1 (Slip Opinion) OCTOBER TERM, 2019

Syllabus

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

## SUPREME COURT OF THE UNITED STATES

Syllabus

TRUMP ET AL

. v . MAZARS USA, LLP, ET AL

.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19–715. Argued May 12, 2020—Decided July 9, 2020*
In April 2019, three committees of the U. S. House of Representatives

issued four subpoenas seeking inform ation about the finances of Pres

ident Donald J. Trump, his childre n, and affiliated businesses. The House Committee on Financial Services issued a subpoena to Deutsche Bank seeking any document related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and su spicious activity identified by Deutsche Bank. It issued a second subpoena to Capital One for similar information. The Permanent Select Committee on Intelligence issued a subpoena to Deutsche Bank that mirrored the subpoena issued by the Financial Services Committee. And the House Committee on Oversight and Reform issued a subp oena to the President’s personal accounting firm, Mazars USA, LLP, demanding information related to the President and several affiliated bu sinesses. Although each of the committees sought overlapping sets of financial documents, each sup

plied different justifications for the requests, explaining that the infor

mation would help guide legislativ e reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elec

tions. Petitioners—the President in his personal capacity, along with his children and affiliated businesses—contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia ( Mazars , No. 19–715) and the subpoenas issued by the Fi

nancial Services and Intelligence Co mmittees in the Southern District of New York ( Deutsche Bank , No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose

——————

* Together with 19–760, Trump et al. v. Deutsche Bank AG et al. , on certiorari to the United States Cour t of Appeals for the Second Circuit.2 TRUMP v. MAZARS USA, LLP

Syllabus
and violated the separation of powers . The President did not, however, argue that any of the requested re cords were protected by executive privilege.

In Mazars , the District Court granted judgment for the House and the D. C. Circuit affirmed, findin g that the subpoena issued by the Oversight Committee served a valid legislative purpose because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates. In Deutsche Bank , the District Court denied a pr eliminary injunction and the Sec

ond Circuit affirmed in substantial part, holding that the Intelligence Committee properly issued its subpoen a to Deutsche Bank as part of an investigation into alleged foreign influence in the U. S. political pro

cess, which could inform legislation to strengthen national security and combat foreign meddling. The court also concluded that the sub

poenas issued by the Financial Se rvices Committee to Deutsche Bank and Capital One were adequately related to potential legislation on money laundering, terrorist financing, and the global movement of il

licit funds through the real estate market.
Held : The courts below did not take adequate account of the significant

separation of powers concerns im plicated by congressional subpoenas for the President’s information. Pp. 7–20. (a) Historically, disputes over congressional demands for presiden

tial documents have been resolved by the political branches through negotiation and compromise without involving this Court. The Court recognizes that this dispute is the fi rst of its kind to reach the Court; that such disputes can raise important issues concerning relations be

tween the branches; that similar disputes recur on a regular basis, in

cluding in the context of deeply partisan controversy; and that Con

gress and the Executive have no netheless managed for over two centuries to resolve these disput es among themselves without Su

preme Court guidance. Such longstanding practice “ ‘is a consideration of great weight’ ” in cases concerning “the allocation of power between [the] two elected branches of Govern ment,” and it imposes on the Court a duty of care to ensure that it does not needlessly disturb “the com

promises and working arrangements” reached by those branches. NLRB v. Noel Canning , 573 U. S. 513, 524–526 (quoting The Pocket Veto Case , 279 U. S. 655, 689). Pp. 7–11.

(b) Each House of Congress has the power “to secure needed infor

mation” in order to legislate. McGrain v. Daugherty , 273 U. S. 135, 161. This power is “indispensable” because, without information, Con

gress would be unable to legislate wisely or effectively. Watkins v. United States , 354 U. S. 178, 215. Because this power is “justified solely as an adjunct to the legislativ e process,” it is subject to several limitations. Id. , at 197. Most importantly, a congressional subpoena3 Cite as: 591 U. S. ____ (2020)

Syllabus

is valid only if it is “related to, an d in furtherance of, a legitimate task of the Congress.” Id. , at 187. The subpoena must serve a “valid legis

lative purpose.” Quinn v. United States , 349 U. S. 155, 161. Further

more, Congress may not issue a subp oena for the purpose of “law en

forcement,” because that power is assigned to the Executive and the Judiciary. Ibid . Finally, recipients of congressional subpoenas retain their constitutional rights and various privileges throughout the course of an investigation. Pp. 11–12. (c) The President contends, as d oes the Solicitor General on behalf of the United States, that congressi onal subpoenas for the President’s information should be evaluated under the standards set forth in United States v. Nixon , 418 U. S. 683, and Senate Select Committee on Presidential Campaign Activities v. Nixon
, 498 F. 2d 725, which would require the House to show that th e requested information satisfies a “demonstrated, specific need,” 418 U. S., at 713, and is “demonstrably critical” to a legislative purpose, 498 F. 2d, at 731. Nixon and Senate Select Committee, however, involved subpoenas for communications between the President and his close advisers, over which the President asserted executive privilege. Beca use executive privilege safeguards the public interest in candid, confid ential deliberations within the Ex

ecutive Branch, information subjec t to the privilege deserves “the greatest protection consistent with th e fair administration of justice.” 418 U. S., at 715. That protection should not be transplanted root and branch to cases involving nonprivile ged, private inform ation, which by definition does not implicate sensit ive Executive Branch deliberations. The standards proposed by the Pr esident and the Solicitor General— if applied outside the context of privileged information—would risk se

riously impeding Congress in carryin g out its responsibilities, giving short shrift to its important interest s in conducting inquiries to obtain information needed to legislate effectively. Pp. 12–14. (d) The approach proposed by th e House, which relies on precedents that did not involve the President’s papers, fails to take adequate ac

count of the significant separation of powers issues raised by congres

sional subpoenas for the President’ s information. The House’s ap

proach would leave essentially no lim its on the congressional power to subpoena the President’ s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggran dize itself at the President’s ex

pense. These separation of powe rs concerns are unmistakably impli

cated by the subpoenas here, which represent not a run-of-the-mill leg

islative effort but rather a clash between rival branches of government over records of intense political in terest for all involved. The interbranch conflict does not vanish simp ly because the subpoenas seek per

sonal papers or because the Presiden t sued in his personal capacity.4 TRUMP v. MAZARS USA, LLP

Syllabus
Nor are separation of powers concerns less palpable because the sub

poenas were issued to third parties. Pp. 14–18. (e) Neither side identifies an a pproach that adequately accounts for these weighty separation of powers concerns. A balanced approach is necessary, one that takes a “conside rable impression” from “the prac

tice of the government,” McCulloch v. Maryland , 4 Wheat. 316, 401, and “resist[s]” the “pressure inhere nt within each of the separate Branches to exceed the ou ter limits of its power,” INS v. Chadha , 462 U. S. 919, 951. In assessing whether a subpoena directed at the Pres

ident’s personal information is “relat ed to, and in furtherance of, a le

gitimate task of the Congress,” Watkins , 354 U. S., at 187, courts must take adequate account of the separati on of powers principles at stake, including both the signif icant legislative interests of Congress and the unique position of the President. Several special considerations info rm this analysis. First, courts should carefully assess whether th e asserted legislative purpose war

rants the significant step of involv ing the President and his papers. “ ‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoi ded whenever possible.” Cheney v. United States Dist. Court for D. C. , 542 U. S. 367, 389–390 (quoting Nixon , 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legi slative objective. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Con

gress’s legislative object ive. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney , 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and subs tantial, the better. That is par

ticularly true when Congress contemplates legislation that raises sen

sitive constitutional issues, such as legislation concerning the Presi

dency. Fourth, courts should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoin g relationship with the President and incentives to use subpoenas fo r institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. Pp. 18–20. No. 19–715, 940 F. 3d 710; No. 19–760, 943 F. 3d 627, vacated and re

manded.

