, under the compact clause of the Constitution, to ‘alter, amend or repeal’ its consent to an interstate compact,” id. at 272. Concerned that “the suspicion of even potential impermanency would be damaging to the very concept of interstate compacts,” id. at 273, we observed that the argument against recognizing such an implied power to alter or repeal “is not unpersuasive,” id. at 274.

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In contrast to Rumely and Tobin, the constitutional questions raised here are neither “[g]rave,” Rumely, 345 U.S. at 48, nor “serious and difficult,” Tobin, 306 F.2d at 275. We harbor no doubts that the subpoena to Mazars comports with constitutional limits, as it seeks documents reasonably relevant to a legitimate legislative inquiry into “a subject on which legislation may be had.” Eastland, 421 U.S. at 508; see supra Parts III.A–C. We therefore have no cause to invoke the canon of constitutional avoidance. See Empresa Cubana Exportadora de Alimentos y Productos Varios v. U.S. Department of Treasury, 638 F.3d 794, 801 (D.C. Cir. 2011) (“A clear statute and a weak constitutional claim are not a recipe for successful invocation of the constitutional avoidance canon.”).
That is not to say the issues presented here are unimportant—far from it. But the canon of constitutional avoidance “is not a license for the judiciary to rewrite language enacted by the legislature.” United States v. Albertini, 472 U.S. 675, 680 (1985). To adopt a restrictive interpretation of the Rules when uncompelled by constitutional concerns, “while purporting to be an exercise in judicial restraint,” would in fact be to “trench upon the legislative powers vested in Congress by [Article I] of the Constitution.” Id. We have no authority to avoid questions—even important ones—simply because we might prefer not to answer them. Cf. United States v. American Telephone & Telegraph Co., 567 F.2d 121, 126 (D.C. Cir. 1977) (“The simple fact of a conflict between the legislative and executive branches over a congressional subpoena does not preclude judicial resolution.”).
Finally, the Trump Plaintiffs argue that even if no separation-of-powers concerns demand application of the clear statement rule, and even if no constitutional questions rise to the level of serious, it would, given the “sensitive” nature of the Committee’s request, Appellants’ Reply Br. 2 (internal

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quotation marks omitted), still be “better,” Oral Arg. Tr. 130, for the full House to grant the Committee “express authority to subpoena the President for his personal financial records,” Appellants’ Reply Br. 5. We, however, have no authority to impose such a requirement on the House. The Constitution gives “[e]ach House” of Congress authority to “determine the Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, meaning that courts lack the power to invalidate a duly authorized congressional subpoena merely because it might have been “better [if] . . . the full House” had specifically authorized or issued it, Oral Arg. Tr. 130. See Eastland, 421 U.S. at 509 (“The wisdom of congressional approach or methodology is not open to judicial veto.”). To be sure, “the courts will intervene to protect constitutional rights from infringement by Congress, including its committees and members.” Exxon Corp., 589 F.2d at 590. But unless and until Congress adopts a rule that offends the Constitution, the courts get no vote in how each chamber chooses to run its internal affairs. See id. (“[W]here constitutional rights are not violated, there is no warrant for the judiciary to interfere with the internal procedures of Congress.”).
The trouble with clear statement rules, then, is that they both “involve[] an unwillingness to give full effect to [Congress’s] unambiguous text” as it exists now, OwnerOperator Independent Drivers Ass’n v. U.S. Department of Transportation, 724 F.3d 230, 237 (D.C. Cir. 2013), and offer a not-so-subtle encouragement to Congress to alter its rules in the future. Without some constitutionally compelled reason, we may do neither. As our court recently explained, “interpreting a congressional rule ‘differently than would the Congress itself,’ is tantamount to ‘making the Rules—a power that the Rulemaking Clause reserves to each House alone.’” Barker v. Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019) (quoting United States v. Rostenkowski, 59 F.3d 1291, 1306–07 (D.C. Cir.

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1995)). Accordingly, absent a substantial constitutional question pertaining to the House’s legislative power, we have no more authority to give a cramped interpretation to a House Rule via a clear statement requirement or the constitutional avoidance canon than we do to take out our red pens and edit the Rules ourselves.
But the House may. And indeed it has. On July 24, several weeks after oral argument in this case and several months after the Oversight Committee issued the challenged subpoena to Mazars, the full House adopted a resolution that in no uncertain terms “ratifie[d] and affirm[ed]” the Oversight Committee’s authority under House Rules X and XI to issue subpoenas “concerning . . . the President in his personal or official capacity [and] his immediate family, business entities, or organizations.” H.R. Res. 507, 116th Cong. (2019). Resolution 507—a resolution “[a]ffirming the validity of subpoenas duly issued and investigations undertaken by . . . committee[s] of the House . . . pursuant to authorities delegated by . . . the [House] Rules,” id.—purports neither to enlarge the Committee’s jurisdiction nor to amend the House Rules. Instead, the Resolution clarifies the authority that the Committee had on the day it issued the subpoena. It is “plainly incorrect,” the Resolution states, to assert that previously issued subpoenas “seeking personal, financial, banking, and tax information related to the President” “were not authorized by the full House.” Id.
Because the Trump Plaintiffs concede, as they must, that “[t]he Resolution does not expand the Committee’s jurisdiction,” Appellants’ July 31 Letter 1; see also Dissenting Op. at 55 n.18, we need not address their argument that “the ‘scope’ of a committee’s jurisdiction must ‘be ascertained as of th[e] time’ of the request,” id. (alteration in original) (quoting Rumely, 345 U.S. at 48). The Trump Plaintiffs may very well

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be right that the authority of a congressional committee to issue subpoenas “‘cannot be enlarged by subsequent action of Congress.’” Id. (quoting Rumely, 345 U.S. at 48); but cf. Dombrowski v. Burbank, 358 F.2d 821, 825 (D.C. Cir. 1966), aff’d in part, rev’d in part on other grounds sub nom. Dombrowski v. Eastland, 387 U.S. 82 (1967) (holding that for purposes of establishing immunity from suit, a subcommittee could ratify a subpoena previously issued “without prior authorization from the [s]ubcommittee”). Resolution 507, however, “enlarges” nothing. It merely confirms what the Trump Plaintiffs admit—that the plain text of the House Rules authorizes the subpoena, see supra at 46, and merely provides what the Trump Plaintiffs request—that the House “‘spell[] out [its] intention’” by “‘adopt[ing] a resolution which in express terms authorizes’” the challenged subpoena. Appellants’ Reply Br. 8–9 (quoting Tobin, 306 F.2d at 275–76). Because the House has “clearly manifest[ed] its intention of putting such a decisional burden upon us,” we have no choice but to “meet and decide” the issues presented by this case. Tobin, 306 F.2d at 276.
The Justice Department adds one final objection. Although conceding that the Resolution “clearly authorizes the Committee’s subpoena[,]” Department Br. 16, the Department warns that because Resolution 507 also authorizes future subpoenas, there is a “serious risk” that “[C]ongressional committees may issue successive subpoenas in waves, making far-reaching demands that harry the President and distract his attention.” Department Br. 6. Time will tell whether the Department’s prediction is accurate. At present, however, we have no need to consider that hypothetical scenario because the only subpoena currently before us is the one directed at Mazars. And to be clear, neither the Trump Plaintiffs nor the Department has argued that compliance with that subpoena risks unconstitutionally burdening the President’s core duties.

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Nor could they. It is Mazars, a third-party, that will retrieve and organize the relevant information; the subpoena seeks nonconfidential records in which the President has asserted no proprietary or evidentiary protections; and Mazars, not the President, risks contempt through non-compliance. To be sure, monitoring Mazars’s compliance with the subpoena might require some presidential time and attention. But as the Supreme Court made clear in Clinton v. Jones, a “burden [on] the time and attention of the Chief Executive,” standing alone, “is not sufficient to establish a violation of the Constitution.” 520 U.S. at 703.
V.
Though our journey has been long, we find ourselves at the end of a familiar tale. A congressional committee, as committees have done repeatedly over the past two centuries, issued an investigative subpoena, and the target of that subpoena, questioning the committee’s legislative purpose, has asked a court to invalidate it. The fact that the subpoena in this case seeks information that concerns the President of the United States adds a twist, but not a surprising one: disputes between Congress and the President are a recurring plot in our national story. And that is precisely what the Framers intended. As Justice Brandeis wrote, “[t]he doctrine of the separation of powers was adopted . . . not to promote efficiency but to preclude the exercise of arbitrary power.” Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting). “The purpose,” he explained, “was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Id.
Having considered the weighty interests at stake in this case, we conclude that the subpoena issued by the Committee

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to Mazars is valid and enforceable. We affirm the district court’s judgment in favor of the Oversight Committee and against the Trump Plaintiffs.
So ordered.

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RAO, Circuit Judge, dissenting: The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress’s impeachment power to support this subpoena. When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power. Throughout our history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government. I respectfully dissent.
I.
We are asked to determine whether the Committee’s subpoena is within the legislative power, a question that raises serious separation of powers concerns about how a House committee may investigate a sitting president. The constitutional questions only hinted at by the majority become clearer when the proper framework is applied. First, the Committee’s subpoena and investigation explicitly state a purpose of investigating illegal conduct of the President, including specific violations of ethics laws and the Constitution. Second, Congress’s power to investigate for legislative purposes, although broad, is not unlimited and cannot circumvent the distinct power to investigate for purposes of impeachment. Allegations that an impeachable official acted unlawfully must be pursued through impeachment. Finally, the subpoena targets the President and

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raises implications for the separation of powers that the majority cannot brush aside simply because the subpoena is addressed to the President’s accountants, Mazars USA, LLP. These preliminary matters place this novel investigation in context and frame the analysis of the substantial constitutional questions presented in this case.
The Committee, the Trump plaintiffs, and the majority all agree that the most relevant document for assessing the Committee’s reasons for issuing the subpoena is Chairman Elijah E. Cummings’s April 12 Memorandum. See Memorandum from Chairman Elijah E. Cummings to Members of the Committee on Oversight and Reform (Apr. 12, 2019) (“Cummings Memorandum”); Appellant Br. 32–33; Maj. Op. 25; cf. Wilkinson v. United States, 365 U.S. 399, 410 (1961) (looking to the “Chairman’s statement at the opening of the hearings” for signs of legislative purpose); Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968). The Cummings Memorandum states the Committee is investigating “whether the President may have engaged in illegal conduct” and notes that this information will “inform[] its review of multiple laws and legislative proposals under our jurisdiction.” Cummings Memorandum at 4. The Committee also makes an “express avowal” to investigate alleged violations of ethics laws and the Constitution by the President. See McGrain v. Daugherty, 273 U.S. 135, 178 (1927) (noting that “[a]n express avowal of the object” of an investigation would aid the courts in reviewing the Senate’s purpose); see also infra Part III.A (discussing Committee’s purposes in detail).
The Committee announces two distinct investigations: one to explore allegations of illegal conduct by the President; and another to review multiple laws and legislative proposals within the Committee’s jurisdiction. The Committee justifies both inquiries under the legislative power, and the majority accepts this framework when it examines the legislative power

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in isolation to determine whether this investigation falls within its scope. Maj. Op. 20–54. Yet the Constitution vests the House of Representatives with more than one investigative power. Most frequently, the House investigates and issues subpoenas ancillary to its legislative powers. That investigative power is “co-extensive with the power to legislate.” Quinn v. United States, 349 U.S. 155, 160 (1955); see also Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad.”).
The House, however, has a separate power to investigate pursuant to impeachment, which has always been understood as a limited judicial power to hold certain impeachable officials accountable for wrongdoing.1 See Kilbourn v. Thompson, 103 U.S. 168, 191 (1880) (“The Senate also exercises the judicial power of trying impeachments, and the House of preferring articles of impeachment.”). The text and structure of the Constitution, its original meaning, and longstanding practice demonstrate that Congress’s legislative and judicial powers are distinct and exercised through separate processes, for different purposes, and with entirely different protections for individuals targeted for investigation. See infra Part II.
1 In addition to the legislative and impeachment powers, the House and the Senate have other investigative powers, not relevant here, to maintain the integrity of their proceedings and members against bribery, nuisance, and violence. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 228–30 (1821); Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613 (1929) (the Senate has “certain powers, which are not legislative, but judicial, in character. Among these is the power to judge of the elections, returns, and qualifications of its own members.” (citing U.S. CONST. art. I, § 5, cl. 1)).

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The Committee’s investigation into alleged illegal actions of the President naturally raises the specter of impeachment. Although the Trump plaintiffs maintain that “[t]he one thing the parties agree on is that this case is not about impeachment,” Appellants Br. 14, the impeachment power unmistakably sits in the background of the legal arguments.2 The Trump plaintiffs and the Department of Justice have suggested that the impeachment power might provide a different source of authority for this subpoena, even though it was not invoked here. See Appellants Br. 45 (noting with regard to impeachment that “[w]hile Congress could presumably use subpoenas to advance these non-legislative powers, the Committee has not invoked them”); DOJ Br. 15 n.1 (“The House’s impeachment power is an express authority whose exercise does not require a connection to valid legislation. But the Committee has asserted neither jurisdiction over, nor an objective of pursuing, impeachment.”). Furthermore, one of the primary legal arguments raised by the Trump plaintiffs is that the Committee’s investigation is an impermissible form of “law enforcement.” Appellants Br. 33–37. While law enforcement is normally the province of the executive branch, the House has a narrowly circumscribed power to serve as the “NATIONAL INQUEST” when it acts pursuant to the impeachment power. The Federalist No. 65, at 338 (Alexander Hamilton) (George W. Carey & James McClellan eds., 2001). The Committee is
2 Notably, the district court concluded that the impeachment and removal powers of the House and the Senate somehow bolster Congress’s ability to investigate the President through the legislative power. See Trump v. Comm. on Oversight & Reform, 380 F. Supp. 3d 76, 95 (D.D.C. 2019) (“It is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present— even without formally opening an impeachment inquiry.”).

