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 
2

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. 
3

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, thatstatute 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 
4

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
5

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 
6

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 
7

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 
8

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 
9

(“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 
10

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 
12

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.
13

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 
14

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 
15

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 
16

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 
17

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 
18

“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); 
19

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 
20

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
21

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 
22

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 
23

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.
24

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”).
25

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 
26

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. 
27

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 
28

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 
29

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 
30

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 
31

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 
32

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 
33

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”). 
34

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, 
35

“[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
36

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 
37

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.
38

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 
39

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 
40

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 
41

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, 
42

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, 
43

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 
44

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 
45

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 
46

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.
47

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 
48

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 
49

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.
50

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]
51

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 
52

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 
53

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 
54

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 
55

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 
56

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 
57

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 
58

[‘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. 
59

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 
60

“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.
61

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 
62

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. 
63

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 
64

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 usis 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. 
65

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 
66

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. 
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 
2

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 
3

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)).
4

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.”).
5

“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.
6

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 
7

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.”). 
8

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 
9

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 
10

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).
11

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. 
12

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 
13

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”). 
14

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 
15

“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 
16

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. 
17

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 
18

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.
19

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. 
20

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 
21

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).
22

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 
23

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). 
24

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 
25

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). 
26

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.”). 
27

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 
28

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 
29

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 
30

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).
31

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.
32

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 
33

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).
34

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-
35

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.
36

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
37

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 
38

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 
39

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 
40

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 
41

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 
42

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 
43

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 
44

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 
45

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 
46

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))).
47

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 
48

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 
49

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 
50

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. 
51

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 
52

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”).
53

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 
54

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. 
55

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”). 
56

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 
57

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. 19-

5237, 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 
58

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 
59

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 
60

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”). 
61

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, 
62

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 
63

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 
64

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 Congressto 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 
65

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 
66

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 
67

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 
68

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.