R OBERTS , C. J., delivered the opinion of the Court, in which G INSBURG , B REYER , S OTOMAYOR , K AGAN , G ORSUCH , and K AVANAUGH , JJ., joined.5 Cite as: 591 U. S. ____ (2020)

Syllabus

T HOMAS , J., and A LITO , J., filed dissenting opinions._________________

_________________ 1 Cite as: 591 U. S. ____ (2020)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–715 and 19–760

DONALD J. TRUMP, ET AL ., PETITIONERS 19–715 v. MAZARS USA, LLP, ET AL

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

DONALD J. TRUMP, ET AL ., PETITIONERS 19–760 v. DEUTSCHE BANK AG, ET AL

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

C HIEF J USTICE R OBERTS delivered the opinion of the Court. Over the course of five days in April 2019, three commit

tees of the U. S. House of Representatives issued four sub

poenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. We have held that the House has authority under the Con

stitution to issue subpoenas to assist it in carrying out its legislative responsibilities. The House asserts that the fi

nancial information sought here—encompassing a decade’s worth of transactions by the President and his family—will help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S.2 TRUMP v. MAZARS USA, LLP

Opinion of the Court

elections. The President contends that the House lacked a valid legislative aim and inst ead sought these records to harass him, expose personal matters, and conduct law en

forcement activities beyond it s authority. The question pre

sented is whether the subpoenas exceed the authority of the House under the Constitution. We have never addressed a congressional subpoena for the President’s information. Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding, United States v. Burr , 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and earlier today we extended that ruling to state criminal pro

ceedings, Trump v. Vance
, ante , p. ___. Nearly fifty years ago, we held that a federal prosecutor could obtain infor

mation from a President despite assertions of executive privilege, United States v. Nixon , 418 U. S. 683 (1974), and more recently we ruled that a private litigant could subject a President to a damages suit and appropriate discovery ob

ligations in federal court, Clinton v. Jones , 520 U. S. 681 (1997). This case is different. Here the President’s information is sought not by prosecutors or private parties in connection with a particular judicial proceeding, but by committees of Congress that have set forth broad legislative objectives. Congress and the President—th e two political branches es

tablished by the Constitution—have an ongoing relation

ship that the Framers intended to feature both rivalry and reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison); Youngstown Sheet & Tube Co. v. Saw

yer , 343 U. S. 579, 635 (1952) (Jackson, J., concurring). That distinctive aspect necessa rily informs our analysis of the question before us.

I A Each of the three committees sought overlapping sets of3 Cite as: 591 U. S. ____ (2020)

Opinion of the Court financial documents, but each supplied different justifica

tions for the requests. The House Committee on Financial Services issued two subpoenas, both on April 11, 2019. App. 128, 154, 226. The first, issued to Deutsche Bank, seeks the financial infor

mation of the President, his children, their immediate fam

ily members, and several affiliated business entities. Spe

cifically, the subpoena seeks any document related to account activity, due diligence, foreign transactions, busi

ness statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank. The second, issued to Capital One, demands similar financial information with respect to more than a dozen business entities associated with the President. The Deutsche Bank subpoena requests materials from “2010 through the present,” and the Capital One subpoena covers “2016 through the present,” but both subpoenas impose no time limitations for certain documents, such as those con

nected to account openings and due diligence. Id., at 128, 155.

According to the House, the Financial Services Commit

tee issued these subpoenas pursuant to House Resolution 206, which called for “efforts to close loopholes that allow corruption, terrorism, and mone y laundering to infiltrate our country’s financial system.” H. Res. 206, 116th Cong., 1st Sess., 5 (Mar. 13, 2019). Such loopholes, the resolution explained, had allowed “illicit money, including from Rus

sian oligarchs,” to flow into the United States through “anonymous shell companies” using investments such as “luxury high-end real estate.” Id. , at 3. The House also invokes the oversight plan of the Financial Services Com

mittee, which stated that the Committee intends to review banking regulation and “examine the implementation, ef

fectiveness, and enforcement” of laws designed to prevent money laundering and the financing of terrorism.4 TRUMP v. MAZARS USA, LLP

Opinion of the Court

H. R. Rep. No. 116–40, p. 84 (2019). The plan further pro

vided that the Committee would “consider proposals to pre

vent the abuse of the financial system” and “address any vulnerabilities identified” in the real estate market. Id.
, at 85. On the same day as the Financial Services Committee, the Permanent Select Committee on Intelligence issued an identical subpoena to Deutsche Bank—albeit for different reasons. According to the House, the Intelligence Commit

tee subpoenaed Deutsche Bank as part of an investigation into foreign efforts to undermine the U. S. political process. Committee Chairman Adam Schiff had described that in

vestigation in a previous stat ement, explaining that the Committee was examining alleged attempts by Russia to influence the 2016 election; potential links between Russia and the President’s campaign; and whether the President and his associates had been compromised by foreign actors or interests. Press Releas e, House Permanent Select Com

mittee on Intelligence, Chairman Schiff Statement on House Intelligence Committee Investigation (Feb. 6, 2019). Chairman Schiff added that the Committee planned “to de

velop legislation and policy refo rms to ensure the U. S. gov

ernment is better positioned to counter future efforts to un

dermine our political process and national security.” Ibid. Four days after the Financial Services and Intelligence Committees, the House Committee on Oversight and Re

form issued another subpoena, this time to the President’s personal accounting firm, Mazars USA, LLP. The subpoena demanded information related to the President and several affiliated business entities from 2011 through 2018, includ

ing statements of financial condition, independent auditors’ reports, financial reports, underlying source documents, and communications between Mazars and the President or his businesses. The subpoena also requested all engage

ment agreements and contracts “[w]ithout regard to time.” App. to Pet. for Cert. in 19–715, p. 230.5 Cite as: 591 U. S. ____ (2020)

Opinion of the Court Chairman Elijah Cummings explained the basis for the subpoena in a memorandum to the Oversight Committee. According to the chairman, recent testimony by the Presi

dent’s former personal attorn ey Michael Cohen, along with several documents prepared by Mazars and supplied by Co

hen, raised questions about whether the President had ac

curately represented his financial affairs. Chairman Cum

mings asserted that the Commit tee had “full authority to investigate” whether the President: (1) “may have engaged in illegal conduct before and during his tenure in office,” (2) “has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,” (3) “is complying with the Emoluments Clauses of the Constitution,” and (4) “has accurately reported his finances to the Office of Government Ethics and other fede ral entities.” App. in No. 19–5142 (CADC), p. 107. “The Committee’s interest in these matters,” Chairman Cummings concluded, “informs its review of multiple laws and legislative proposals under our jurisdiction.” Ibid.

B Petitioners—the President in his personal capacity, along with his children and affiliated businesses—filed two suits challenging the subpoenas. They contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia ( Mazars , No. 19–715), and the sub

poenas issued by the Financial Services and Intelligence Committees in the Southern District of New York ( Deutsche Bank , No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers. The President did not, however, resist the subp oenas by arguing that any of the requested records were protected by executive privilege. For relief, petitioners asked for declaratory judgments and injunctions preventing Mazars and the banks from comply

ing with the subpoenas. Although named as defendants,6 TRUMP v. MAZARS USA, LLP

Opinion of the Court Mazars and the banks took no positions on the legal issues in these cases, and the House committees intervened to de

fend the subpoenas. Petitioners’ challenges failed. In Mazars , the District Court granted judgment for the House, 380 F. Supp. 3d 76 (DC 2019), and the D. C. Circuit affirmed, 940 F. 3d 710 (2019). In upholding the subpoena issued by the Oversight Committee to Mazars, the Court of Appeals found that the subpoena served a “valid legislative purpose” because the requested information was rele vant to reforming financial disclosure requirements for Presidents and presidential candidates. Id. , at 726–742 (internal quotation marks omit

ted). Judge Rao dissented. As she saw it, the “gravamen” of the subpoena was investigating alleged illegal conduct by the President, and the House must pursue such wrongdoing through its impeachment powers, not its legislative powers. Id. , at 773–774. Otherwise, the House could become a “rov

ing inquisition over a co-equal branch of government.” Id.
, at 748. The D. C. Circuit denied rehearing en banc over several more dissents. 941 F. 3d 1180, 1180–1182 (2019). In Deutsche Bank , the District Court denied a prelimi

nary injunction, 2019 WL 2204898 (SDNY, May 22, 2019), and the Second Circuit affirmed “in substantial part,” 943 F. 3d 627, 676 (2019). While acknowledging that the sub

poenas are “surely broad in scope,” the Court of Appeals held that the Intelligence Co mmittee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence over petitioners and Russian in

terference with the U. S. political process. Id. , at 650, 658– 659. That investigation, the court concluded, could inform legislation to combat foreign meddling and strengthen na

tional security. Id. , at 658–659, and n. 59. As to the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One, the Court of Appeals concluded that they we re adequately related to po

tential legislation on money laundering, terrorist financing,7 Cite as: 591 U. S. ____ (2020)

Opinion of the Court and the global movement of illicit funds through the real estate market. Id. , at 656–659. Rejecting the contention that the subpoenas improperly targeted the President, the court explained in part that the President’s financial deal

ings with Deutsche Bank ma de it “appropriate” for the House to use him as a “case study” to determine “whether new legislation is needed.” Id. , at 662–663, n. 67. 1 Judge Livingston dissented, seeing no “clear reason why a congressional investigation aimed generally at closing regulatory loopholes in the banking system need focus on over a decade of financial information regarding this Presi

dent, his family, and his business affairs.” Id. , at 687. We granted certiorari in both cases and stayed the judg

ments below pending our decision. 589 U. S. ___ (2019).