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“not here relying on impeachment power.” Oral Arg. at 1:34:19–22. Nevertheless, understanding the impeachment power is essential to identifying the limits of the legislative power when Congress seeks to investigate allegations of specific unlawful actions by the President.
Constitutional powers do not stand in isolation, but rather are part of a complex structure in which each power acquires specific content and meaning in relation to the others. The Supreme Court often locates the limits of one constitutional power by identifying what is at the core of another. See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2096 (2015) (“Congress has substantial authority over passports . . . . [But] [t]o allow Congress to control the President’s communication in the context of a formal recognition determination is to allow Congress to exercise that exclusive power itself.”); Bowsher v. Synar, 478 U.S. 714, 722 (1986) (“The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”); Myers v. United States, 272 U.S. 52, 164 (1926) (“[A]rticle 2 excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices.”); Kilbourn, 103 U.S. at 192 (the House “not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was in its nature clearly judicial”). This method helps illuminate the scope of the legislative power to investigate. Comparing Congress’s legislative power with its wholly distinct judicial power of impeachment demonstrates the essential difference between these powers when Congress seeks to investigate the wrongdoing of the President.

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As explained below, allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. The House may impeach for “Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. CONST. art. II, § 4, and has substantial discretion to define and pursue charges of impeachment. See The Federalist No. 65, at 338 (impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself”). While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold.3 Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process.4 Thus, the key determination is whether this
3 This discussion of the impeachment power proceeds only in relation to understanding the scope of the legislative power. As the Committee has not raised the impeachment power as a basis for this subpoena, questions regarding whether such a subpoena could issue under the impeachment power are outside the scope of this opinion, as are other questions regarding the justiciability of the impeachment power or the specific scope of impeachable offenses. Recognizing the political nature of impeachable offenses, I refer to them throughout the opinion by various terms to reflect that such offenses may include wrongdoing or illegal conduct deemed by the House to be a high crime or misdemeanor.
4 Voluntary compliance with congressional investigations is commonplace. Different concerns arise, however, when one branch invokes power over the other through compulsory process. See, e.g., Watkins, 354 U.S. at 215 (“It is only those investigations that are conducted by use of compulsory process that give rise to a need to protect the rights of individuals against illegal encroachment. That protection can be readily achieved through procedures which prevent

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investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” To make this determination requires no search for hidden motives, but simply crediting the Committee’s consistently stated purpose to investigate “illegal conduct” of the President. Cummings Memorandum at 4; cf. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”).
The Committee’s stated interest in remedial legislation may support any number of investigations, including into the conduct of agencies and how officials administer the laws. Yet a legislative purpose cannot whitewash this subpoena, which— by the Committee’s own description—targets allegations of illegal conduct by the President. The most important question is not whether Congress has put forth some legitimate legislative purpose, but rather whether Congress is investigating suspicions of criminality or allegations that the President violated a law. Such investigations may be pursued exclusively through impeachment. The House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power.
The majority recognizes this subpoena concerns the Committee’s “interest in determining whether and how illegal conduct has occurred,” Maj. Op. 30, but nonetheless concludes that it is a valid exercise of the legislative power. This marks a sharp break with the few judicial precedents in this area. The Supreme Court has consistently maintained that Congress cannot undertake a legislative investigation of an impeachable official if the “gravamen” of the investigation rests on “suspicions of criminality.” Kilbourn, 103 U.S. at 193, 195. In
the separation of power from responsibility and which provide the constitutional requisites of fairness for witnesses.”).

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Senate Select Committee on Presidential Campaign Activities v. Nixon, our court refused to enforce a legislative subpoena to President Richard Nixon by the Senate Select Committee tasked with investigating the Watergate break-in. 498 F.2d 725 (D.C. Cir. 1974) (en banc). The tapes sought by the subpoena were too “tangential” to the Committee’s asserted legislative purposes, especially because the House had commenced impeachment proceedings to ascertain the President’s role in these events. Id. at 733.
The majority’s holding also breaks with the longstanding historical practice of Congress and the Executive. Without analyzing the Constitution or responding to the consistent historical understanding presented below, the majority simply asserts that Congress must be able “to make the quintessentially legislative judgment that some concerns about potential misconduct or illegality are better addressed through . . . legislation than impeachment.” Maj. Op. 49. The majority’s novel holding, however, fails to explain how specific accusations of wrongdoing by impeachable officials can be pursued through legislation. The Constitution, historical practice, and our cases prohibit rolling this investigation of illegal conduct of the President into a legislative investigation. Allowing Congress to use the legislative power to circumvent the impeachment process disrupts the separation of powers. By simply invoking a need for remedial legislation, Congress may now expand its control over the other branches and avoid the accountability and responsibility inherent in the impeachment power.
Finally, the inter-branch conflict in this case does not dissipate simply because the subpoena for the President’s papers is strategically directed to Mazars rather than the President. In an attempt to sidestep thorny separation of powers questions, the majority reduces the conflict to a merely personal one involving the President’s accountants: “[T]o

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resolve this case, we need not decide whether the Constitution permits Congress, in the conduct of a legislative—that is, nonimpeachment—investigation, to issue subpoenas to a sitting President.” Id. at 20. By the majority’s account, the subpoena does not transgress any constitutionally prescribed boundaries between co-equal branches in part because “quite simply, the Oversight Committee has not subpoenaed President Trump.” Id. The majority thus concludes that concerns about the relative powers of the President and Congress do not come into play. Yet this claim belies both precedent and common sense. Indeed, by the end of its opinion, the majority abandons even this reservation and simply asserts, “Congress already possesses . . . the authority to subpoena Presidents and their information.” Id. at 59.
The official actions of the Chief Executive are essentially bound up in the Mazars subpoena. A subpoena’s force extends beyond its recipient, which the majority has implicitly acknowledged by declining to question President Trump’s standing to challenge the subpoena’s validity. As we have previously explained: “[T]he fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party . . . . The fact that the Executive is not in a position to assert its claim of constitutional right by refusing to comply with a subpoena does not bar the challenge.” United States v. AT&T, 567 F.2d 121, 129 (D.C. Cir. 1977) (citing Eastland, 421 U.S. at 513 (Marshall, J., concurring)). Moreover, we have recognized that congressional subpoenas may create a “portentous clash between the executive and legislative branches” notwithstanding the fact that the subpoena was issued against a private party. United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976); accord Eastland, 421 U.S. at 498, 501 n.14 (reviewing challenge to third-party subpoena because

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otherwise “compliance by the third person could frustrate any judicial inquiry”).
The Committee’s subpoena is directed to Mazars but targets the President’s papers. The form of the subpoena cannot mask the inter-branch conflict between Congress and the President. Cf. Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 225–26 (D.C. Cir. 2013) (refusing to allow “end runs” around “separation-of-powers concerns” by subpoenaing the Secret Service instead of the President for presidential calendars). Despite the majority’s skepticism, President Trump necessarily “carries the mantle of the Office of the President in this case.” Maj. Op. 24; cf. In re Lindsey, 158 F.3d 1263, 1286 (D.C. Cir. 1998) (Tatel, J., concurring in part and dissenting in part) (“Because the Presidency is tied so tightly to the persona of its occupant . . . the line between official and personal can be both elusive and difficult to discern.”).5
The basic contours of the problem are straightforward— the Committee’s subpoena seeks information regarding alleged unlawful actions of the President. The direct conflict between Congress and the President cannot be evaded by treating this as an ordinary legislative inquiry involving a subpoena to an accounting firm. In pursuit of remedial legislation, the Committee may investigate broadly, but this subpoena goes too
5 As the Department of Justice points out, it is also possible that judicial resolution would not be necessary if the Committee had issued the subpoena to the President directly. DOJ Br. 7–8. Instead, the President and the House would negotiate in the “hurly-burly, the give and take of the political process between the legislative and the executive,” likely raising a mix of legal and political arguments and appealing to the public for support. Executive Privilege - Secrecy in Government: Hearings Before the Subcomm. on Intergovernmental Relations of the S. Comm. on Government Operations, 94th Cong. 87 (1975) (statement of Antonin Scalia, Assistant Att’y Gen., Office of Legal Counsel).

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far because the legislative power cannot target whether the President violated the law.
II.
The question of whether the House may issue this subpoena for a legislative purpose presents a serious conflict between Congress and the President. While the question has never been squarely addressed by the Supreme Court, Congress and the executive branch have regularly confronted similar problems. Accordingly, I start at the beginning. The text and structure of the Constitution are best read to provide for impeachment as the exclusive mechanism for reaching the wrongdoing of the President and other impeachable officials. The original understanding of Congress’s separate legislative and impeachment powers, as well as consistent historical practice since the Founding, confirms that congressional investigations of the alleged unlawful actions of the President cannot be pursued through the legislative power. Cf. NLRB v. Noel Canning, 573 U.S. 513, 524–26 (2014) (“‘[L]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions’ regulating the relationship between Congress and the President.” (quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929))).
Targeting an individual officer for suspicions of criminality requires proceeding through the impeachment power, with its attendant procedural protections and accountability. The majority claims to recount a “familiar tale” of congressional subpoenas and investigations, Maj. Op. 65; however, its story covers only legislative investigations that involve no allegations of wrongdoing against an impeachable official. The majority’s cursory and selective use of history glosses over important distinctions carefully maintained by all three branches between Congress’s legislative and judicial powers of investigation.

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A.
The text and structure of the Constitution set out with precision the process for Congress to investigate the unlawful actions of the President—namely, impeachment by the House followed by a trial in the Senate. The distinctions between the legislative and judicial powers of Congress are firmly rooted in the Constitution and reflect the fundamental differences between these powers in our system of government. The original meaning confirms that Congress acts in an exceptional judicial capacity when exercising impeachment powers. Investigating unlawful actions by impeachable officials is outside the legislative power because impeachment provides the exclusive mechanism for Congress to investigate such conduct.
Congress is vested with limited and enumerated legislative powers, and while the power to investigate is not in the text of the Constitution, it has long been recognized that Congress may investigate and issue subpoenas necessary and proper to the exercise of the legislative power. U.S. CONST. art. I, § 8, cl. 18. As the Court has explained, “the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain, 273 U.S. at 174. Such investigations are part of the legislative power and may extend no farther than that power permits. See Quinn, 349 U.S. at 161.
In the United States, however, the legislative power does not include the exercise of judicial power to determine the guilt or innocence of individuals.6 The Constitution prohibits bills
6 By contrast, at the time of the Founding, the British House of Commons possessed broad powers to “impeach” not only officials but individual citizens, who could be tried by the House of Lords in a judicial capacity for any criminal offense. 4 William Blackstone, Commentaries *259–61. As such, Parliament could not only remove

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of attainder. U.S. CONST. art. I, § 9, cl. 3; art. I, § 10, cl. 1; see also United States v. Brown, 381 U.S. 437, 442 (1965) (“[T]he Bill of Attainder Clause was intended not as a narrow, technical . . . prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.”). The Framers understood the importance of prohibiting Congress from turning its substantial powers against an individual and possessed a “sense of a sharp necessity to separate the legislative from the judicial power.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 389 (1798) (reviewing parliamentary abuses of bills of attainder and noting “the Federal and State Legislatures, were prohibited from passing any bill of attainder; or any ex post facto law” to prevent “acts of violence and injustice” against individuals). As Montesquieu warned, if the judicial powers were “joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.” Montesquieu, The Spirit of the Laws 157 (A. Cohler et al. eds., 1989).
Vested with the power to make the laws, Congress cannot also execute and adjudicate them. See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136 (1810) (“It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society
an official but also assess a broad range of punishments at the discretion of “the wisdom of the peers.” Id. at *121–22. Against the abuses of this practice, the Founders limited the scope of impeachable offenses and punishments for conviction. See Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805, at 96– 98 (1984); see also Akhil R. Amar, America’s Constitution: A Biography 199–203 (2005) (describing how the “system of federal impeachment broke decisively with English impeachment practice”).