II A The question presented is whether the subpoenas exceed the authority of the House under the Constitution. Histor

ically, disputes over congressional demands for presidential documents have not ended up in court. Instead, they have been hashed out in the “hurly-burly, the give-and-take of the political process between the legislative and the execu

tive.” Hearings on S. 2170 et al. before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 94th Cong., 1st Sess., 87 (1975) (A. Scalia, Assistant Attorney General, Office of Legal Counsel). That practice began with George Washington and the

——————

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

ments be “promptly transmitted” to the committees. Id. , at 669.8 TRUMP v. MAZARS USA, LLP

Opinion of the Court early Congress. In 1792, a House committee requested Ex

ecutive Branch documents pertaining to General St. Clair’s campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana. See T. Taylor, Grand Inquest: The Story of Congressional Investigations 19–23 (1955). Since this was the first such request from Congress, Presi

dent Washington called a Cabinet meeting, wishing to take care that his response “be rightly conducted” because it could “become a precedent.” 1 Writings of Thomas Jeffer

son 189 (P. Ford ed. 1892). The meeting, attended by the likes of Alexander Hamil

ton, Thomas Jefferson, Edmund Randolph, and Henry Knox, ended with the Cabinet of “one mind”: The House had authority to “institute inquiries” and “call for papers” but the President could “exercise a discretion” over disclo

sures, “communicat[ing] such papers as the public good would permit” and “refus[ing]” the rest. Id. , at 189–190. President Washington then dispatched Jefferson to speak to individual congressmen and “bring them by persuasion into the right channel.” Id. , at 190. The discussions were apparently fruitful, as the Ho use later narrowed its request and the documents were supplied without recourse to the courts. See 3 Annals of Cong. 536 (1792); Taylor, supra , at 24. Jefferson, once he became President, followed Washing

ton’s precedent. In early 1807, after Jefferson had disclosed that “sundry persons” were co nspiring to invade Spanish territory in North America with a private army, 16 Annals of Cong. 686–687, the House requested that the President produce any information in his possession touching on the conspiracy (except for info rmation that would harm the public interest), id. , at 336, 345, 359. Jefferson chose not to divulge the entire “voluminous” correspondence on the sub

-9 Cite as: 591 U. S. ____ (2020)

Opinion of the Court ject, explaining that much of it was “private” or mere “ru

mors” and “neither safety nor justice” permitted him to “ex

pos[e] names” apart from identifying the conspiracy’s “prin

cipal actor”: Aaron Burr. Id. , at 39–40. Instead of the entire correspondence, Jefferson sent Congress particular docu

ments and a special message summarizing the conspiracy. Id. , at 39–43; see generally Vance
, ante , at 3–4. Neither Congress nor the President asked the Judiciary to intervene. 2 Ever since, congressional demands for the President’s in

formation have been resolved by the political branches without involving this Court. The Reagan and Clinton presidencies provide two modern examples: During the Reagan administration, a House subcommit

tee subpoenaed all documents related to the Department of the Interior’s decision whether to designate Canada a recip

rocal country for purposes of the Mineral Lands Leasing Act. President Reagan directe d that certain documents be withheld because they implicated his confidential relation

ship with subordinates. While withholding those docu

ments, the administration made “repeated efforts” at ac

commodation through limited disclosures and testimony over a period of several months. 6 Op. of Office of Legal Counsel 751, 780 (1982). Unsatisfied, the subcommittee and its parent committee eventually voted to hold the Sec

retary of the Interior in contempt, and an innovative com

promise soon followed: All documents were made available, but only for one day with no photocopying, minimal notetaking, and no participation by non-Members of Con

gress. Id. , at 780–781; see H. R. Rep. No. 97–898, pp. 3–8 (1982).

——————

2 By contrast, later that summer, the Judiciary was called on to resolve whether President Jefferson could be issued a subpoena duces tecum arising from Burr’s criminal trial. See United States v. Burr , 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807); see also Trump v. Vance
, ante , at 5–7.10 TRUMP v. MAZARS USA, LLP

Opinion of the Court In 1995, a Senate committee subpoenaed notes taken by a White House attorney at a meeting with President Clin

ton’s personal lawyers concer ning the Whitewater contro

versy. The President resisted the subpoena on the ground that the notes were protected by attorney-client privilege, leading to “long and protracted” negotiations and a Senate threat to seek judicial enforceme nt of the subpoena. S. Rep. No. 104–204, pp. 16–17 (1996). Eventually the parties reached an agreement, whereby President Clinton avoided the threatened suit, agreed to turn over the notes, and ob

tained the Senate’s concession that he had not waived any privileges. Ibid. ; see L. Fisher, Congressional Research Service, Congressional Investigations: Subpoenas and Con

tempt Power 16–18 (2003). Congress and the President maintained this tradition of negotiation and compromise—without the involvement of this Court—until the present dispute. Indeed, from Presi

dent Washington until now, we have never considered a dis

pute over a congressional subpoena for the President’s rec

ords. And, according to the parties, the appellate courts have addressed such a subpoena only once, when a Senate committee subpoenaed President Nixon during the Wa

tergate scandal. See infra , at 13 (discussing Senate Select Committee on Presidential Campaign Activities v. Nixon
, 498 F. 2d 725 (CADC 1974) (en banc)). In that case, the court refused to enforce the subpoena, and the Senate did not seek review by this Court. This dispute therefore represents a significant departure from historical practice. Al though the parties agree that this particular controversy is ju sticiable, we recognize that it is the first of its kind to re ach this Court; that disputes of this sort can raise important issues concerning relations be

tween the branches; that related disputes involving con

gressional efforts to seek o fficial Executive Branch infor

mation recur on a regular basis, including in the context of11 Cite as: 591 U. S. ____ (2020)

Opinion of the Court deeply partisan controversy; and that Congress and the Ex

ecutive have nonetheless managed for over two centuries to resolve such disputes among themselves without the bene

fit of guidance from us. Such longstanding practice “ ‘is a consideration of great weight’ ” in cases concerning “the al

location of power between [the] two elected branches of Gov

ernment,” and it imposes on us a duty of care to ensure that we not needlessly disturb “th e compromises and working arrangements that [those] branches . . . themselves have reached.” NLRB v. Noel Canning , 573 U. S. 513, 524–526 (2014) (quoting The Pocket Veto Case , 279 U. S. 655, 689 (1929)). With that in mind, we turn to the question presented.

B Congress has no enumerated constitutional power to con

duct investigations or issue subpoenas, but we have held that each House has power “to secure needed information” in order to legislate. McGrain v. Daugherty , 273 U. S. 135, 161 (1927). This “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legisla

tive function.” Id. , at 174. Without information, Congress would be shooting in the dark, unable to legislate “wisely or effectively.” Id. , at 175. The congressional power to obtain information is “broad” and “indispensable.” Watkins v. United States , 354 U. S. 178, 187, 215 (1957). It encom

passes inquiries into the administration of existing laws, studies of proposed laws, and “surveys of defects in our so

cial, economic or political syst em for the purpose of enabling the Congress to remedy them.” Id. , at 187. Because this power is “justified solely as an adjunct to the legislative process,” it is s ubject to several limitations. Id.
, at 197. Most importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Id. , at 187. The subpoena must serve a “valid legislative purpose,” Quinn v. United States , 34912 TRUMP v. MAZARS USA, LLP

Opinion of the Court

U. S. 155, 161 (1955); it must “concern[ ] a subject on which legislation ‘could be had,’ ” Eastland v. United States Ser

vicemen’s Fund , 421 U. S. 491, 506 (1975) (quoting McGrain , 273 U. S., at 177). Furthermore, Congress may not issue a subpoena for the purpose of “law enforcement,” because “those powers are as

signed under our Constitution to the Executive and the Ju

diciary.” Quinn , 349 U. S., at 161. Thus Congress may not use subpoenas to “try” someone “before [a] committee for any crime or wrongdoing.” McGrain , 273 U. S., at 179. Congress has no “ ‘general’ power to inquire into private af

fairs and compel disclosures,” id. , at 173–174, and “there is no congressional power to expose for the sake of exposure,” Watkins , 354 U. S., at 200. “Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” Id. , at 187. Finally, recipients of legislative subpoenas retain their constitutional rights througho ut the course of an investiga

tion. See id. , at 188, 198. And recipients have long been understood to retain common law and constitutional privi

leges with respect to certain materials, such as attorneyclient communications and governmental communications protected by executiv e privilege. See, e.g. , Congressional Research Service, supra, at 16–18 (attorney-client privi

lege); Senate Select Committee
, 498 F. 2d, at 727, 730–731 (executive privilege).
C The President contends, as does the Solicitor General ap

pearing on behalf of the United States, that the usual rules for congressional subpoenas do not govern here because the President’s papers are at issue. They argue for a more de

manding standard based in large part on cases involving the Nixon tapes—recordings of conversations between President Nixon and close advisers discussing the break-in at the Democratic National Committee’s headquarters at13 Cite as: 591 U. S. ____ (2020)

Opinion of the Court the Watergate complex. The tapes were subpoenaed by a Senate committee and the Specia l Prosecutor investigating the break-in, prompting President Nixon to invoke execu

tive privilege and leading to two cases addressing the show

ing necessary to require the Pr esident to comply with the subpoenas. See Nixon , 418 U. S. 683; Senate Select Com

mittee , 498 F. 2d 725. Those cases, the President and the Solicitor General now contend, establish the standard that should govern the House subpoenas here. Quoting Nixon , the President as

serts that the House must establish a “demonstrated, spe

cific need” for the financial information, just as the Wa

tergate special prosecutor was required to do in order to obtain the tapes. 418 U. S., at 713. And drawing on Senate Select Committee —the D. C. Circuit case refusing to enforce the Senate subpoena for the tapes—the President and the Solicitor General argue that the House must show that the financial information is “demonstrably critical” to its legis

lative purpose. 498 F. 2d, at 731. We disagree that these demanding standards apply here. Unlike the cases before us, Nixon and Senate Select Com

mittee involved Oval Office communications over which the President asserted executive privilege. That privilege safe

guards the public interest in candid, confidential delibera

tions within the Executive Branch; it is “fundamental to the operation of Government.” Nixon , 418 U. S., at 708. As a result, information subject to executive privilege deserves “the greatest protection consistent with the fair administra

tion of justice.” Id. , at 715. We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solici

tor General—if applied outside the context of privileged in

formation—would risk seriousl y impeding Congress in car

rying out its responsibilities. The President and the14 TRUMP v. MAZARS USA, LLP

Opinion of the Court Solicitor General would apply the same exacting standards to all subpoenas for the President’s information, without recognizing distinctions between privileged and nonprivi

leged information, between official and personal infor

mation, or between various legi slative objectives. Such a categorical approach would re present a significant depar

ture from the longstanding way of doing business between the branches, giving short shri ft to Congress’s important in

terests in conducting inquiries to obtain the information it needs to legislate effectively. Confounding the legislature in that effort would be contrary to the principle that: “It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its con

stituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served.” United States v. Rumely , 345 U. S. 41, 43 (1953) (internal quotation marks omitted). Legislative inquiries might involve the President in ap

propriate cases; as noted, Congress’s responsibilities extend to “every affair of government.” Ibid. (internal quotation marks omitted). Because the President’s approach does not take adequate account of these significant congressional in

terests, we do not adopt it.

D The House meanwhile would have us ignore that these suits involve the President. Invoking our precedents con

cerning investigations that did not target the President’s papers, the House urges us to uphold its subpoenas because they “relate[ ] to a valid legislative purpose” or “concern[ ] a15 Cite as: 591 U. S. ____ (2020)

Opinion of the Court subject on which legislation could be had.” Brief for Re

spondent 46 (quoting Barenblatt v. United States , 360 U. S. 109, 127 (1959), and Eastland , 421 U. S., at 506). That ap

proach is appropriate, the House argues, because the cases before us are not “momento us separation-of-powers dis

putes.” Brief for Respondent 1. Largely following the House’s lead, the courts below treated these cases much like any other, applying prece

dents that do not involve the President’s papers. See 943 F. 3d, at 656–670; 940 F. 3d, at 724–742. The Second Cir

cuit concluded that “this case does not concern separation of powers” because the House seeks personal documents and the President sued in his personal capacity. 943 F. 3d, at 669. The D. C. Circuit, for its part, recognized that “sep

aration-of-powers concerns st ill linger in the air,” and therefore it did not afford deference to the House. 940 F. 3d, at 725–726. But, because the House sought only personal documents, the court concluded that the case “present[ed] no direct interbranch dispute.” Ibid. The House’s approach fails to take adequate account of the significant separation of powers issues raised by con

gressional subpoenas for the President’s information. Con

gress and the President have an ongoing institutional rela

tionship as the “opposite and rival” political branches established by the Constitution. The Federalist No. 51, at 349. As a result, congressional subpoenas directed at the President differ markedly from congressional subpoenas we have previously reviewed, e.g. , Barenblatt , 360 U. S., at 127; Eastland , 421 U. S., at 506, and they bear little resem

blance to criminal subpoenas issued to the President in the course of a specific investigation, see Vance
, ante , p. ___; Nixon , 418 U. S. 683. Unlike those subpoenas, congres

sional subpoenas for the President’s information unavoida

bly pit the political branches against one another. Cf. In re Sealed Case , 121 F. 3d 729, 753 (CADC 1997) (“The Presi

-16 TRUMP v. MAZARS USA, LLP

Opinion of the Court dent’s ability to withhold information from Congress impli

cates different constitutional considerations than the Pres

ident’s ability to withhold evidence in judicial proceed

ings.”). Far from accounting for sepa ration of powers concerns, the House’s approach aggravates them by leaving essen

tially no limits on the cong ressional power to subpoena the President’s personal records. Any personal paper possessed by a President could potentially “relate to” a conceivable subject of legislation, for Congress has broad legislative powers that touch a vast numbe r of subjects. Brief for Re

spondent 46. The President’s financial records could relate to economic reform, medical reco rds to health reform, school transcripts to education reform, and so on. Indeed, at ar

gument, the House was unable to identify any type of infor

mation that lacks some relation to potential legislation. See Tr. of Oral Arg. 52–53, 62–65. Without limits on its subpoena powers, Congress could “exert an imperious controul” over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared. The Federalist No. 71, at 484 (A. Hamil

ton); see id. , No. 48, at 332–333 (J. Madison); Bowsher v. Synar , 478 U. S. 714, 721–722, 727 (1986). And a limitless subpoena power would transform the “established practice” of the political branches. Noel Canning , 573 U. S., at 524 (internal quotation marks omitted). Instead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court. The House and the courts below suggest that these sepa

ration of powers concerns are not fully implicated by the particular subpoenas here, but we disagree. We would have to be “blind” not to see what “[a]ll others can see and under

stand”: that the subpoenas do not represent a run-of-the

mill legislative effort but rather a clash between rival17 Cite as: 591 U. S. ____ (2020)

Opinion of the Court branches of government over re cords of intense political in

terest for all involved. Rumely , 345 U. S., at 44 (quoting Child Labor Tax Case , 259 U. S. 20, 37 (1922) (Taft, C. J.)). The interbranch conflict here does not vanish simply be

cause the subpoenas seek personal papers or because the President sued in his personal capacity. The President is the only person who alone composes a branch of govern

ment. As a result, there is not always a clear line between his personal and official affairs. “The interest of the man” is often “connected with the co nstitutional rights of the place.” The Federalist No. 51, at 349. Given the close con

nection between the Office of the President and its occu

pant, congressional demands for the President’s papers can implicate the relationship be tween the branches regardless whether those papers are personal or official. Either way, a demand may aim to harass the President or render him “complaisan[t] to the humors of the Legislature.” Id.
, No. 71, at 483. In fact, a subpoena for personal papers may pose a heightened risk of such impermissible purposes, precisely because of the documents’ personal nature and their less evident connection to a legislative task. No one can say that the controversy here is less significant to the relationship between the branches simply because it involves personal papers. Quite the opposite. That appears to be what makes the matter of such great consequence to the President and Congress. In addition, separation of powers concerns are no less pal

pable here simply because the subpoenas were issued to third parties. Congressional demands for the President’s information present an interbranch conflict no matter where the information is held—it is, after all, the Presi

dent’s information. Were it otherwise, Congress could side

step constitutional requiremen ts any time a President’s in

formation is entrusted to a third party—as occurs with rapidly increasing frequency. Cf. Carpenter v. United States , 585 U. S. ___, ___, ___ (2018) (slip op., at 15, 17).18 TRUMP v. MAZARS USA, LLP

Opinion of the Court Indeed, Congress could declare open season on the Presi

dent’s information held by schools, archives, internet ser

vice providers, e-mail client s, and financial institutions. The Constitution does not tolerate such ready evasion; it “deals with substance, not shadows.” Cummings v. Mis

souri , 4 Wall. 277, 325 (1867).