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would seem to be the duty of other departments.”). Exercising the legislative power, Congress may enact general, prospective rules for the whole of society. Yet Congress cannot prosecute and decide specific cases against individuals. Such powers properly belong to the executive branch and the independent judiciary—a division essential to maintaining fundamental aspects of our separation of powers and protecting the rights of individuals accused of illegal actions.
As an exception to this separation, the Constitution confers upon the House and Senate limited judicial powers over impeachable officials. The Constitution vests the House of Representatives with the “sole Power of Impeachment,” U.S. CONST. art. I, § 2, cl. 5, and the Senate with the “sole Power to try all Impeachments,” U.S. CONST. art. I, § 3, cl. 6. The Constitution creates a two-tier system, dividing limited judicial power between the House and the Senate to target individual cases of wrongdoing by impeachable officials. These judicial powers were understood as exceptions to the legislative power vested in Congress. See Kilbourn, 103 U.S. at 190–91 (noting impeachment and removal as exceptions to the separation of powers because they place judicial power in Congress); Hayburn’s Case, 2 U.S. (2 Dall.) 408, 410 (1792) (“[N]o judicial power of any kind appears to be vested [in the legislature], but the important one relative to impeachments.”).
In the context of an impeachment inquiry, the House serves as a kind of grand jury, investigating public officials for misconduct. As Hamilton noted, the “delicacy and magnitude of [this] trust” transforms the House into a “NATIONAL INQUEST.” The Federalist No. 65, at 338. The Senate acts as a “court for the trial of impeachments,” exercising the “awful discretion which a court of impeachments must necessarily have, to doom to honour or to infamy the most confidential and the most distinguished characters of the community.” Id. at 339. Trial by the Senate in cases of impeachment is part of the

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“judicial character of the Senate.” Id. at 337; see also Jefferson’s Manual of Parliamentary Practice § 619 (“The trial, though it varies in external ceremony, yet differs not in essentials from criminal prosecutions before inferior courts.”). The Constitution requires senators trying an impeachment to be on “Oath or Affirmation” and for the Chief Justice to preside when the President is tried; conviction requires “two thirds of the Members present.” U.S. CONST. art. I, § 3, cl. 6. The Constitution refers to “Judgment in Cases of Impeachment.” U.S. CONST. art. I, § 3, cl. 7.
As an exercise of judicial power, the impeachment process targets the individual. The Constitution’s text confirms this understanding: “no Person shall be convicted,” and “the Party convicted” shall be liable according to the law. U.S. CONST. art. I, § 3, cls. 6–7. “The President, Vice President, and all civil Officers of the United States” are subject to impeachment. U.S. CONST. art. II, § 4. Article I makes clear that in this role, the Senate acts as a court trying impeachable offenses and renders judgment that could result in removal from office and disqualification from holding any “Office of honor, Trust, or Profit under the United States.” U.S. CONST. art. I, § 3, cl. 6. The impeachable offenses enumerated in the Constitution specifically target individual wrongdoing, namely “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. CONST. art. II, § 4; see also The Federalist No. 65, at 339 (observing the Senate was the only body with “confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers”).
The Founders treated impeachable offenses as wholly distinct from the subjects of investigation for legislative purposes, such as maladministration. The exact phrasing of an impeachable offense was debated at the Philadelphia Convention. After the Convention settled on “Treason, or

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bribery,” George Mason moved to include “maladministration” as an additional ground for impeachment. 2 Records of the Federal Convention 550 (Max Farrand ed., 1937). James Madison objected, arguing that “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate,” and Gouverneur Morris argued that “[a]n election of every four years will prevent maladministration.” Id. Conceding the point, Mason withdrew “maladministration” and submitted the text eventually enacted: “other high crimes & misdemeanors.” Id. Thus, impeachment addresses a public official’s wrongdoing— treason, bribery, and high crimes or misdemeanors—while problems of general maladministration are left to the political process.
In addition, impeachment by the House and trial by the Senate were understood to include constitutional rights normally afforded to the accused in a criminal trial. After examining English, colonial, and early constitutional practice, Justice Story concluded that the common law rights of criminal defendants apply in the exercise of the impeachment power. See 3 Joseph Story, Commentaries on the Constitution of the United States § 796 (1833) (“[I]n trials by impeachment the law differs not in essentials from criminal prosecutions before inferior courts. The same rules of evidence, the same legal notions of crimes and punishments prevail.”); see also 3 Asher C. Hinds, Hinds’ Precedents of the House of Representatives § 2486 (“Hinds”) (“In the prosecution of an impeachment, such rules must be observed as are essential to justice; and, if not exactly the same as those which are practiced in ordinary courts, they must be analogous, and as nearly similar to them as forms will permit.” (quoting Op. Att’y Gen. of May 9, 1796)).
The Supreme Court has long recognized the enhanced protections required by impeachment’s judicial function, even if such matters are generally not justiciable. See Nixon v.

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United States, 506 U.S. 224, 238 (1993) (concluding that judicial review of impeachment procedures would be inconsistent with the text and structure of the Constitution); Marshall v. Gordon, 243 U.S. 521, 547 (1917) (noting that when the congressional contempt power is “transformed into judicial authority” as when a “committee contemplate[es] impeachment,” the authority becomes “subject to all the restrictions and limitations imposed by the Constitution”); Kilbourn, 103 U.S. at 190 (impeachment proceedings assume “the same manner” and employ the “same means that courts of justice can in like cases”).
Moreover, impeachment and removal ensure accountability to Congress but are not designed to give Congress direct control over the executive branch. The President is the head of a co-equal and independent branch of government. The impeachment power raised concerns for Gouverneur Morris and other Framers who feared “the prospect of impeachment would make the chief executive dependent upon the legislature.” Peter Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805, at 100 (1984); see also The Federalist No. 65, at 341 (noting the risk of “persecution of an intemperate or designing majority in the House of Representatives”).
Because of the weighty responsibility of investigating and trying public officers, “the Constitution structured impeachment as a system of national accountability.” Akhil R. Amar, America’s Constitution: A Biography 201 (2005). The Framers established a mechanism for Congress to hold even the highest officials accountable, but also required the House to take responsibility for invoking this power. See 3 Annals of Cong. 903 (1793) (statement of Rep. Smith) (describing the “solemnities and guards” the impeachment process offers to public officers “accused of a breach of duty”); H.R. Rep. No. 93-1305, at 182 (1974) (describing the House’s “responsibility

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as representatives of the people” in the Nixon impeachment process). By vesting this visible and solemn power in one institution, the Constitution forces the House to take accountability for its actions when investigating the President’s misconduct. See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 110 (1996) (“[M]embers of Congress seeking reelection have a political incentive to avoid any abuse of the impeachment power. . . . [T]he cumbersome nature of the impeachment process makes it difficult for a faction guided by base personal or partisan motives to impeach and remove someone from office.”); Julie R. O’Sullivan, The Interaction Between Impeachment and the Independent Counsel Statute, 86 GEO. L.J. 2193, 2229–30 (1998) (“[E]lectoral accountability is the ultimate check by which Congress’s abuse of its otherwise externally unchecked power of impeachment may be constrained.”).
In light of the text, structure, and original meaning, the Constitution is best read to provide for impeachment as the exclusive mechanism for Congress to investigate the wrongdoing of the President and other impeachable officials. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610 (1838) (“The executive power is vested in a President; and as far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power.”). It would be wholly inconsistent with this exacting structure and its explicit safeguards if Congress could target unlawful actions by impeachable officials simply through its legislative power, thereby encroaching on the Executive without the processes, protections, and accountability of impeachment.
B.

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Because “the interpretive questions before us concern the allocation of power between two elected branches of Government,” Noel Canning, 573 U.S. at 524, I proceed to consider the historical practice regarding congressional investigations of the executive branch and executive officials. Cf. Zivotofsky, 135 S. Ct. at 2084 (“To determine whether the President possesses the exclusive power of recognition the Court examines the Constitution’s text and structure, as well as precedent and history bearing on the question.”). While historical practice is relevant, it does not alter the original meaning of the Constitution. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 370 (1995) (Thomas, J., concurring in the judgment) (recognizing the concern with overturning longstanding state practice, but concluding that “the historical evidence from the framing outweighs recent tradition”).
With respect to Congress’s investigative powers, the original meaning and historical practice align—all three branches have consistently distinguished between investigations for legislative purposes and investigations targeting wrongdoing by an impeachable official. Moreover, the historical evidence demonstrates that Congress often begins an investigation into the executive branch with general questions properly pertaining to legislation; however, if an inquiry turns to suspicions of criminality, Congress moves that part of the investigation into impeachment or ends the inquiry into the impeachable official. Thus, even a valid legislative purpose has never been thought to justify probing specific accusations of wrongdoing by impeachable officials. Exercising their independent duty to interpret the Constitution, the political branches have maintained that impeachment is the exclusive mechanism for investigating impeachable offenses. This historical practice reflects and reinforces the Constitution’s text, structure, and original meaning, and is consistent with the Supreme Court’s precedents.

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1.
Founding Era practice confirms the Constitution’s original meaning—investigations of unlawful actions by an impeachable official cannot proceed through the legislative power. For instance, in 1793 the House passed a broad resolution to investigate the administration of the Department of the Treasury. See 3 Annals of Cong. 835–40 (1793). Representative William Giles subsequently introduced a string of resolutions alleging wrongdoing and lawbreaking by Secretary Alexander Hamilton. Id. at 900 (alleging, inter alia, “[t]hat the Secretary of the Treasury has violated the law”). Responding to Representative Giles’s resolution, Representative William Smith argued that an investigation of whether “the Secretary violated a law” could not proceed under the guise of “an investigation of theoretic principles of Government.” Id. at 901. Instead, the Constitution “directs” that Congress must confront “great public functionaries . . . accused of a breach of duty” through the impeachment process, with its attendant “solemnities and guards.” Id. at 903; see also id. at 903–04 (statement of Rep. Murray); id. at 947–48 (statement of Rep. Boudinot) (“[The Committee] were no longer acting in a Legislative capacity, but were now exercising the important office of the grand inquest of the Nation . . . . The honor and reputation of the officer thus charged . . . required a steady, uniform, and disinterested examination of every question from us.”). Representative Giles’s resolutions were decisively defeated. See id. at 955–63.
Similarly, in 1796 the House requested from President George Washington documents and diplomatic correspondence related to the Jay Treaty and its ratification in order to determine whether to appropriate the funds necessary to implement the Treaty. President Washington argued that because the House could not compel him to disclose the documents through an exercise of its legislative powers, it

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could demand the documents only through an exercise of its impeachment power: “It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed.” See 5 Annals of Cong. 760–62 (1796). The House passed a resolution disapproving of President Washington’s message, but eventually appropriated the funds necessary to implement the Treaty without receiving the papers it demanded from the President. See id. at 1291.
Moreover, during the early years of the Republic, when the House sought to target individual, official misconduct, it proceeded through the impeachment power, not the legislative power. In the high profile 1805 impeachment of Associate Justice Samuel Chase, the investigation into his misconduct proceeded unambiguously under the impeachment power. See 3 Hinds §§ 2342–46. The House specifically defined its role as that of a grand jury and voted to authorize an impeachment investigation by a committee vested with subpoena powers. See id. § 2342.7
One early impeachment illustrates the line between general investigation and impeachment particularly well. During an investigation of the “disposition of the funds of the district court,” “the conduct of the judge of the district had been somewhat implicated.” 32 Annals of Cong. 1715–16 (1818) (discussing Judge William P. Van Ness of the Southern District of New York). The Judiciary Committee thought it improper to
7 Congress conducted such investigations exclusively through the impeachment power throughout the Founding Era. See 3 Hinds §§ 2294–2302 (impeachment of Senator William Blount, 1797); §§ 2319–23 (impeachment of Judge John Pickering, 1803); §§ 2364– 67 (impeachment of Judge James Peck, 1830, highlighting the importance of protections for the accused before the Senate trial).

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proceed under the existing resolution and sought specific authority from the House to transfer from a legislative investigation to an investigation of the judge’s “official conduct.” Id. After such authority was granted, the Committee conducted an impeachment inquiry and found no “ground for the constitutional interposition of the House.” 3 Hinds § 2489.
Ignoring these Founding Era precedents, the majority touches briefly on investigations for legislative purposes that concerned only general maladministration. None of the majority’s examples involve an allegation of individual wrongdoing or unlawful activity by an impeachable officer. Indeed, the majority’s examples help to demonstrate the original understanding that such investigations proceed exclusively through the impeachment power.
The majority begins with the House’s 1792 investigation into the failure of the expedition under General Arthur St. Clair in the Northwestern Territory. Maj. Op. 11. This investigation did not single out any particular officer for misconduct; instead, it was a general investigation into “the causes of the late defeat of the army under the command of Major-General St. Clair” and associated problems of logistics and supply. 3 Hinds § 1725. The investigation did not focus on General St. Clair, who was in any event not an impeachable officer because the impeachment power extends only to “civil Officers.” U.S. CONST. art. II, § 4. Rather, the House sought to study the problems of execution in the expedition as a whole. Furthermore, at the Washington Administration’s urging, Congress amended its resolution of inquiry to disclaim any intention of seeking private papers. See Thomas Jefferson, Memoranda of Consultations with the President (11 Mar. to 9 Apr. 1792); 3 Hinds § 1726 (calling for papers only “of a public nature”). Contrast this general investigation with the investigation of Secretary Hamilton: when the inquiry began to focus on whether Hamilton had violated the law, the House

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insisted such inquiries could not proceed through the ongoing legislative investigation. The investigation of the St. Clair expedition never turned toward an impeachable official, and therefore remained within Congress’s legislative powers. See 3 Annals of Cong. 490–94 (1792).
Similarly, the majority’s reference to Congress’s investigation of the burning of Washington in 1814 offers a useful example of the line maintained throughout the Founding Era between general investigation and impeachment. Maj. Op. 12. This legislative investigation focused on the general causes of the military disaster without targeting any individual officer. See Herman J. Viola, “The Burning of Washington, 1814,” in Congress Investigates: A Critical and Documentary History 41–45 (Roger A. Bruns et al. eds., 2011). The majority’s Founding Era precedents thus buttress the rule that investigations into the causes of maladministration may proceed under the legislative power; however, the legislative power cannot support an investigation into whether an impeachable official has violated the laws. Such congressional inquiry must proceed, if at all, through the impeachment process.
2.
The Founding Era practice continued into the Jacksonian Era. For example, in 1832, Representative John Quincy Adams defeated a resolution seeking to conduct a legislative investigation into charges of public misconduct against a federal land commissioner. The matter was referred to the House Judiciary Committee after Adams argued that “[t]he resolution contained a matter of charge against a public officer. Prima facie it would lead to an expectation of an impeachment. It was alike due to the character of the officer in question, and to the reputation of the House, to investigate the matter solemnly and effectually.” 8 Reg. Deb. 2198–99 (1832).