E Congressional subpoenas for the President’s personal in

formation implicate weighty concerns regarding the sepa

ration of powers. Neither side, however, identifies an ap

proach that accounts for these concerns. For more than two centuries, the political branches have resolved information disputes using the wide variety of means that the Constitu

tion puts at their disposal. The nature of such interactions would be transformed by judici al enforcement of either of the approaches suggested by the parties, eroding a “[d]eeply embedded traditional way[ ] of conducting government.” Youngstown Sheet & Tube Co. , 343 U. S., at 610 (Frankfur

ter, J., concurring). A balanced approach is necessary, one that takes a “con

siderable impression” from “the practice of the govern

ment,” McCulloch v. Maryland , 4 Wheat. 316, 401 (1819);

see Noel Canning , 573 U. S., at 524–526, and “resist[s]” the “pressure inherent within each of the separate Branches to exceed the outer limits of its power,” INS v. Chadha , 462 U. S. 919, 951 (1983). We therefore conclude that, in as

sessing whether a subpoena directed at the President’s per

sonal information is “related to, and in furtherance of, a le

gitimate task of the Congress,” Watkins , 354 U. S., at 187, courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, in

cluding both the significant legislative interests of Congress and the “unique position” of the President, Clinton , 520 U. S., at 698 (internal quotation marks omitted). Several special considerations inform this analysis.19 Cite as: 591 U. S. ____ (2020)

Opinion of the Court First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involv

ing the President and his papers. “ ‘[O]ccasion[s] for consti

tutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C. , 542 U. S. 367, 389–390 (2004) (quoting Nixon , 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its par

ticular legislative objective. The President’s unique consti

tutional position means that Congress may not look to him as a “case study” for general legislation. Cf. 943 F. 3d, at 662–663, n. 67. Unlike in criminal proceedings, where “[t]he very integ

rity of the judicial system” would be undermined without “full disclosure of all the facts,” Nixon , 418 U. S., at 709, efforts to craft legislation in volve predictive policy judg

ments that are “not hamper[ed] . . . in quite the same way” when every scrap of potentially relevant evidence is not available, Cheney , 542 U. S., at 384; see Senate Select Com

mittee , 498 F. 2d, at 732. While we certainly recognize Congress’s important interests in obtaining information through appropriate inquiries, those interests are not suffi

ciently powerful to justify acce ss to the President’s personal papers when other sources co uld provide Congress the in

formation it needs. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to su pport Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney
, 542 U. S., at 387. Third, courts should be attentive to the nature of the ev

idence offered by Congress to establish that a subpoena ad

vances a valid legislative purpose. The more detailed and20 TRUMP v. MAZARS USA, LLP

Opinion of the Court
substantial the evidence of Co ngress’s legislative purpose, the better. See Watkins , 354 U. S., at 201, 205 (preferring such evidence over “vague” and “loosely worded” evidence of Congress’s purpose). That is particularly true when Con

gress contemplates legislation that raises sensitive consti

tutional issues, such as legislation concerning the Presi

dency. In such cases, it is “impossible” to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President’s informatio n will advance its considera

tion of the possible legislation. Id. , at 205–206, 214–215. Fourth, courts should be careful to assess the burdens im

posed on the President by a subpoena. We have held that burdens on the President’s time and attention stemming from judicial process and litig ation, without more, generally do not cross constitutional lines. See Vance
, ante, at 12–14; Clinton , 520 U. S., at 704–705. But burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use sub

poenas for institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. When Congress seeks information “needed for intelligent legislative action,” it “unquestionably” remains “the duty of all citizens to cooperate.” Watkins , 354 U. S., at 187 (em

phasis added). Congressional subpoenas for information from the President, however, implicate special concerns re

garding the separation of powe rs. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered._________________

_________________ 1 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–715 and 19–760

DONALD J. TRUMP, ET AL ., PETITIONERS 19–715 v. MAZARS USA, LLP, ET AL

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

DONALD J. TRUMP, ET AL ., PETITIONERS 19–760 v. DEUTSCHE BANK AG, ET AL

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

J USTICE T HOMAS , dissenting. Three Committees of the U. S. House of Representatives issued subpoenas to several accounting and financial firms to obtain the personal financial records of the President, his family, and several of his business entities. The Commit

tees do not argue that these subpoenas were issued pursu

ant to the House’s impeachment power. Instead, they argue that the subpoenas are a valid exercise of their legislative
powers. Petitioners challenge the validity of these subpoenas. In doing so, they call into question our precedents to the extent that they allow Congress to issue legislative subpoenas for the President’s private, nonoffici al documents. I would hold that Congress has no power to issue a legislative subpoena for private, nonofficial docume nts—whether they belong to the President or not. Congress may be able to obtain these documents as part of an investigation of the President, but2 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting to do so, it must proceed under the impeachment power. Accordingly, I would reverse the judgments of the Courts of Appeals.

I I begin with the Committees ’ claim that the House’s leg

islative powers include the im plied power to issue legisla

tive subpoenas. Although the Founders understood that the enumerated powers in the Constitution included im

plied powers, the Committees’ test for the scope of those powers is too broad. “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison , 1 Cranch 137, 176 (1803). The structure of limited and enumerated powers in our Constitution denotes that “[o]ur system of government rests on one ove rriding principle: All power stems from the consent of the people.” U. S. Term Limits
, Inc. v. Thornton , 514 U. S. 779, 846 (1995) (T HOMAS , J., dis

senting). As a result, Congress may exercise only those powers given by the people of the States through the Con

stitution. The Founders nevertheless understood that an enumer

ated power could necessarily bring with it implied powers. The idea of implied powers usually arises in the context of the Necessary and Proper Clause, which gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Gov

ernment of the United States, or in any Department or Of

ficer thereof.” Art. I, §8, cl. 18. As I have previously ex

plained, the Necessary and Proper Clause simply “made explicit what was already implicit in the grant of each enu

merated power.” United States v. Comstock , 560 U. S. 126, 161 (2010) (dissenting opinion). That is, “the grant of a gen

-3 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting eral power includes the grant of incidental powers for car

rying it out.” Bray, “Necessary and Proper” and “Cruel and Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev. 687, 741 (2016). The scope of these implied powers is very limited. The Constitution does not sweep in powers “of inferior im

portance, merely because they are inferior.” McCulloch v. Maryland , 4 Wheat. 316, 408 (1819). Instead, Congress “can claim no powers which are not granted to it by the con

stitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.” Martin v. Hunter’s Lessee , 1 Wheat. 304, 326 (1816). In sum, while the Committees’ theory of an implied power is not categorically wrong, that power must be necessarily im

plied from an enumerated power.

II At the time of the founding, the power to subpoena pri

vate, nonofficial documents was not included by necessary implication in any of Congress’ legislative powers. This un

derstanding persisted for decades and is consistent with the Court’s first decision addressing legislative subpoenas, Kil

bourn v. Thompson , 103 U. S. 168 (1881). The test that this Court created in McGrain v. Daugherty , 273 U. S. 135 (1927), and the majority’s variation on that standard today, are without support as applied to private, nonofficial docu

ments. 1
A The Committees argue that Congress wields the same in

vestigatory powers that the British Parliament did at the time of the founding. But this claim overlooks one of the fundamental differences between our Government and the British Government: Parliament was supreme. Congress is

——————

1 I express no opinion about the constitutionality of legislative subpoe

nas for other kinds of evidence.4 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting

not. I have previously explaine d that “the founding genera

tion did not subscribe to Blacks tone’s view of parliamentary supremacy.” Department of Transportation v. Association of American Railroads , 575 U. S. 43, 74 (2015) (opinion con

curring in judgment). “Parliament’s violations of the law of the land had been a significant complaint of the American Revolution.” Id., at 74–75. “And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law.” Id. , at 75. James Wilson, signer of the Constitution and future Jus

tice, explained this difference to the Pennsylvania ratifying convention: “Blackstone will tell you, that in Britain [the supreme power] is lodged in the British Parliament; and I believe there is no writer on the other side of the Atlantic” who thought otherwise. 2 Documentary History of the Rat

ification of the Constitution 471 (M. Jensen ed. 1976) (Doc

umentary History). In the United States, however, “the su

preme, absolute, and uncontrollable authority, remains with the people.” Id. , at 472. And “[t]he Constitution plainly sets forth the ‘few and defined’ powers that Con

gress may exercise.” Comstock , 560 U. S., at 159 (T HOMAS , J., dissenting); see also McCulloch , 4 Wheat., at 405; Marbury , 1 Cranch, at 176. This significant difference means that Parliament’s powers and Congress’ powers are not nec

essarily the same. In fact, the plain text of the Constitution makes clear that they are not. The Constitution expressly denies to Congress some of the powers that Parliament exercised. Article I, for example, prohibits bills of attainder, §9, cl. 3, which Parlia

ment used to “sentenc[e] to death one or more specific per

sons.” United States v. Brown , 381 U. S. 437, 441 (1965). A legislature can hardly be considered supreme if it lacks the power to pass bills of attainder, which Justice Story called the “highest power of sovereig nty.” 3 Commentaries on the5 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting Constitution of the United States §1338, p. 210 (1833). Re

latedly, the Constitution prohibits ex post facto laws, §9, cl. 3, reinforcing the fact that Congress’ power to punish is limited. 2 And in a system in which Congress is not su

preme, the individual protections in the Bill of Rights, such as the prohibition on unreasonable searches and seizures, meaningfully constrain Congre ss’ power to compel docu

ments from private citizens. Cf. 1 St. George Tucker, Black

stone’s Commentaries 203–205, n. § (1803); see also D. Cur

rie, The Constitution in Congress: The Federalist Period, 1789–1801, p. 268 (1997). Furthermore, Kilbourn —this Court’s first decision on the constitutionality of legislative subpoenas—emphasized that Parliament had more powers than Congress. There, the congressional respondents relied on Parliament’s inves

tigatory power to support a legislative subpoena for testi

mony and documents. The Court rejected the analogy be

cause the judicial powers of the House of Commons—the lower house of Parliament—exceeded the judicial functions of the House of Representatives. Kilbourn
, supra, at 189. At bottom, Kilbourn recognized that legislative supremacy was decisively rejected in the framing and ratification of our Constitution, which casts doubt on the Committees’ claim that they have power to issue legislative subpoenas to pri

vate parties.