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In 1836, the House appointed a select committee to conduct a broad investigation of all departments of the Jackson Administration, empowering the committee to call for persons and papers. 3 Hinds § 1737. When the Committee’s investigation focused on particular officials, President Andrew Jackson intervened in protest of the Committee’s “illegal and unconstitutional calls for information.” Id. The President argued that he would fully cooperate with an investigation conducted “in the accustomed mode,” impeachment, but would not subject himself to “the establishment of a Spanish inquisition.” Letter from President Andrew Jackson to Rep. Henry A. Wise, Chairman, H. Select Comm. (Jan. 26, 1837). Chairman Wise resisted and submitted a resolution disagreeing with the doctrine expounded by the President, providing a rare contrary understanding of the scope of the legislative power to investigate. But the Chairman’s position was soundly defeated by his committee, which issued a report endorsing President Jackson’s position and noting that the investigation amounted to charges “against the individual officers for ‘corrupt violation’ of existing laws.” 3 Hinds § 1740. The Committee further concluded that “the only constitutional power under which the House of Representatives, as a coordinate branch of the Government, could constitute a committee to inquire into alleged ‘corrupt violations of duty’ by another coordinate branch of the Government (the Executive) is the ‘power of impeachment.’” Id.
Indeed, Congress reaffirmed that it could not censure President Jackson outside the context of impeachment. After initially voting to censure, the Senate later expunged the censure from the record on the grounds that “President Jackson was adjudged and pronounced to be guilty of an impeachable offence, and a stigma placed upon him, as a violator of his oath of office, and of the laws and constitution which he was sworn to preserve, protect, and defend, without going through the forms of an impeachment, and without allowing him the

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benefits of a trial, or the means of defence.” 12 Reg. Deb. 878 (1836).8
Presidents James Polk, Ulysses Grant, and Grover Cleveland continued to vigorously defend the line between legislative and impeachment investigations, maintaining the latter included legal protections for the officer accused. In 1846, the House formed a select committee to investigate the possibility of impeaching Daniel Webster, the former Secretary of State (and then-Senator), with the power to send for papers. Cong. Globe, 29th Cong., 1st Sess. 945 (1846). While the Select Committee conducted its investigation, the House debated a resolution calling for the State Department to produce documents tending to incriminate Webster. Id. at 636. Some members argued that only the duly authorized Select Committee could make such a request. Id. at 636–43. Representative Adams maintained that an impeachable official “may not be reached by side-blows.” Id. at 641. The resolution passed, but President Polk refused to turn over the requested documents because the resolution did not clearly spell out
8 The majority asserts that “Presidents, too, have often been the subject of Congress’s legislative investigations.” Maj. Op. 15. Its one example from the Jacksonian Era, however, fails to support its conclusion. The majority refers to the select committee appointed to investigate former Representative Samuel Houston and whether he received money from the Secretary of War with the President’s knowledge. Id. at 15–16. Far from an investigation of the President’s wrongdoing, this inquiry was part of a broader investigation of Houston’s assault on a member of Congress for statements made on the floor. The Committee Report never mentions the President, nor does it indicate the Committee took any steps to investigate the President. See 2 Hinds §§ 1616–19; 8 Reg. Deb. 2591–92 (1832) (context of inquiry); id. at 2595 (then-Rep. Polk proposing inquiry); id. at 2853 (need for resolution was to determine veracity of statement made on floor that provoked Houston’s attack); id. at 3022–33 (resolution forming select committee).

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Congress’s intent to obtain the documents pursuant to its impeachment power.
President Polk emphasized, however, that he would fully cooperate with a duly authorized impeachment investigation. See 2 Hinds § 1561 (“[T]he power of impeachment belongs to the House of Representatives, and that with a view to the exercise of this power, that House has the right to investigate the conduct of all public officers under the government.” (quoting President James K. Polk, Message to the House of Representatives, April 20, 1846)). The Select Committee “entirely concur[red] with the President of the United States” and his decision not to “communicate or make public, except with a view to an impeachment” the document sought. Cong. Globe, 29th Cong. 1st Sess. 946–48, 988 (1846); see also H.R. Rep. No. 29-684, at 4 (1846). The House approved the Select Committee’s proposal and took no further action on the matter. See 2 George Ticknor Curtis, The Life of Daniel Webster 283 (1870). President Polk and the House agreed that the House may call for documents seeking evidence of a public officer’s wrongdoing only pursuant to an impeachment investigation.9
This issue was raised again by the 1860 House Select Committee to Investigate Alleged Corruptions in Government (“Covode Committee”) when it investigated “whether the President of the United States, or any other officer of the Government, has, by money, patronage, or other improper means, sought to influence the action of Congress.”
9 Presidents adhered to this position throughout the Nineteenth Century without pushback from Congress. See, e.g., 17 Cong. Rec. 1903 (1886) (statement of President Cleveland) (“I am also led unequivocally to dispute the right of the Senate, by the aid of any documents whatever, or in any way save through the judicial process of trial on impeachment, to review or reverse the acts of the Executive in the suspension . . . of Federal officials.”).

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2 Hinds § 1596. President Buchanan protested the attempt to circumvent the impeachment process, noting that while the House has the “wholesome prerogative” of examining administration of the departments of the government:
Should [the House] find reason to believe in the course of their examinations that any grave offense had been committed by the President . . . rendering it proper, in their judgment, to resort to impeachment, their course would be plain. They would then transfer the question from their legislative to their accusatory jurisdiction, and take care that . . . the accused should enjoy the benefit of crossexamining the witnesses and all the other safeguards with which the Constitution surrounds every American citizen.
President James Buchanan, Addendum to March 28 Message to Congress (June 22, 1860). The House asserted its power to investigate generally, but issued no subpoena seeking evidence of unlawful conduct by the President. See 2 Hinds § 1596; 3 Hinds § 1683.
Even the Civil War and Reconstruction Congresses, which strongly asserted congressional power, adhered to the distinction between investigations for legislative purposes and investigations of illegal conduct by an impeachable official. For example, the Joint Committee on the Conduct of the War harangued non-impeachable military officers and articulated broad theories of congressional power, but never issued compulsory process to the President or sought to determine if particular civil officers violated the law. See generally Elizabeth Joan Doyle, “The Conduct of the Civil War, 1861– 65” in Congress Investigates at 160–89. The majority’s reference to the Harpers Ferry investigation, Maj. Op. 12, similarly misses the mark because that investigation never

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focused on the unlawful conduct of an impeachable official, but instead sought facts about the raid generally in order to determine whether legislation was necessary. See Roger A. Bruns, “John Brown’s Raid on Harpers Ferry, 1859–60” in Congress Investigates at 127–28.
The impeachment of President Andrew Johnson demonstrates the strength of the rule against using legislative inquiries to circumvent the impeachment process. The House rebuffed early attempts to initiate an inquiry into President Johnson’s wrongdoing under the auspices of an investigation into the executive branch’s administration. See Michael Les Benedict, “The Impeachment of President Andrew Johnson, 1867–68” in Congress Investigates at 263–64. While a minority of representatives would have favored using the legislative power to address President Johnson’s abuses, “the tedious job of taking testimony and searching through documents” did not begin until after a formal impeachment process was initiated. Id.; see also 3 Hinds §§ 2399–2400.
President Grant maintained the line against aggressive congressional requests in the midst of Reconstruction. The House requested detailed information regarding President Grant’s whereabouts while performing executive functions to determine whether the President was in violation of the Act of 16 July 1790, which established the District of Columbia as the seat of government. See 3 Hinds § 1889. President Grant refused to comply with the request on separation of powers grounds. See 4 Cong. Rec. 2999–3000 (1876). As he explained, the investigation did not “belong to the province of legislation,” nor did it bear on any impeachment proceeding. Id. He therefore felt obliged under the Constitution to refuse the request in order to prevent “encroachments upon the proper powers of the office which the people of the United States have confided to me.” Id.; see also 3 Hinds § 1889 (“What the House of Representatives may require as a right in its demand upon

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the Executive for information is limited to what is necessary for the proper discharge of its powers of legislation or of impeachment.”). The House took no further action. See 3 Hinds § 1889.
In the 1879 investigation of United States Consul George Seward, the House again reaffirmed the separation between legislative and impeachment investigations. Acting under its legislative authority, the House Committee on Expenditures in the State Department attempted to hold Seward in contempt for failing to comply with a subpoena seeking certain official papers. Id. § 1699. Seward argued that the Committee was not authorized to conduct an impeachment inquiry and could not investigate his alleged misconduct pursuant to the legislative power. Agreeing with Seward, the House referred the matter to the Judiciary Committee. Id. The Judiciary Committee’s report “distinguished[ed] this case from the case of an ordinary investigation for legislative purposes,” and held that the Committee on Expenditures had acted beyond its legislative powers by attempting to circumvent the protections of the impeachment process:
The Executive is as independent of either House of Congress as either House of Congress is independent of him, and they cannot call for the records of his action or the action of his officers against his consent, any more than he can call for any of the journals or records of the House or Senate.
Id. §§ 1700, 2514. The Judiciary Committee maintained that the House had no right to issue compulsory process against the executive branch outside the impeachment process.10
10 The Judiciary Committee recognized that Seward could not be compelled to produce either private or public papers. His private

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3.
Continuing into the Twentieth Century, presidents have been vigilant against congressional attempts to circumvent the impeachment process. In 1909, the Senate attempted to subpoena documents from the Attorney General regarding the Department of Justice’s failure to act against U.S. Steel Corporation. President Theodore Roosevelt refused to comply, so the Senate subpoenaed the Commissioner of Corporations, an officer within the Department of Commerce and Labor, for the same documents. See Commissioner of Corporations— Right of Senate Committee to Ask for Information, 27 Op. Att’y Gen. 150 (1909). After ordering the Commissioner to withhold the documents, the President informed the Senate that he would turn over the documents only if the Senate was acting in its capacity as an impeachment court. See History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress, 6 Op. O.L.C. 751, 769 (1982) (citing Edward S. Corwin, The President: Office and Powers 429–30 (1957)). The Senate took no further action.11
Investigations of Secretary of the Treasury Andrew Mellon similarly demonstrate the executive branch’s resistance
papers were protected by the right against self-incrimination and his title to his private property, which could not be collaterally stripped by Congress. As for public papers, the Committee recognized them as within the province of executive privilege. 3 Hinds §§ 1700, 2514.
11 President Roosevelt’s handling of the matter was recorded by his personal aide: “I told [Senator Clark] that the Senate should not have those papers and that [the Commissioner] turned them over to me. The only way the Senate or the committee can get those papers now is through my impeachment.” Archibald Willingham Butt & Lawrence F. Abbott, The Letters of Archie Butt, Personal Aide to President Roosevelt 305–06 (1924).

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to releasing documents demanded for legislative purposes in relation to an impeachable official’s wrongdoing. In 1925, President Calvin Coolidge refused to hand over Mellon’s tax returns to a Senate committee tasked with a legislative investigation of the Bureau of Internal Revenue, noting that “the attack which is being made on the Treasury Department goes beyond any . . . legitimate requirements.” 65 Cong. Rec. 6087–88 (1924).12 In 1929, the Senate Judiciary Committee investigated Mellon’s alleged violations of financial conflicts of interest laws. The Committee determined it did not have the power to issue compulsory process because “it would be a judicial inquiry and [] not in aid of any legislative function of the Senate” and could be reached only through “duly instated criminal proceedings or impeachment proceedings originating in the House of Representatives.” S. Rep. No. 71-7, at 3 (1929). In 1932, the House Judiciary Committee was authorized to conduct a formal impeachment investigation, with subpoena power, into the same allegations of Mellon’s alleged lawbreaking. 3 Deschler’s Precedents, Ch. 14, § 14.1 (“Deschler”).13
12 Congress did not attempt to enforce the subpoena in court but instead engaged in negotiations with the executive branch, which resulted in a compromise and Congress passing legislation regarding the disclosure of tax returns. See George K. Yin, James Couzens, Andrew Mellon, the ‘Greatest Tax Suit in the History of the World,’ and Creation of the Joint Committee on Taxation and Its Staff, 66 TAX L. REV. 787, 857 (2013).
13 The majority’s citation to the Pearl Harbor investigation, Maj. Op. 16, is of limited value, as President Franklin Roosevelt passed away on April 12, 1945, nearly five months before Congress authorized the investigation on September 6, 1945, placing the former President beyond the reach of Congress’s subpoena power. See Wayne Thompson, “The Pearl Harbor Committee, 1945–46” in Congress Investigates at 670.

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4.
In the modern era, Congress has investigated allegations of illegal conduct by Presidents Richard Nixon, Ronald Reagan, and Bill Clinton. The majority cites these as examples of presidents being “the subject of Congress’s legislative investigations.” Maj. Op. 16–18. Contrary to the majority’s characterization, these investigations reinforce that Congress may launch legislative investigations into administration generally, including the President’s involvement in discretionary decisionmaking and purported scandals, but when wrongdoing by the President is targeted or uncovered the House transfers allegations of such conduct to an impeachment inquiry.
For example, the congressional inquiry into the break-in at the Democratic National Committee’s headquarters in the Watergate Hotel began with the creation of a Senate Select Committee to investigate the incident and determine whether new legislation on electoral safeguards might be needed. See S. Res. 60, 93d Cong. § 1(a) (1973). The inquiry centered on whether any actions—“illegal, improper, or unethical”—took place, but the inquiry did not target any specific persons. Id. President Nixon initially rebuffed the Select Committee’s informal requests for information. See Letter from President Richard M. Nixon to Sen. Sam J. Ervin Jr., Chairman, Sen. Select Comm. on Presidential Campaign Activities (July 6, 1973). The Committee, acting pursuant to its legislative power, later issued two subpoenas to the President. Those subpoenas were eventually quashed by this court. See Senate Select, 498 F.2d at 733.14
14 When the Supreme Court upheld the grand jury request for President Nixon’s tapes, it specifically confined its decision to the context of criminal investigations and noted it was not concerned

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While litigation was pending, the House Judiciary Committee determined that the evidence gathered through both the Senate and special counsel investigations had shifted the focus so heavily toward allegations of wrongdoing by President Nixon that a formal impeachment investigation was necessary to proceed any further:
We have reached the point when it is important that the House explicitly confirm our responsibility under the Constitution.
We are asking the House of Representatives, by this resolution, to authorize and direct the Committee on the Judiciary to investigate the conduct of the President of the United States, to determine whether or not evidence exists that the President is responsible for any acts that in the contemplation of the Constitution are grounds for impeachment . . . .
[W]e are asking the House to give the Judiciary Committee the power of subpoena in its investigations. Such a resolution has always been passed by the House. . . . It is a necessary step if we are to meet our obligations.
3 Deschler Ch. 14, § 6.2. Only after the House passed a resolution explicitly invoking its authority under the impeachment power did the Judiciary Committee subpoena the President. See H.R. Res. 803, 93d Cong. (1974); H.R. Rep. No. 93-1305, at 6 (1974).
The House Judiciary Committee took responsibility for commencing an impeachment investigation and thereafter
with how these issues might be resolved in the context of “congressional demands for information.” United States v. Nixon, 418 U.S. 683, 712 n.19 (1974).

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accorded robust procedural protections to ensure that documents obtained in the course of that process remained confidential. H.R. Rep. No. 93-1305, at 8–9. The Committee also determined that the President must comply only with subpoenas issued “relative to the impeachment inquiry.” 3 Deschler Ch. 14, § 6.12. Notably, one of the grounds in the resulting articles of impeachment was President Nixon’s failure to comply with subpoenas, but only those issued after formal authorization of the impeachment investigation. Id. § 15.13. The majority neglects this institutional history and focuses only on the Select Committee’s unsuccessful attempt to subpoena the President for legislative purposes. Maj. Op. 17–18. In the 1970s, as in the 1790s, the House recognized the importance of invoking the impeachment power when an investigation shifts from a legislative inquiry to an investigation of the illegal action of an impeachable official.
Regarding the Iran-Contra Affair in 1987, the majority asserts that the House committee established to inquire into illegal arms sales to Iran to finance Nicaraguan rebels sought to “investigate . . . the role of the President” in those events. Id. at 16. This misrepresents the broad scope of the investigation, which inquired into whether and how the National Security Council staff and other agency officials were involved. The House resolution forming the Select Committee to Investigate Covert Arms Transactions with Iran refers to the President only in relation to assessing the need for legislation regarding “authorization and supervision or lack thereof of the matters in this section by the President and other White House personnel.” H.R. Res. 12, 100th Cong. § 1(e) (1987). The corresponding Senate resolution does not mention the President at all. See S. Res. 23, 100th Cong. (1987). Reflecting the general focus on the process of national security decisionmaking, the joint report issued by the House and Senate select committees sought to “explain what happened in the Iran-Contra Affair” rather than target the actions of any individual official. H.R. Rep. No. 100-

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433, at xv–xvi (1987). The Committees obtained over one million pages of documents, in part through subpoenas, but only accessed the President’s personal papers through his voluntary cooperation.
Similarly, the majority mischaracterizes the lessons of Congress’s investigation of the Whitewater Development Corporation and the eventual impeachment trial of President Clinton. Congressional involvement began several years after a United States Attorney forwarded a criminal investigation of the failure of Madison Guaranty Savings and Loan Association to the Department of Justice and, ultimately, an independent counsel. From 1994 to 1998, various House and Senate committees gathered facts on Madison Guaranty’s failure and whether agencies and administration officials cooperated with the independent counsel. See S. Res. 120, 104th Cong. (1995). The committees investigated with a wide lens, but stopped well short of targeting offenses by particular officers. See, e.g., S. Rep. No. 104-191, at 1–3 (1995). Then-Governor Clinton’s involvement in Whitewater was parsed in relation to public ethics, good governance, and the regulation of financial institutions. See The Failure of Madison Guaranty Savings and Loan Association and Related Matters: Hearing Before the H. Comm. on Banking and Fin. Servs., 104th Cong. 1–5 (1995) (opening statement of Rep. James A. Leach, Chairman) (purpose of Whitewater hearings was to “shed light on the character of modern political leadership rather than simply spotlight flaws in a particular leader; . . . [and] to draw lessons for oversight of our banking laws rather than simply critique what went wrong with one institution”). While the President received subpoenas from the independent counsel, other federal investigators, and a federal grand jury, the majority points to no examples of either house of Congress issuing a subpoena to the President prior to impeachment.

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Once President Clinton’s alleged misconduct became the target, the House, citing much of the history discussed above, formally invoked the impeachment power. See H.R. Rep. No. 105-795, at 24 (1998) (“Because impeachment is delegated solely to the House of Representatives by the Constitution, the full House of Representatives should be involved in critical decision making regarding various stages of impeachment.”). The House proceeded to a full floor vote to authorize an impeachment inquiry. See H.R. Res. 581, 105th Cong. (1998) (authorizing the Judiciary Committee to subpoena persons and things).
The House also declined to issue a censure resolution because it would circumvent the Impeachment and Bill of Attainder Clauses. See H.R. Rep. No. 105-830, at 137 (1998) (“[F]or the President or any other civil officer, censure as a shaming punishment by the legislature is precluded by the Constitution, since the impeachment provisions permit Congress only to remove an officer . . . and disqualify him from office. Not only would [censure] undermine the separation of powers by punishing the President . . . in a manner other than expressly provided for in the Constitution, but it would violate the Constitution’s prohibition on Bills of Attainder.”).
***
The text, structure, and original meaning of the Constitution are best understood to provide for impeachment as the exclusive mechanism for Congress to investigate the illegal conduct of the President and other impeachable officials. The majority presents no evidence from the Constitution, our cases, or the consistent interpretation of the political branches to refute these conclusions. From the Founding to the present, interactions between the political branches demonstrate a consistent practice that confirms the original meaning regarding the separation of the legislative and judicial powers of the House. The Constitution and our history

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reinforce several principles. First, the House cannot investigate the illegal conduct of an impeachable officer pursuant to the legislative power. Second, the investigation of the illegal conduct of an impeachable officer can be pursued only under the impeachment power, which transforms the House from a legislative body into the grand inquest of the nation and affords procedural and constitutional protections to the accused. Third, the House may not circumvent the weighty accountability of the impeachment process simply by proceeding through a legislative investigation.
III.
With these constitutional and historical principles as guideposts, I reach the question at hand: whether the Committee’s subpoena is a valid exercise of the legislative power. I examine the subpoena and conclude that it seeks to investigate illegal conduct of the President by reconstructing past actions in connection with alleged violations of ethics laws and the Emoluments Clauses. Such an inquiry exceeds Congress’s legislative power. The remedial legislative purposes offered by the Committee might authorize any number of other investigations, but cannot authorize this subpoena, which seeks to determine whether the President violated the law. Moreover, this subpoena represents an unprecedented assertion of legislative power and is readily distinguished from our previous cases. Neither the Constitution, nor longstanding interpretation by all three branches, supports the majority’s conclusion, which upholds— for the first time—a targeted investigation of the President’s alleged unlawful conduct under the legislative power.
A.
As the above history makes clear, the House’s legislative and judicial powers are wholly distinct and the House cannot target conduct that could constitute a high crime or

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misdemeanor through the legislative power. Discerning the line between the legislative and impeachment powers does not require a search for the Committee’s motives because the Committee has emphasized repeatedly and candidly its interest in investigating allegations of illegal conduct by the President. In general, courts properly refrain from questioning legislative motive when assessing the legitimacy of congressional investigations, accord Maj. Op. 22, but this does not excuse us from the judicial duty to assure Congress is acting “in pursuance of its constitutional power.” Barenblatt v. United States, 360 U.S. 109, 132 (1959); see also Eastland, 421 U.S. at 508–09 (upholding subpoenas “about a subject on which legislation may be had”); Watkins, 354 U.S. at 200 (“[M]otives alone would not vitiate an investigation . . . if that assembly’s legislative purpose is being served.”). An inquiry into motive involves looking behind the stated reasons for a Committee’s actions. In the Committee’s investigation, however, the “suspicions of criminality” are quite clearly articulated in the subpoena, the Cummings Memorandum, and other documents: the Committee seeks evidence of alleged unlawful actions by the President. See Shelton, 404 F.2d at 1297 (noting that sources for determining “[t]he object of the particular inquiry” include “the resolution of the Congress authorizing the inquiry,” “the opening statement of the Chairman,” and “statements of the members of the committee” (citing Watkins, 354 U.S. at 209)); see also Barenblatt, 360 U.S. at 117 (“[T]he nature of the proceedings themselves, might sometimes make the topic (under inquiry) clear.” (quoting Watkins, 354 U.S. at 209)).
First, and most overtly, the subpoena seeks to uncover “whether the President may have engaged in illegal conduct before and during his tenure in office.” Cummings Memorandum at 4. This inquiry relates in part to unofficial wrongdoing—i.e., events that occurred before President Trump’s tenure in office—but also to actions during his tenure

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in office. The investigation specifically targets the President. It is not about administration of the laws generally or the President’s incidental involvement in or knowledge of any alleged unlawful activity within the executive branch. Instead the topics of investigation exclusively focus on the President’s possible engagement in “illegal conduct.”
Second, the subpoena seeks to help the Committee understand “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions.” Id.; see also Appellee Br. 32 (“These documents may illuminate whether and to what extent [President] Trump misrepresented his liabilities on federal disclosure forms and has undisclosed conflicts of interest.”). Again, this inquiry seeks to uncover alleged wrongdoing—undisclosed conflicts of interest may violate the statutory reporting requirements applicable to the President. See Appellee Br. 33 (“[E]xposing conflicts of interest is one of the core objectives of the Ethics in Government Act.” (quoting Trump v. Comm. on Oversight & Reform, 380 F. Supp. 3d 76, 95 (D.D.C. 2019))).
Third, the subpoena seeks to investigate “whether [the President] is complying with the Emoluments Clauses of the Constitution.” Cummings Memorandum at 4; see also Appellee Br. 34–35 (discussing “[t]he Oversight Committee’s related investigations into [President] Trump’s potential violations of the Emoluments Clauses”). On the Committee’s own terms, it is investigating whether the President is in violation of the constitutional bar on public officials “accept[ing] . . . any present, Emolument, Office, or Title.” U.S. CONST. art. I, § 9, cl. 8 (Foreign Emoluments Clause); see also U.S. CONST. art. II, § 1, cl. 7 (Domestic Emoluments Clause). Quite simply the Committee seeks information about whether the President is violating the Constitution.
Fourth, the Committee seeks to inquire about “whether [the President] has accurately reported his finances to the

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Office of Government Ethics and other federal entities.” Cummings Memorandum at 4; see also Appellee Br. 31 (“[The Committee’s] investigations include . . . whether [President] Trump . . . submitted inaccurate financial disclosure forms to the Ethics Office.”). Again, the Committee seeks to uncover whether the President has violated the law in his official capacity—namely, the Ethics in Government Act of 1978, 5 U.S.C. app. 4 § 101 et seq., which imposes financial disclosure requirements on the President. The Committee’s jurisdiction includes the authority to conduct oversight of the Office of Government Ethics and how it implements various ethics requirements for federal officials. See Letter from Appellee Regarding Oral Argument Matter at 3–4 (July 16, 2019) (asserting that the Oversight Committee has jurisdiction over the Ethics in Government Act under House Rule X, cl. 1(n)(1)). Yet this particular inquiry is not about the administration of the Office of Government Ethics or of the laws it administers, but rather about reconstructing suspected violations of ethics laws by the Chief Executive. The Committee seeks information about past transactions related to the President’s financial reporting—which, if found inaccurate or incomplete, may carry civil and criminal penalties. See 5 U.S.C. app. 4 § 104(a).
The four inquiries stated in the Cummings Memorandum are more than political flourish—they unambiguously set out the nature of this investigation. These inquiries are repeated throughout statements and letters of the Chairman on behalf of the Committee. See, e.g., Letter from Rep. Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, to Pat Cipollone, Counsel to the President (Jan. 8, 2019) (request for “documents related to President Trump’s reporting of debts and payments to his personal attorney, Michael Cohen”); Letter from Rep. Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, to Emory A. Rounds III, Director of Office of Gov’t Ethics (Jan. 22, 2019) (request for “documents relating to President Donald Trump’s reporting of debts and