B The subpoenas in these cases also cannot be justified based on the practices of 18th-century American legisla

-

——————

2 The Constitution also enumerates a limited set of congressional priv

ileges. Although I expre ss no opinion on the question, at least one early commentator thought the canon of expressio unius meant that Congress had no unenumerated privileges, such as the power to hold nonmembers in contempt. 1 St. George Tucker, Blackstone’s Commentaries 200, n. § (1803).6 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting

tures. Amici supporting the Committees resist this conclu

sion, but the examples they cite materially differ from the legislative subpoenas at issue here. First, amici cite investigations in which legislatures sought to compel testimony fr om government officials on government matters. The subjects included military af

fairs, taxes, government finances, and the judiciary. Potts, Power of Legislative Bodies To Punish for Contempt, 74 U. Pa. L. Rev. 691, 708, 709, 710, 716–717 (1926) (Potts); see also E. Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress To Investigate and Punish for Contempt 18 (1928) (Eberling). But the information sought in these examples was official, not private. Underscoring this distinction, at least one rev

olutionary-era State Constitution permitted the legislature to “call for all public or official papers and records, and send for persons, whom they may judge necessary in the course of their inquiries, concerning affairs relating to the public interest.” Md. Const., Art. X (1776) (emphasis added). Second, 18th-century legislatures conducted nonlegisla

tive investigations. For exam ple, the New York colonial legislature tasked one committee with investigating a nui

sance complaint and gave it the “power to send for persons, papers and records.” Eberling 18; see also id. , at 19 (inves

tigation of a government contract obtained by alleged wrongdoing); Potts 716 (investigation of armed resistance). But to describe this category is to distinguish it. Here, the Committees assert only a legislative purpose. Third, colonial and state legislatures investigated and punished insults, libels, and bribery of members. For ex

ample, the Pennsylvania colonial assembly investigated “injurious charges, and slanderous Aspersions against the Conduct of the late Assembly” made by two individuals. Id.
, at 710 (internal quotation marks omitted); see also id. , at 717; Eberling 20–21. But once again, to describe this cate

-7 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting gory is to distinguish it because the subpoenas here are jus

tified only as incidental to the power to legislate, not the power to punish libels or bribery. In short, none of the ex

amples from 18th-century colonial and state history sup

port a power to issue a legislative subpoena for private, non

official documents.
C Given that Congress has no exact precursor in England or colonial America, founding- era congressional practice is especially informative about the scope of implied legislative powers. Thus, it is highly probative that no founding-era Congress issued a subpoena for private, nonofficial docu

ments. Although respondents could not identify the first such legislative subpoena at oral argument, Tr. of Oral Arg. 56, Congress began issuing them by the end of the 1830s. However, the practice remain ed controversial in Congress and this Court throughout the first century of the Republic.

1 In an attempt to establish the power of Congress to issue legislative subpoenas, the Committees point to an investi

gation of Government affairs and an investigation under one of Congress’ enumerated pr ivileges. Both precedents are materially different from the subpoenas here. In 1792, the House authorized a Committee to investigate a failed military expedition led by General Arthur St. Clair. 3 Hinds’ Precedents of the House of Representatives of the United States §1725, pp. 79–80 (1907) (Hinds). The Com

mittee was “empowered to call for such persons, papers and records as may be necessary to assist their inquiries.” Ibid. But the Committee never subp oenaed private, nonofficial documents, which is telling. Whereas a subpoena for Gov

ernment documents does not implicate concerns about property rights or the Fourth Amendment “right of the peo

ple to be secure in their pers ons, houses, papers, and effects,8 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting against unreasonable searches and seizures,” a subpoena for private, nonofficial documents raises those questions. Thus, the power to subpoena private documents, which the Committee did not exercise, is a far greater power and much less likely to be implied in Congress’ legislative pow

ers. In 1832, the House investigated Representative Samuel Houston for assaulting Repres entative William Stanberry. Stanberry had accused Houston of collusion with Secretary of War John Eaton in connecti on with a bid for a Govern

ment contract, and the House initiated an investigation into the truthfulness of Stanberry’s accusation. 8 Cong. Deb. 2550, 3022–3023 (1832). The House subpoenaed wit

nesses to testify, and one of them brought official corre

spondence between the Secretary of War and the President. H. R. Rep. No. 502, 22d Cong., 1st Sess. 64, 66–67 (1832). But official documents are obvi ously different from nonoffi

cial documents. Moreover, th e subpoenas were issued pur

suant to the House’s enumerated privilege of punishing its own Members, Art. I, §5, not as part of its legislative pow

ers. Because these subpoenas were not issued pursuant to a legislative power, they do not aid the Committees’ case.

2 As late as 1827, a majority of the House declined to au

thorize the Committee on Manufactures to subpoena docu

ments, amid concerns that it was unprecedented. During the debate over the resolution, one opponent remarked that “[t]here is no instance under this Government, within my recollection, where this power has been given for the mere purpose of enabling a committee of this House to adjust the details of an ordinary bill.” 4 Cong. Deb. 865–866 (Rep. Strong); see also id. , at 862 (referring to “authority to bring any citizens of the United States . . . whom they might choose to send for, and compel them to give answers to every inquiry which should be addressed to them” as “very9 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting extraordinary”). Another opponent stated that the Com

mittee had requested a power that had “not heretofore been thought necessary to enable that Committee to acquire cor

rect information.” Id. , at 866 (Rep. Storrs). A third called it “not only novel and extraordinary, but wholly unneces

sary.” Id. , at 874 (Rep. Stewart); see also id. , at 884–885 (Rep. Wright). No supporter of the resolution offered a spe

cific precedent for doing so, and the House ultimately au

thorized the Committee to send for persons only. Id. , at 889–890. This debate is particularly significant because of the ar

guments made by both sides. Proponents made essentially the same arguments the Committees raise here—that the power to send for persons and papers was necessary to in

form Congress as it legislated. Id. , at 871 (Rep. Livingston). Opponents argued that this power was not part of any leg

islative function. Id. , at 865–866 (Rep. Strong). They also argued that the House of Co mmons provided no precedent because Congress was a body of limited and enumerated
powers. Id. , at 882 (Rep. Wood). And in the end, the oppo

nents prevailed. Thus, through 1827, the idea that Con

gress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id. , at 874.

3 By the end of the 1830s, Congress began issuing legisla

tive subpoenas for private, nonofficial documents. See Eberling 123–126. Still, the power to demand information from private parties during le gislative investigations re

mained controversial. In 1832, the House authorized a Committee to “inspect the books, and to examine into the proceedings of the Bank of the United States, to report thereon, and to report whether the provisions of its charter have been violated or10 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting not.” 8 Cong. Deb. 2160, 2164. The House gave the Com

mittee “power to send for persons and papers.” Id., at 2160

. The power to inspect the books of the Bank of the United States is not itself a clear example of a legislative subpoena for private, nonofficial documents, because the Bank was a federally chartered corporatio n and was required to allow Congress to inspect its books. App. to 8 Cong. Deb. 54 (1833). The investigation itse lf appears to have ranged more widely, however, lead ing Congressman John Quincy Adams to criticize “investigations which must necessarily implicate not only the president and directors of the bank, and their proceedings, but the rights, the interests, the fortunes, and the reputation of individuals not responsible for those proceedings, and whom neither the committee nor the House had the power to try, or even accuse be

fore any other tribunal.” Ibid. Adams continued that such an investigation “bears all the exceptionable and odious properties of general warrants and domiciliary visits.” Ibid. He also objected that the Committee’s investigation of th e Bank was tantamount to punishment and thus was in tension with the constitutional prohibitions on “passing any bill of attainder [or] ex post facto law.” Id., at 60. Thus, even when Congress author

ized a Committee to send for private papers, the constitu

tionality of doing so was questioned. An 1859 Senate investigation, which the Court of Appeals cited as precedent, underscores that legislative subpoenas to private parties were a 19th-century innovation. Follow

ing abolitionist John Brown’s raid at Harper’s Ferry, Sen

ate Democrats opened an investigation apparently de

signed to embarrass opponents of slavery. As part of the investigation, they called private individuals to testify. Senator Charles Sumner, a leading opponent of slavery, railed against the proceedings:11 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting “I know it is said that this power is necessary in aid of legislation . I deny the necessity. Convenient , at times, it may be; but necessary , never . We do not drag the members of the Cabinet or the President to testify be

fore a committee in aid of legislation ; but I say, without hesitation, they can claim no immunity which does not belong equally to the humblest citizen.” Cong. Globe, 36th Cong., 1st Sess., 3007 (1860). Sumner also addressed the matter of Parliament’s powers, calling them “more or less inapplicable” because “[w]e live under a written Constitution, wi th certain specified powers; and all these are restrained by the tenth amendment.” Ibid. For Sumner, as for Adams, the power to issue legisla

tive subpoenas to private parties was a “dangerous absurd

ity” with no basis in the text or history of the Constitution. Ibid. 3

4 When this Court first addressed a legislative subpoena, it refused to uphold it. After casting doubt on legislative subpoenas generally, the Court in Kilbourn v. Thompson
, 103 U. S. 168, held that the subpoena at issue was unlawful because it sought to investigate private conduct. In 1876, the House created a special Committee to inves

tigate the failure of a major bank, which caused the loss of federal funds and related to financial speculation in the District of Columbia. Id. , at 171. The Committee issued a subpoena to Kilbourn, an employee of the bank. Id., at 172. When he refused to answer questions or produce docu

ments, the House held him in contempt and arrested him. Id. , at 173. After his release, he sued the Speaker, several

——————

3 I note as well that Sumner expre ssly distinguished legislative sub

poenas from subpoenas issued during “those inquiries wh ich are in their nature preliminary to an impeachment.” Cong. Globe, 36th Cong., 1st Sess., 3007 (1860).12 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting Committee members, and the Sergeant at Arms for dam

ages. The Court discussed the arguments for an “impli[ed]” power to issue legislative subpoenas. Id. , at 183. As the Court saw it, there were two arguments: “1, its exercise by the House of Commons of England . . . and, 2d, the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the powers which the Con

stitution has conferred on them.” Ibid. The Court rejected the first argument. It found “no dif

ference of opinion as to [the] origin” of the House of Com

mons’ subpoena power: “[T]he two Houses of Parliament were each courts of judicature originally, which, though divested by usage, and by statute, probably, of many of their judicial func

tions, have yet retained so much of that power as ena

bles them, like any other court, to punish for a con

tempt of these privileges and authority that the power rests.” Id., at 184. Even after the division of Parliament into two houses, “[t]o the Commons was left the power of impeachment, and, per

haps, others of a judicial character, and jointly they exer

cised, until a very recent period, the power of passing bills of attainder for treason and other high crimes which are in their nature punishment for crime declared judicially by the High Court of Parliament.” Ibid. By contrast, the House of Representatives “is in no sense a court, . . . exer

cises no functions derived from its once having been a part of the highest court of the realm,” and has no judicial func

tions beyond “punishing its own members and determining their election.” Id. , at 189. The Court thus rejected the no

tion that Congress inherited from Parliament an implied power to issue legislative subpoenas. The Court did not reach a conclusion on the second theory13 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting that a legislative subpoena power was necessary for Con

gress to carry out its legislative duties. But it observed that, based on British judicial opinions, not “much aid [is] given to the doctrine, that this power exists as one neces

sary to enable either House of Congress to exercise success

fully their function of legislation.” Ibid. The Court referred to a collection of 18th- and 19th-century English decisions grounding the Parliamentary subpoena power in that body’s judicial origins. Id., at 184–189 (citing Burdett v. Ab

bott , 104 Eng. Rep. 501 (K. B. 1811); Brass Crosby’s Case
, 95 Eng. Rep. 1005 (C. P. 1771); Stockdale v. Hansard , 112 Eng. Rep. 1112 (K. B. 1839); and Kielley v. Carson , 13 Eng. Rep. 225 (P. C. 1841)). The Court placed particular empha

sis on Kielley , in which the Privy Council held that the Leg

islative Assembly of Newfoundland lacked a power to pun

ish for contempt. The Privy Council expressly stated that the House of Commons could punish for contempt

“ ‘not because it is a representative body with legisla

tive functions, but by virtue of ancient usage and pre

scription . . . which forms a part of the common law of the land, and according to which the High Court of Par

liament before its division, and the Houses of Lords and Commons since, are invested with many privileges, that of punishment for contempt being one.’ ” Kilbourn
, 103 U. S., at 188–189.
This Court also noted that th e Privy Council “discusse[d] at length the necessity of this po wer in a legislative body for its protection, and to enable it to discharge its law-making functions, and decide[d] against the proposition.” Id. , at 189. Although the Court did not have occasion to decide whether the legislative subpoena in that case was neces

sary to the exercise of Congress’ legislative powers, its dis

-14 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting cussion strongly suggests the subpoena was unconstitu

tional. 4 The Court instead based its decision on the fact that the subpoena at issue “ma[de] inquiry into the private affairs of the citizen.” Id. , at 190. Such a power, the Court reasoned, “is judicial and not legislative,” id. , at 193, and “no judicial power is vested in the Congress or either branch of it, save in the cases” of punishing Members, compelling Members’ attendance, judging elections and qualifications, and im

peachment and trial, id.
, at 192–193. Notably, the Court found no indication that the House “avowed to impeach the secretary,” or else “the whole aspect of the case would have been changed.” Id. , at 193. Even though the Court decided Kilbourn narrowly, it clearly entertained substantial doubts about the constitutionality of legislative subpoenas for private documents.

D Nearly half a century later, in McGrain v. Daugherty , the Court reached the question reserved in Kilbourn —whether Congress has the power to issue legislative subpoenas. It rejected Kilbourn ’s reasoning and upheld the power to issue legislative subpoenas as long as they were relevant to a leg

islative power. Although McGrain involved oral testimony, the Court has since extended th is test to subpoenas for pri

vate documents. The Committees rely on McGrain , but this line of cases misunderstands bo th the original meaning of Article I and the historical practice underlying it.

——————

4 According to Justice Miller’s private letters, “a majority of the Court, including Miller himself, were of the opinion that neither House nor Sen

ate had power to punish for contempt witnesses who refused to testify before investigating committees.” T. Taylor, Grand Inquest: The Story of Congressional Investigations 49 (1 955). Only Justice Miller’s desire to “ ‘decid[e] no more than is necessary’ ” caused the Court to avoid the broader question. Ibid.15 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting

1 Shortly before Attorney General Harry Daugherty re

signed in 1924, the Senate opened an investigation into his

“ ‘alleged failure’” to prosecute monopolists, the protago

nists of the Teapot Dome scandal, and “ ‘many others.’ ” McGrain , 273 U. S

. , at 151. The investigating Committee issued subpoenas to Daugherty’s brother, Mally, who re

fused to comply and was arrested in Ohio for failure to tes

tify. Id. , at 152–154. Mally petitioned for a writ of habeas corpus, and the District Court discharged him, based largely on Kilbourn

. Ex parte Daugherty , 299 F. 620 (SD Ohio 1924). The Deputy Sergeant at Arms who arrested Mally directly appealed to this Court, which reversed. The Court concluded that, “[i]n actual legislative prac

tice[,] power to secure needed information by [investigating and compelling testimony] has long been treated as an at

tribute of the power to legislate.” McGrain , 273 U. S., at 161. The Court specifically found that “[i]t was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution” and that “a like view has prevailed and been carried into effect in both houses of Con

gress and in most of the state legislatures.” Ibid. But the authority cited by the Court did not support that proposi

tion. The Court cited the 1792 investigation of St. Clair’s defeat, in which it appears no subpoena was issued, supra, at 7–8, and the 1859 Senate investigation of John Brown’s raid on Harper’s Ferry, which led to an impassioned debate. 273 U. S., at 162–164. Thus, for the reasons explained above, the examples relied on in McGrain are materially different from issuing a legislative subpoena for private, nonofficial documents. See supra, at 7, 10–11. 5

——————

5 The Court also cited decisions between 1858 and 1913 from state courts and a Canadian court, none of which are persuasive evidence about the original meaning of the U. S. Constitution. McGrain , 273 U. S., at 165–167.16 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting The Court acknowledged Kilbourn, but erroneously dis

tinguished its discussion regarding the constitutionality of legislative subpoenas as immaterial dicta. McGrain
, supra , at 170–171 (quoting Kilbourn
, supra, at 189). The Court concluded that “the two houses of Congress, in their sepa

rate relations, possess not only such powers as are ex

pressly granted to them by the Constitution, but such aux

iliary powers as are necessary and appropriate to make the express powers effective.” McGrain
, supra, at 173. Instead of relying on Kilbourn ’s analysis, McGrain devel

oped a test that rested heavily on functional considerations. The Court wrote that “[a] legislative body cannot legislate wisely or effectively in the absence of information respect

ing the conditions which the legi slation is intended to affect or change.” 273 U. S., at 175. Because “mere requests for such information often are unavailing, and also that infor

mation which is volunteered is not always accurate or com

plete,” “some means of compulsion are essential to obtain what is needed.” Ibid. The Court thus concluded that Congress could issue leg

islative subpoenas, provided t hat “the purpose for which the witness’s testimony was sought was to obtain information in aid of the legislative function.” Id., at 176. The Court has since applied this test to subpoenas for papers without any further analysis of the text or history of the Constitu

tion. See Eastland v. United States Servicemen’s Fund , 421 U. S. 491, 504–505 (1975). The majority today modifies that test for cases involving the President, but it leaves the core of the power untouched. Ante , at 18–20.