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payments to his personal attorney, Michael Cohen, to silence women alleging extramarital affairs”); Letter from Rep. Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, to Pat Cipollone, Counsel to the President (Feb. 15, 2019) (demanding answers to “significant questions about why some of the President’s closest advisors made [] false claims [about alleged payments] and the extent to which they too were acting at the direction of, or in coordination with, the President”); Letter from Rep. Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, to Victor Wahba, Chairman and Chief Executive Officer, Mazars USA, LLP (Mar. 20, 2019) (request for documents citing accusation by Cohen that “President Trump changed the estimated value of his assets and liabilities on financial statements . . . including inflating or deflating the value of assets depending on the purpose for which he intended to use the statements”). The Cummings Memorandum also relies on the February 27, 2019, hearing testimony of Michael Cohen, Cummings Memorandum at 1–2, during which the Chairman and Oversight Committee members repeatedly invoked allegations of criminality by the President. See Appellant Br. 7–8 (collecting statements from Cohen hearing). In this subpoena, the Committee has made clear that it seeks to investigate illegal conduct of the President. Indeed, the majority acknowledges that the Committee has an “interest in determining whether and how illegal conduct has occurred.” Maj. Op. 30.
The subpoena itself focuses on information that closely tracks the Committee’s stated object of investigating illegal conduct. It seeks, “with respect to Donald J. Trump” and his organizations, “[a]ll memoranda, notes, and communications” and “[a]ll underlying, supporting, or source documents and records” relating to multiple categories of financial statements going back to 2011, as well as “all engagement agreements or contracts” “without regard to time.” In addition, the subpoena specifically demands “all communications” between President

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Trump and his accountants and “all communications related to” any “potential concerns” that President Trump’s records “were incomplete, inaccurate, or otherwise unsatisfactory.”
The subpoena thus seeks to recreate, in exhaustive detail, the exact processes, discussions, and agreements that went into preparing the President’s financial records over a multi-year period in order to determine whether there is anything misleading or problematic in those records. Such requests are akin to a criminal grand jury subpoena, designed to “inquire into all information that might possibly bear on [the] investigation until it has identified an offense or has satisfied itself that none has occurred.” United States v. R. Enters., Inc., 498 U.S. 292, 297 (1991). By contrast, “legislative judgments normally depend more on the predicted consequences of proposed legislative actions . . . than on precise reconstruction of past events.” Senate Select, 498 F.2d at 732.
Moreover, the Committee’s litigating position in this case continues to emphasize the importance of the four inquiries, each of which target the President’s alleged wrongdoing and potential violations of statutes and the Constitution: “The Oversight Committee is investigating whether [President] Trump inaccurately represented liabilities on his statutorily mandated financial disclosures, impermissibly benefited from a lease with a government agency, and violated the Constitution.” Appellee Br. 44; see also id. at 8–17, 21, 22–23, 31–35, 42, 44–45. Thus, we need not peer behind the curtain to find the Committee’s suspicions of wrongdoing—the Committee has explicitly and consistently avowed the purpose of investigating alleged illegal activities of the President.
The Committee also offers a legislative purpose. The Cummings Memorandum concludes with the statement that “[t]he Committee’s interest in these matters informs [the Committee’s] review of multiple laws and legislative proposals under [its] jurisdiction.” Cummings Memorandum at 4; see

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also Letter from Rep. Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, to Pat Cipollone, Counsel to the President (Feb. 15, 2019) (“Congress has investigated how existing laws are being implemented and whether changes to the laws are necessary.”). Thus, even though the legislative purpose appears in a single sentence, the Committee states a double purpose—to investigate “criminal conduct by [President] Trump” and also to pursue remedial legislation relating to government ethics. Appellee Br. 44.
Given the broad power to investigate in aid of legislation, remedial legislative purposes will often be sufficient to uphold an investigation and accompanying subpoena. See Quinn, 349 U.S. at 160–61 (investigative power co-extensive with legislative power). The majority finds the Committee’s assertion of a legislative purpose sufficient because “[s]uch an ‘express avowal of the [Committee’s] object’ offers strong evidence of the Committee’s legislative purpose.” Maj. Op. 26 (quoting McGrain, 273 U.S. at 178). “The Committee’s interest in alleged misconduct, therefore, is in direct furtherance of its legislative purpose.” Id. at 31. In other words, the majority acknowledges that the Committee seeks to investigate illegal conduct of the President, but then states it is “even more important” that the Committee is seeking to “review multiple laws and legislative proposals under [its] jurisdiction.” Id. at 26 (quoting Cummings Memorandum at 4). Because the Constitution provides only one way for Congress to investigate illegal conduct by the President, the mere statement of a legislative purpose is not “more important” when a committee also plainly states its intent to investigate such conduct. The legislative power cannot support this subpoena.
The majority ignores the essential constitutional distinction between the different investigative powers of Congress and turns longstanding practice on its head by concluding dismissively that “we can easily reject the

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suggestion that this rationale [of investigating whether the ‘President may have engaged in illegal conduct’] spoils the Committee’s otherwise valid legislative inquiry.” Id. at 29. The valid legislative inquiry is not entirely spoiled—the Committee’s inquiry into legislative proposals may continue in any number of legitimate directions. Yet the Committee’s specific investigation targeting the President, if it is to continue, may be pursued only through impeachment. Since the Republic’s beginning, the President, Congress, and the courts have recognized that when Congress seeks to investigate individual suspicions of criminality against the President (or other impeachable officials), it cannot rely on its legislative powers. The legislative power being more general and expansive, it cannot trump, so to speak, the more specific impeachment power, which is necessary for an investigation of the illegal conduct of the President.
B.
This is the first time a court has recognized that a congressional investigation pertains to “whether and how illegal conduct has occurred,” Maj. Op. 30, but then upholds that investigation under the legislative power. The majority attempts to rely on our precedents to justify this subpoena by focusing on whether it is an impermissible exercise of “law enforcement” power. Id. at 21–22 (responding to appellants). The majority relies on cases that deal with private citizens and problems of administration—but a subpoena against the President that investigates allegations of illegal conduct cannot be shoehorned into this framework. A review of the cases demonstrates the novelty of the majority’s holding.
The majority maintains that “an interest in past illegality can be wholly consistent with an intent to enact remedial legislation.” Id. at 29. To the extent the precedents support this general principle, however, it has been applied only in the context of private individuals. It is well established that

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Congress cannot exercise the executive or judicial powers, which are vested in the other departments of the government. “[T]he power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn, 349 U.S. at 161. The Court made this general observation with respect to private individuals, not impeachable public officials. As far as private individuals are concerned, Congress emphatically has no law enforcement powers—no power to indict, to try, or to convict—and cannot enact a bill of attainder that would single out a person for punishment through legislation. U.S. CONST. art. I, § 9, cl. 3; art. I, § 10, cl. 1; see also Brown, 381 U.S. at 445–46 (“[T]he Legislative Branch is not so well suited as politically independent judges and juries to the task of ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons. . . . By banning bills of attainder, the Framers of the Constitution sought to guard against such dangers by limiting legislatures to the task of rule-making.”).
The cases cited by the majority demonstrate that during an investigation of private activity, the incidental revelation of criminal activity is tolerated when Congress has a legitimate legislative purpose,15 precisely because Congress cannot take
15 Even when a valid legislative purpose exists, the Court has been vigilant in guarding the constitutional rights of private citizens. See Watkins, 354 U.S. at 198–99 (courts cannot “abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly”); Quinn, 349 U.S. at 161; United States v. Rumely, 345 U.S. 41, 44 (1953) (“[W]e would have to be that ‘blind’ Court . . . not to know that there is wide concern, both in and out of Congress, over some aspects of the exercise of the congressional

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any action against a private person for lawbreaking. In Hutcheson v. United States, the Supreme Court permitted a Senate committee to investigate the unlawful activity of a union president despite the fact that, if any wrongdoing was uncovered, the evidence might have “warranted a separate state prosecution.” 369 U.S. 599, 617 (1962) (emphasis added). The union president was, of course, not amenable to prosecution by Congress. Similarly, in Sinclair v. United States, the Court allowed a committee to question an oil executive, including on matters pertaining to pending criminal proceedings involving that executive. 279 U.S. 263, 290–91, 294–95 (1929). The proceedings determining the oil executive’s liability or innocence, however, were being conducted by an entirely separate branch: the Article III judiciary.
The Court has upheld some congressional investigations that incidentally uncover unlawful action by private citizens in part because private individuals cannot be punished by Congress, but may be prosecuted by the executive branch and then face trial before an independent judiciary. Cf. Kilbourn, 103 U.S. at 182 (the Constitution requires that prosecutions of private individuals proceed by “a trial in which the rights of the party shall be decided by a tribunal appointed by law, which tribunal is to be governed by rules of law previously established”). The majority does not explain why precedents about union presidents and oil executives would apply to the President when the Constitution provides a wholly separate mechanism for Congress to impeach, to try, and, if convicted, to remove the President from office.
Importantly, the majority does not cite a single case in which the Court has upheld a congressional committee’s investigation into the past illegality of an impeachable official
power of investigation.” (quoting Bailey v. Drexel Furniture Co., 259 U.S. 20, 37 (1922))).

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for a legislative purpose. In sharp contrast to private individuals, Congress possesses not only legislative but also judicial powers over officials amenable to impeachment. This is a notable and important exception to the separation of powers—vesting non-legislative powers in the House and Senate for the limited purpose of checking the actions of certain high officials. When a legislative investigation turns toward the wrongdoing of the President or any impeachable official, it has never been treated as merely incidental to a legislative purpose. Such investigations require the House to exercise the solemn powers of the “NATIONAL INQUEST,” The Federalist No. 65, at 338, with all of the procedural protections and accountability that accompany the decision to target a high official.
Indeed, in the one case dealing with a subpoena to the President for legislative purposes, our court did not ask whether the Senate Select Committee had a valid legislative purpose in investigating the events surrounding the Watergate break-in. See Senate Select, 498 F.2d at 732 (“[T]he need for the tapes premised solely on [Congress’s] asserted power to investigate and inform cannot justify enforcement of the [Select] Committee’s subpoena.”). We concluded instead that a legislative purpose could not justify demanding the President’s materials “in the peculiar circumstances of this case, including the subsequent and on-going investigation of the House Judiciary Committee.” Id. at 733. As our court explained:
[T]he House Committee on the Judiciary has begun an inquiry into presidential impeachment . . . .
The sufficiency of the [Select] Committee’s showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the

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performance of its legislative functions. There is a clear difference between Congress’s legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events.
Id. at 732. Thus, we carefully distinguished legislative tasks from grand jury or similar functions. When the House had already authorized and was pursuing impeachment proceedings, we found that the Senate Select Committee’s legislative need was “too attenuated and too tangential to its functions to permit a judicial judgment that the President is required to comply with the Committee’s subpoena.” Id. at 733.
Similarly here, the questions of illegal conduct and interest in reconstructing specific financial transactions of the President are “too attenuated and too tangential” to the Oversight Committee’s legislative purposes. Id. The parallels between our case and Senate Select continue to unfold, as some type of “impeachment inquiry” against the President has been invoked in the House. See, e.g., Letter from Rep. Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence et al., to Rudolph Giuliani (Sept. 30, 2019) (transmitting subpoena for the President’s papers “[p]ursuant to the House of Representatives’ impeachment inquiry”).
Other cases involving congressional investigations of public officials confirm the distinction between impeachment and legislative purposes and demonstrate the caution with which the Court has ensured Congress is not pursuing

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impeachable offenses in a legislative inquiry. For example, in McGrain, the Supreme Court upheld an investigation of the Department of Justice only after determining that there was no targeted inquiry into unlawful action or allegations of impeachable offenses. The Senate resolution sought information about “the administration of the Department of Justice—whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties.” McGrain, 273 U.S. at 177. While the resolution mentioned Attorney General Daugherty, the Court emphasized that the Senate was not “attempting or intending to try the Attorney General at its bar or before its committee for any crime or wrongdoing.” Id. at 179–80. It was essential to the Court’s decision that the investigation did not target the unlawful behavior of the Attorney General. See id. at 178–80.
The majority draws a different “lesson” from McGrain: “that an investigation may properly focus on one individual if that individual’s conduct offers a valid point of departure for remedial legislation.” Maj. Op. 31. The majority places emphasis on the Court’s statement, “[n]or do we think it a valid objection to the investigation that it might possibly disclose crime or wrongdoing on [the Attorney General’s] part.” McGrain, 273 U.S. at 179–80. Yet the Court also stressed that Congress was not targeting the unlawful behavior of an impeachable official and that “[i]t is not as if an inadmissible or unlawful object were affirmatively and definitely avowed.” Id. at 180. In McGrain, the Court determined that the inquiry at issue was a legislative one, and specifically did not target “crime or wrongdoing.”16 Id. Thus, the majority cannot rely on
16 The Supreme Court in McGrain did not question the legal principle articulated by the district court that to investigate the illegal conduct

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McGrain for its novel holding that Congress can investigate illegal conduct of an impeachable official pursuant to the legislative power.
Similarly, in Kilbourn, the Court invalidated a subpoena against the Secretary of the Navy because it lacked a legitimate legislative purpose, while noting that “the whole aspect of the case would have been changed” if the investigation related to impeachment. 103 U.S. at 193. No purpose of impeachment could be found, however, from the preamble characterizing the Secretary of the Navy’s conduct as “improvident.” Id. The Court concluded that “the absence of any words implying suspicion of criminality repel the idea of such [impeachment] purpose, for the secretary could only be impeached for ‘high crimes and misdemeanors.’” Id. In McGrain and Kilbourn, the Court allows Congress some leeway in its legislative investigations so long as it is not seeking to use the legislative power to circumvent the impeachment process.
By contrast, the gravamen of the Oversight Committee’s investigation in this case is the President’s wrongdoing. The Committee has “affirmatively and definitely avowed,” McGrain, 273 U.S. at 180, its suspicions of criminality against the President. As we recognized in Senate Select, such inquiries are outside the legislative power in part because they pertain to subjects proper to an impeachment proceeding in the House, which like a grand jury must assess whether “certain named
of the Attorney General would be an exercise of the judicial power. But see Maj. Op. 48 (contending the Supreme Court rejected the district court’s reasoning in McGrain). Instead, the Supreme Court simply disagreed with the district court’s characterization of the proceedings, which were not about the wrongdoing of the Attorney General but the administration of the Department of Justice as a whole. “[W]hen the proceedings are rightly interpreted, [ ] the object of the investigation . . . was to obtain information for legislative purposes.” McGrain, 273 U.S. at 177.

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individuals did or did not commit specific crimes.” 498 F.2d at 732. The majority’s conclusion is inconsistent with our precedents, which confirm that investigations of the illegal conduct of an impeachable official cannot be pursued through the legislative power.
***
This subpoena goes beyond the legislative power precisely because it seeks to reconstruct whether the President broke the law. The Constitution creates a wholly separate impeachment power for such inquiries. The majority implicitly collapses these distinct powers when it concludes that the Committee’s “interest in determining whether and how illegal conduct has occurred . . . is in direct furtherance of its legislative purpose.” Maj. Op. 31. Yet the legislative and impeachment powers are not interchangeable. Congress, the President, and the courts have consistently maintained a careful line between these distinct powers. Thus, I would find that this subpoena exceeds the legislative power of Congress because it seeks to uncover wrongdoing by the President.
IV.
By collapsing the distinction between Congress’s legislative and impeachment powers, the majority’s decision has serious consequences for the separation of powers. The decision today expands the legislative power beyond constitutional boundaries, calling into question our precedents for reviewing the scope of congressional investigations; interpreting the legislative power of Congress to subsume the impeachment power; and permitting serious encroachments on the executive branch. For the majority, the fact that Congress seeks the President’s papers is just a “twist” on the history of congressional investigations. Maj. Op. 65. In our government of three separate and co-equal departments, the targeting of the

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President in a congressional subpoena seeking evidence of illegal conduct is no mere “twist,” but the whole plot.
A.
At bottom, the majority and I disagree about the meaning of the legislative power and whether Congress can use this power to conduct investigations of illegal conduct by the President. Yet the framework employed by the majority both decides too little and too much. To begin with, even though the majority determines that the House has the power to issue this subpoena, our precedents require making a separate inquiry regarding the scope of the Committee’s delegated authority.17 The majority begins by recognizing as much: “it matters not whether the Constitution would give Congress authority to issue a subpoena if Congress has given the issuing committee no such authority.” Maj. Op. 18. The majority, however, collapses this two-part inquiry by concluding that “[b]ecause Congress already possesses—in fact, has previously exercised, see supra at 16–17—the authority to subpoena Presidents and their information, nothing in the House Rules could in any way ‘alter the balance between’ the two political branches of government.” Id. at 59–60 (quoting Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991)). The only evidence presented to support the conclusion that Congress possesses this authority is a citation to the majority’s analysis—which, as discussed above, fails to provide a single historical example of a
17 Because I conclude that Congress lacks the authority to issue this subpoena pursuant to the legislative power, it follows that the House could not delegate such authority to the Oversight Committee. See, e.g., Rumely, 345 U.S. at 42–43 (in assessing validity of congressional investigation, court must determine “whether Congress had the power to confer upon the committee the authority which it claimed”); Kilbourn, 103 U.S. at 196 (committee has “no lawful authority” to investigate if authorizing resolution is “in excess of the power conferred on [the House] by the Constitution”).

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successful subpoena to investigate a president for legislative purposes. Instead, the majority stitches together a few examples of subpoenas that issued to other officials, investigations of agency administration, presidents voluntarily sharing information with Congress, and one case from our court invalidating the only similar subpoena, which was issued to President Nixon during the Watergate investigations. Id. at 16–17; see also Senate Select, 498 F.2d at 733. On this flimsy foundation, the majority concludes that it cannot scrutinize the House Rules “absent a substantial constitutional question pertaining to the House’s legislative power.” Maj. Op. 63.
This conclusion is unsupported by the Supreme Court’s decisions in this area, which have required courts not only to consider the scope of legislative power possessed by the House or Senate as a whole, but to inquire specifically whether that power has been delegated to a particular Committee. See United States v. Rumely, 345 U.S. 41, 42–43 (1953) (“This issue—whether the committee was authorized to exact the information which the witness withheld—must first be settled before we may consider whether Congress had the power to confer upon the committee the authority which it claimed.”); Watkins, 354 U.S. at 201 (“An essential premise . . . is that the House or Senate shall have instructed the committee members on what they are to do with the power delegated to them.”). This delegation of authority has separate importance because, as the Court has admonished, Congress should not separate power from responsibility. Watkins, 354 U.S. at 215.
The scope of delegation particularly matters when Congress seeks to investigate a co-equal branch of government. Requiring a clear statement creates an important form of accountability by giving notice to the executive branch. Accordingly, “[w]henever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated

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its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits.” Rumely, 345 U.S. at 46. We have applied this rule with special force in oversight investigations: “[T]he courts have adopted the policy of construing such resolutions of authority narrowly, in order to obviate the necessity of passing on serious constitutional questions.” Tobin v. United States, 306 F.2d 270, 274–75 (D.C. Cir. 1962).
Moreover, “[o]ut of respect for the separation of powers and the unique constitutional position of the President,” the Court requires “an express statement by Congress” before subjecting the President to legislative restrictions and oversight. Franklin v. Massachusetts, 505 U.S. 788, 800–01 (1992); see also Armstrong, 924 F.2d at 289. These longstanding interpretive principles recognize that congressional encroachments upon the President raise serious constitutional questions, and courts should not reach out to decide such questions unless Congress squarely raises the issue.18 One might say Congress does not hide presidents in
18 The ordinary analysis of congressional authorization is somewhat complicated in this case because, after oral argument, the House enacted a resolution ratifying “all current and future investigations, as well as all subpoenas previously issued or to be issued . . . to [inter alia] the President in his personal or official capacity.” H.R. Res. 507, 116th Cong. (July 24, 2019). The majority, however, does not rely on this Resolution to provide a clear statement, but merely to “confirm” the plain meaning of the House Rules, because all the parties agree that the Resolution does not expand the Committee’s jurisdiction. Importantly, the majority properly expresses skepticism and leaves open the question of whether such a resolution can indeed provide a post hoc expansion of a committee’s subpoena authority. Maj. Op. 63–64. I similarly decline to speculate about the validity of a resolution that reaches both forwards and backwards in time to authorize investigations of the President. See Dombrowski v.

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mouseholes. Cf. Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).
Thus, even on the majority’s assertion that the House possesses the legislative power to issue this subpoena, the Committee might not. The House Rules may upset the balance of power by failing to provide notice to the President.19 While courts should properly refrain from micromanaging the House Rules, our precedents require reviewing whether Congress has taken responsibility for pushing up against constitutional limitations. See Watkins, 354 U.S. at 205–06. In the novel circumstances of this case, the majority has eviscerated this longstanding principle and essentially collapsed the broader question of constitutional power and the question of a committee’s delegated authority.
Burbank, 358 F.2d 821, 825 (D.C. Cir. 1966) (“Whether this apparently approving action by the full Subcommittee would serve as a nunc pro tunc ratification and consequent validation of the subpoena for all purposes, we need not decide.”), rev’d in part on other grounds sub nom. Dombrowski v. Eastland, 387 U.S. 82 (1967).
19 Even without applying the clear statement rule, the majority’s “natural reading” of the House Rules to include this subpoena is hardly natural, given that for over 200 years the House has declined to investigate the wrongdoing of the President without clearly designating a special committee or resolution for that purpose. That historical backdrop casts significant doubt on the majority’s interpretation that a rule making no reference to the President should be read to encompass the President. See Tobin, 306 F.2d at 275 (“[I]f Congress had intended the Judiciary Committee to conduct such a novel investigation it would have spelled out this intention in words more explicit than the general terms found in the authorizing resolutions under consideration.”); Barenblatt, 360 U.S. at 117–18 (noting that a vague House rule may acquire content through its “long history” and the “course of congressional actions”).

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Another difficulty with the majority’s approach is that it focuses on the legislative power in isolation, and therefore proceeds to determine the contours of what legislation could be had in an area rife with constitutional concerns. See, e.g., Letter From Laurence H. Silberman, Acting Att’y Gen., to Rep. Howard W. Cannon, Chairman, H. Comm. on Rules and Administration 4–5 (Sept. 20, 1974) (construing conflicts of interest legislation governing the “executive branch” to apply to the President raises “serious questions of constitutionality” as such legislation could “disable him from performing some of the functions required by the Constitution or [] establish a qualification for his serving as President (to wit, elimination of financial conflicts) beyond those contained in the Constitution”). Responding in part to arguments from the appellants, the majority marches through a very detailed and, in my view, unnecessary analysis of what specific forms of legislation might be possible in this area. Maj. Op. 36–45.
The majority concludes that amendments to “the Ethics in Government Act . . . 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” would pass constitutional muster. Id. at 38–39. The majority also affirms that some category of theoretical laws requiring presidents to disclose evidence of potential conflicts of interest and other financial matters constitute a “less burdensome species of laws” than similarly hypothetical laws requiring presidents to divest assets or recuse from conflicted matters. Id. at 38. Based on this analysis of the relative constitutionality of as-yet-unenacted laws, the majority informs us that we can comfortably conclude such financial disclosure laws of the future would not “prevent[] the [President] from accomplishing [his] constitutionally assigned functions.” Id. at 39–40 (alterations in original) (quoting Nixon

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v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977)). More troubling still, the majority declares that a statute “facilitating the disclosure of” any payment of “foreign emoluments” to the President would “surely . . . lie[] within constitutional limits,” id. at 40, notwithstanding the fact that the scope of the Foreign Emoluments Clause is an unresolved question that is currently pending before this court. See Blumenthal v. Trump, No. 195237, filed Sept. 4. 2019 (D.C. Cir.). The majority passes on the constitutionality of a range of different legislative possibilities without a single enacted statute before us.
In the absence of any statute that has run the Article I, section 7, gauntlet, such determinations are advisory at best. The Article III judicial power extends to deciding cases, not applying “statutory litmus test[s],” Maj. Op. 37. From the Founding Era to the present, our courts have refrained from opining on the constitutionality of legal issues outside of a live case or controversy. See Chamber of Commerce v. EPA, 642 F.3d 192, 208 (D.C. Cir. 2011) (“To seek judicial review of . . . a contemplated-but-not-yet-enacted [statute] is to ask the court for an advisory opinion in connection with an event that may never come to pass.”); Letter from Chief Justice John Jay and the Associate Justices of the Supreme Court to President George Washington (Aug. 8, 1793) (declining the President’s request to issue an advisory opinion). I would avoid passing on such questions and simply recognize that an investigation into the illegal conduct of the President is outside the legislative power altogether because it belongs to the House’s power of impeachment for high crimes and misdemeanors.
B.
By allowing the Oversight Committee to use the legislative power to circumvent the impeachment power, the majority substantially disrupts the careful balance between Congress and the other departments. The text and structure of the Constitution, along with unbroken historical practice, make

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plain the importance of maintaining a line between these distinct investigative powers—one ancillary to the legislative power, and the other an exercise of the House’s judicial power of impeachment. The concerns underlying the distinction are fundamental and no mere anachronism.
To begin with, permitting this subpoena allows Congress to use its substantial legislative power to gather information that may be used for impeachment without the protections inherent in an impeachment investigation or proceeding. Impeachable officials are protected from ill-considered exercises of this power through careful constitutional design. The Constitution divides the impeachment and removal powers between the House and Senate, U.S. CONST. art. I, § 2, cl. 5; art. I, § 3, cl. 6; limits the scope of impeachable offenses, U.S. CONST. art. II, § 4; and provides for limited punishments upon conviction by the Senate, U.S. CONST. art. I, § 3, cl. 7. Senate trials of impeachment are an exercise of judicial power and have always been understood to include constitutional and common law protections similar to what might be available in the judicial context. Marshall, 243 U.S. at 546–48; Kilbourn, 103 U.S. at 191; Jefferson’s Manual §§ 592, 619 (“The trial . . . differs not in essentials from criminal prosecutions before inferior courts.”); 3 Hinds § 2486 (“[S]uch rules must be observed as are essential to justice.” (quoting Op. Att’y Gen. of May 9, 1796)); 2 Story § 796 (“[T]he same rules of evidence, the same legal notions of crimes and punishments prevail.”).
Allowing the use of legislative power to reach illegal conduct undermines the protections afforded to officials being investigated for impeachable offenses. These protections are essential given the obvious harms to the reputation and honor of officials targeted through the very public process of impeachment. See The Federalist No. 65, at 338 (“The delicacy and magnitude of a trust which so deeply concerns the political

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reputation and existence of every man engaged in the administration of public affairs, speak for themselves.”).
Moreover, expanding the legislative power to include investigations of illegal conduct eviscerates Congress’s accountability for impeachment. Such accountability is an essential protection for the People, who elect the President as well as Members of Congress, and thus have an undeniable stake in any congressional targeting of the Chief Executive and his chosen officers. The majority allows Congress to evade public accountability by permitting investigations of the President for illegal conduct outside the “grave and weighty” impeachment process. See Maj. Op. 47. With impeachment, the Constitution unites power with responsibility. Impeachment and removal are Congress’s “sword of Damocles,” but the House and Senate must pay a political price for using these powers. William H. Rehnquist, Grand Inquests 270 (1992); see also Gerhardt, The Federal Impeachment Process 57 (“[T]he framers deliberately made the impeachment process cumbersome in order to make impeachment difficult to achieve.”); O’Sullivan, Impeachment and the Independent Counsel Statute, 86 GEO. L.J. at 2229–30 (“The Framers intentionally designed the impeachment device to make its successful invocation difficult in order to ensure that civil officers would not be unduly dependent upon the legislative branch.”).
The House and Senate have consistently maintained the importance of this responsibility and explicitly invoked the impeachment power when pursuing official wrongdoing. See, e.g., 3 Hinds § 2400 (opening Johnson impeachment inquiry); H.R. Res. 803, 93d Cong. (opening Nixon impeachment inquiry); H.R. Res. 581, 105th Cong. (opening Clinton impeachment inquiry). Presidents since George Washington have declined demands to produce documents for legislative purposes, while acknowledging that the same request pursuant

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to the impeachment power might be treated differently. See supra Part II; see also Position of the Executive Department Regarding Investigative Reports, 40 Op. Att’y Gen. 45, 51 (1941) (Attorney General Robert Jackson declining to provide information to Congress about pending FBI investigations, but noting that “pertinent information would be supplied in impeachment proceedings”).20
Overlooking the special procedures and accountability attendant to an impeachment proceeding, the district court conflated the legislative and judicial powers of the House. With no support in the text, structure, or history of the Constitution, the district court cited the impeachment power to bootstrap a more expansive legislative power to investigate individual wrongdoing: “It is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.” Trump, 380 F. Supp. 3d at 95.
The district court suggests that the greater power of impeachment and removal must include the lesser legislative power to investigate illegal actions by the President. Yet the Constitution is not designed this way. The greater power does not include the lesser in a Constitution that explicitly vests Congress with limited and enumerated legislative powers and
20 As the Committee has not relied on the impeachment power for this subpoena, I do not consider whether or how this court would assess such a demand for documents under the impeachment power. I simply note that Congress, the Executive, and the courts have maintained that requests under the legislative and impeachment powers may be treated differently. See, e.g., Kilbourn, 103 U.S. at 193 (were the investigation related to impeachment, “the whole aspect of the case would have been changed”).

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then provides for a wholly separate impeachment power with different objects, processes, and limits. It is not only fathomable, but essential, that the impeachment and legislative powers remain distinct. The power of impeachment does not somehow expand the power to investigate for legislative purposes.
The majority similarly recognizes no separation between the House’s judicial and legislative powers. But once the boundary between the legislative and judicial powers is breached, it is hard to discern any limit to the reach of the legislative power of investigation. Perhaps the functionalist approach to reading the Constitution has obscured the essential core of the constitutional powers vested in each of the three branches. The legislative power focuses on prospective, general rules for governing society. One thing it has never been is the power to reconstruct and punish individual actions, whether of private individuals or public officials. Private and public individuals are protected by the Bill of Attainder Clauses, U.S. CONST. art. I, § 9, cl. 3; art. I, § 10, cl. 1, and Congress may pursue the high crimes and misdemeanors of impeachable officials exclusively through the impeachment power, U.S. CONST. art. I, § 2, cl. 5; art. I, § 3, cl. 6.
Thus, it should be startling when the majority asserts it is a “quintessentially legislative judgment that some concerns about potential misconduct are better addressed through . . . legislation than impeachment.” Maj. Op. 49. The majority argues in effect that Congress must be able to choose to target the wrongdoing of the President through its legislative powers, instead of impeachment. If this does not quite sanction a bill of attainder, it comes awfully close. The majority’s assertions that Congress can simply choose between legislation and impeachment when the President’s wrongdoing is at issue are unsupported by any constitutional provision and provide no rebuttal to the remarkably consistent historical understanding,

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which demonstrates that both the executive branch and Congress, despite their conflicting interests, have steadfastly maintained the necessity of pursuing wrongdoing of public officials through impeachment.
The majority attempts to bolster its argument by referencing a functional separation of powers and citing to interpretations of Madison’s statement in Federalist 47 that the separation of powers “do[es] not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” Id. at 43 (citing Clinton v. Jones, 520 U.S. 681, 702–03 (1997), and Nixon v. Adm’r of Gen. Servs., 433 U.S. at 442–43). Yet Madison’s words are being taken out of context. In Federalist 47, Madison makes this statement when interpreting Montesquieu’s theory of separation of powers. See The Federalist No. 47, at 251 (James Madison). Madison’s primary point is that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty,” than the maxim that “the legislative, executive, and judiciary departments, ought to be separate and distinct.” Id. at 249. The general rule of the Constitution is separation of powers—but the Constitution includes certain specific exceptions to the general rule, such as requiring the advice and consent of the Senate in the appointment of executive officers, or placing the judicial power of impeachment in the House and Senate. These exceptions reinforce the system of checks and balances and “provide some practical security for each, against the invasion of the others.” The Federalist No. 48, at 256–58 (James Madison). Madison explains at length the deliberate structure of the Constitution, which permits overlap or sharing of powers for limited purposes without collapsing any one branch into dependence on another.
The exceptions to the separation of powers, however, have never been mistaken as a rule of flexible blending of powers

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for the sake of convenience or expediency. To the contrary, the Court has read the exceptions narrowly and interpreted them to reinforce the constitutional limits that separate the three powers of the federal government. See Myers, 272 U.S. at 116 (“[T]he reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires.”). The majority alleges that this dissent “would reorder the very structure of the Constitution,” Maj. Op. 49, but provides no analysis of the Constitution to support its assertion. Similarly, the majority offers no evidence from the original meaning, historical practice, or our judicial precedents for its contrived claim that Congress can simply choose to use either the legislative or impeachment powers when investigating the President for violations of the law.
Instead, the majority chooses to march out a parade of horribles about what might happen if Congress were unable to investigate illegal conduct under its legislative power. Id. at 46–47, 48–49. Contrary to the majority’s ahistorical alarm, maintaining the separation of the legislative and impeachment powers will in no way prevent the House from continuing to pursue remedial legislation. I do not question the longstanding recognition that Congress possesses the ability to investigate as necessary and proper to effectuate the legislative power. Such investigations can provide important and salutary oversight of administration of the laws and study the basis for new legislation. Yet targeting officials for impeachable offenses must proceed, and always has proceeded, through the impeachment power.
Thus, there is no “Hobson’s Choice” here between impeachment or nothing, id. at 49, because whether the House moves forward with impeachment or not, Congress retains all of the legislative powers it has under the Constitution to

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introduce and enact legislation. The fact that Congress cannot reconstruct “whether and how” the President violated the law as part of the legislative power does not “strip[] Congress of its power to legislate.” Id. Indeed, frustration with lack of access to documents might prompt Congress to attempt legislation that requires such disclosure in the future, and similar legislation has already been proposed. See, e.g., H.R. 1, 116th Cong., §§ 8012, 8013 (2019) (increasing stringency of presidential corporate financial disclosure requirements). To treat an inquisitorial power as essential to legislation is to misunderstand the legislative power in the context of our constitutional system of separated powers. The Committee cannot use a legislative purpose to circumvent the House’s power to serve as the grand inquest of the nation when investigating the illegal conduct of the President.
C.
Allowing the legislative power to reach investigation of impeachable offenses provides Congress with a new bludgeon against the Executive, making it all too easy for Congress to encroach on the executive branch by targeting the President and his subordinates through legislative inquiries. See Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982) (a “special solicitude [is] due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers”). The majority incorrectly asserts “no party argues that compliance with the subpoena would impair the President’s execution of the Article II power.” Maj. Op. 46; see also id. at 64–65. To the contrary, both the Trump plaintiffs and the Department of Justice argue that this subpoena may “distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.” Appellants Reply Br. 3 (quoting Fitzgerald, 457 U.S. at 753); see also DOJ Br. 6 (“[C]ongressional committees may issue successive subpoenas in waves, making far-reaching

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demands that harry the President and distract his attention.” (citing Rumely, 345 U.S. at 46)). The majority repeatedly states that the precedents allow Congress to choose between the legislative and impeachment powers, but only where “no intrusion on the President’s execution of his official duties is alleged.” Maj. Op. 46; see also id. at 45. Yet contrary to the majority’s assertions, both the Department of Justice and the President have alleged that the subpoena encroaches on the executive power, which substantially undermines the majority’s premise.
By allowing any claim of a remedial legislative purpose to justify an investigation into the “illegal conduct” of the President, the majority effectively expands the already expansive legislative power. Cf. Brewster v. United States, 255 F.2d 899, 901 (D.C. Cir. 1958) (rejecting an interpretation that “for all practical purposes, would give the Committee on Government Operations jurisdiction to investigate virtually every activity engaged in by every person in the land”). Pursuant to its legislative powers, Congress already has substantial leeway to investigate how executive officers are administering their duties. Yet allowing Congress to use the legislative power to investigate individual officials for unlawful conduct takes “oversight” to a whole new level. The Constitution provides in effect that Congress cannot reach such allegations by “side-blows,” Cong. Globe, 29th Cong., 1st Sess. 641 (1846) (statement of Rep. Adams), but must instead proceed through impeachment. Cf. Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia, J., dissenting) (“How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds . . . simply to trigger a debilitating criminal investigation of the Chief Executive.”).
Unhindered by the constitutional mechanisms of accountability, Congress can expand its incursions against the

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Executive. As Madison cautioned, Congress’s “constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” The Federalist No. 48, at 257; see also Zivotofsky, 135 S. Ct. at 2096 (“It was an improper act for Congress to ‘aggrandize its power at the expense of another branch.’” (quoting Freytag v. Comm’r, 501 U.S. 868, 878 (1991))).
The majority takes a narrow view of potential harms to the executive branch—suggesting that such harms result largely from the inconvenience of the President having to produce documents or make copies himself. Maj. Op. 34–35, 65. Yet using the legislative power to target and uncover illegal conduct by executive officials provides Congress with an additional form of control over executive officials who otherwise must be within the direction and control of the President. See U.S. CONST. art. II, § 1, cls. 1, 8; art. II, § 3; Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 493 (2010) (invalidating restrictions on the removal power that would “impair[]” the President’s “ability to execute the laws [] by holding his subordinates accountable for their conduct”); Myers, 272 U.S. at 163–64 (“[A]rticle 2 grants to the President the executive power of the government, i. e., the general administrative control of those executing the laws.”). The President cannot “take Care that the Laws be faithfully executed,” U.S. CONST. art. II, § 3, if his subordinates are exposed to inquisitorial jeopardy through the ordinary legislative power.
Under the majority’s decision, Congress may choose to launch investigations of illegal conduct under the legislative power—a choice that under the current rules may be implemented by a single committee chairman without the accountability and deliberation that precede impeachment. And

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while this case deals only with a single subpoena, the recognition of a wholly unprecedented power to investigate shifts the balance between the branches and may unleash additional subpoenas against the President or his subordinates, which “may, like a flicking left jab, confound the Executive Branch in dealing with Congress.” In re Sealed Case, 838 F.2d 476, 508 (D.C. Cir. 1988) (Silberman, J.), rev’d sub nom. Morrison v. Olson, 487 U.S. 654 (1988).
While congressional oversight investigations may probe a wide range of matters and often are no picnic for executive officials, such investigations may proceed ancillary to the legislative power. Allegations and reconstructions of illegal conduct, however, are an entirely different matter. If a congressional committee can invoke a legislative purpose to subpoena information targeting unlawful actions by the President, imagine the peril for other officers who lack the ability to fend off such requests and cannot depend on the visibility and public mandate that follow the President. Cf. Morrison, 487 U.S. at 713 (Scalia, J., dissenting) (“[A]s for the President’s high-level assistants, who typically have no political base of support, it is [] utterly unrealistic to think that they will not be intimidated by this prospect [of an independent counsel], and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected . . . . It deeply wounds the President, by substantially reducing the President’s ability to protect himself and his staff.”). The prospect of a Congress that can use the legislative power, rather than impeachment, to reach illegal conduct of executive officers could very well “weaken the Presidency by reducing the zeal of his staff.” Id.
***
Allowing Congress to investigate impeachable officials for suspicions of criminality pursuant to the legislative power has serious consequences for the separation of powers because

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it allows Congress to escape the responsibility and accountability inherent in impeachment proceedings. Congressional aggrandizement in this case comes at the expense of the Executive, which no longer can rely on procedural protections when Congress, or a single committee chairman, determines to investigate unlawful activity of the President. The House’s overreaching also comes at the expense of the People, who established a Constitution with specific processes for electing both Members of Congress and the President and which provides only one way for Congress to punish and remove the President.
V.
The familiar tale recounted by the majority describes a general arc of expanding legislative powers and the accompanying recognition of Congress’s power to investigate ancillary to those powers. Yet the more specific story here pertains to the fundamental separation between the legislative and judicial powers of Congress. When the House chooses to investigate the President for alleged violations of the laws and the Constitution, it must proceed through impeachment, an exceptional and solemn exercise of judicial power established as a separate check on public officials. This constitutional principle was articulated by George Washington in 1796 and by the House in 1998: “The Constitution contains a single procedure for Congress to address the fitness for office of the President of the United States—impeachment by the House, and subsequent trial by the Senate.” H.R. Rep. No. 105-830, at 137 (report of the House Judiciary Committee recommending articles of impeachment).
The Constitution and our historical practice draw a consistent line between the legislative and judicial powers of Congress. The majority crosses this boundary for the first time by upholding this subpoena investigating the illegal conduct of the President under the legislative power. I respectfully dissent.