2 The opinion in McGrain lacks any foundation in text or history with respect to subpoen as for private, nonofficial documents. It fails to recognize that Congress, unlike Par

liament, is not supreme. It does not cite any specific prece

-17 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting dent for issuing legislative subpoenas for private docu

ments from 18th-century colonial or state practice. And it identifies no founding-era legislative subpoenas for private documents. 6 Since McGrain , the Court has pared back Congress’ au

thority to compel testimony and documents. It has held that certain convictions of wi tnesses for contempt of Con

gress violated the Fifth Amendment. See Watkins v. United States , 354 U. S. 178 (1957) (Due Process Clause); Quinn v. United States , 349 U. S. 155 (1955) (Self-Incrimination Clause); see also Barenblatt v. United States , 360 U. S. 109, 153–154 (1959) (Black, J., dissenting). It has also affirmed the reversal of a conviction on the ground that the Commit

tee lacked authority to issue the subpoena. See United States v. Rumely , 345 U. S. 41 (1953). And today, it creates a new four-part, nonexhaustive test for cases involving the President. Ante , at 18–20. Rather than continue our trend of trying to compensate for McGrain , I would simply decline to apply it in these cases because it is readily apparent that the Committees have no constitutional authority to sub

poena private, nonofficial documents.

III If the Committees wish to investigate alleged wrongdoing by the President and obtain documents from him, the Con

stitution provides Congress with a special mechanism for

——————

6 The Court further observed that Congress has long exercised the power to hold nonmembers in contempt for reasons other than failure to comply with a legislative subpoena. McGrain
, supra, at 168–169. The earliest case it cited, Anderson v. Dunn , 6 Wheat. 204 (1821), relied on arguments about Congress’ power of self-protection, id., at 226–227. Members of Congress defending the use of contempt for these other pur

poses made similar arguments about se lf-protection. 5 Annals of Cong. 181–182 (1795) (Rep. W. Smith); id., at 189 (Rep. I. Smith). But the fail

ure to respond to a subpoena does no t pose a fundamental threat to Con

gress’ ability to exercise its powers.18 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting doing so: impeachment. 7

A It is often acknowledged, “if only half-heartedly honored,” that one of the motivating principles of our Constitution is the separation of powers. Association of American Rail

roads , 575 U. S., at 74 (T HOMAS , J., concurring in judg

ment). The Framers recognized that there are three forms of governmental power: legislative, executive and judicial. The Framers also created three branches: Congress, the President, and the Judiciary. The three powers largely align with the three branches. To a limited extent, how

ever, the Constitution contains “a partial intermixture of those departments for special purposes.” The Federalist No. 66, p. 401 (C. Rossiter ed. 1961) (A. Hamilton). One of those special purposes is the system of checks and balances, and impeachment is one of those checks. The Constitution grants the House “the sole Power of Im

peachment,” Art. I, §2, cl. 5, and it specifies that the Presi

dent may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” Art. II, §4. The founding gen

eration understood impeachment as a check on Presidential abuses. In response to charges that impeachment “con

founds legislative and judiciary authorities in the same body,” Alexander Hamilton called it “an essential check in the hands of [Congress] upon the encroachments of the ex

ecutive.” The Federalist No. 66, at 401–402. And, in the Virginia ratifying convention, James Madison identified impeachment as a check on Presidential abuse of the treaty power. 10 Documentary History 1397.

B The power to impeach includes a power to investigate and

——————

7 I express no view on whether ther e are any limitations on the im

peachment power that would preven t the House from subpoenaing the documents at issue.19 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting demand documents. Impeachments in the States often in

volved an investigation. In 1781, the Virginia Legislature began what Edmund Randolph called an “impeachment” of then-Governor Thomas Jefferson. P. Hoffer & N. Hull, Im

peachment in America, 1635–1805, p. 85 (1984). This “most publicized and far-reaching impeachment inquiry for in

competence” included an “‘inquir[y] into the conduct of the executive of this state for the last two months.’ ” Ibid. The legislatures of New Jersey, id. , at 92, and Pennsylvania, id.
, at 93–95, similarly investigated officials through impeach

ment proceedings. Reinforcing this understanding, the founding generation repeatedly referred to impeachment as an “inquest.” See 4 Debates on the Constitution 44 (J. Elliot ed. 1854) (speech of A. Maclaine) (referring to the House as “the grand in

quest of the Union at large”); The Federalist No. 65, at 397 (Hamilton) (referring to the House as “a method of N ATIONAL I NQUEST ”); 2 Records of the Federal Convention 154 (M. Farrand ed. 1911) (record from the Committee of Detail stating that “[t]he House of Representatives shall be the grand Inquest of this Nation; and all Impeachments shall be made by them”); see also Mass. Const., ch. 1, §3, Art. VI (1780) (referring to the Massachusetts House of Representatives as “the Grand Inquest of this Common

wealth”). At the time, an “i nquest” referred to an “[i]nquiry, especially that made by a Jury” or “the Jury itself.” N. Bai

ley, Universal Etymological Dictionary (22d ed. 1770). The Founders were also aware of the contemporaneous impeachment of Warren Hastings in England, in which the House of Commons heard witnesses before voting to im

peach. P. Marshall, The Impeachment of Warren Hastings 40–41, 58 (1965). In the first impeachment under the new Constitution, Congressmen cited the Hastings impeach

ment as precedent for several points, including the power to take testimony before impeaching. 7 Annals of Cong. 456 (1797) (Rep. Rutledge); id. , at 459 (Rep. Sitgreaves); id., at20 TRUMP v. MAZARS USA, LLP

T HOMAS , J., dissenting 460 (Rep. Gallatin). Other evidence from the 1790s confirms that the power to investigate includes the power to demand documents. When the House of Representatives sought documents re

lated to the Jay Treaty from President George Washington, he refused to provide them on the ground that the House had no legislative powers relati ng to the ratification of trea

ties. 5 Annals of Cong. 760–762 (1796). But he carefully noted that “[i]t does not occur that the inspection of the pa

pers asked for can be relative to any purpose under the cog

nizance of the House of Representatives, except that of an impeachment; which the resolution has not expressed.” Id., at 760. In other words, he understood that the House can demand documents as part of its power to impeach. This Court has also long recognized the power of the House to demand documents. Even as it questioned the power to issue legislative subpoenas, the Court in Kilbourn acknowledged the ability to “compel the attendance of wit

nesses, and their answer to proper questions” when “the question of . . . impeachment is before either body acting in its appropriate sphere on that subject.” 103 U. S., at 190. I express no view today on the boundaries of the power to demand documents in connection with impeachment pro

ceedings. But the power of impeachment provides the House with authority to investigate and hold accountable Presidents who commit high crimes or misdemeanors. That is the proper path by which the Committees should pursue their demands.

IV For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdo

ing by the President outside the context of impeachment. Congress investigated Presidents without opening im

peachment proceedings. See, e.g., 2 Hinds §1596, at 1043– 1045 (President James Buchanan). But it never issued a21 Cite as: 591 U. S. ____ (2020)

T HOMAS , J., dissenting subpoena for private, nonofficial documents as part of those non-impeachment inquiries. Perhaps most strikingly, one proposed request for official documents from the President was amended after objection so that it “ ‘requested’ ” them rather than “ ‘direct[ing]’ ” the President to provide them. 3 id. , §1895, at 193. Insisting that the House proceed through its impeach

ment power is not a mere fo rmality. Unlike contempt, which is governed by the rules of each chamber, impeach

ment and removal constitutionally requires a majority vote by the House and a two-thirds vote by the Senate. Art. I, §2, cl. 5; §3, cl. 6. In addition, Congress has long thought it necessary to provide certain procedural safeguards to offi

cials facing impeachment and removal. See, e.g. , 3 Annals of Cong. 903 (1793) (Rep. W. Smith). Finally, initiating im

peachment proceedings signals to the public the gravity of seeking the removal of a consti tutional officer at the head of a coordinate branch. 940 F. 3d 710, 776 (CADC 2019) (Rao, J., dissenting).

* * * Congress’ legislative powers do not authorize it to engage in a nationwide inquisition with whatever resources it chooses to appropriate for itself. The majority’s solution— a nonexhaustive four-factor test of uncertain origin—is bet

ter than nothing. But the power that Congress seeks to ex

ercise here has even less basis in the Constitution than the majority supposes. I would reverse in full because the power to subpoena private, no nofficial documents is not a necessary implication of Congre ss’ legislative powers. If Congress wishes to obtain these documents, it should pro

ceed through the impeachment power. Accordingly, I re

spectfully dissent._________________

_________________ 1 Cite as: 591 U. S. ____ (2020)

A LITO , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

Nos. 19–715 and 19–760

DONALD J. TRUMP, ET AL ., PETITIONERS 19–715 v. MAZARS USA, LLP, ET AL

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

DONALD J. TRUMP, ET AL ., PETITIONERS 19–760 v. DEUTSCHE BANK AG, ET AL

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

J USTICE A LITO , dissenting.
J USTICE T HOMAS makes a valuable argument about the constitutionality of congressi onal subpoenas for a Presi

dent’s personal documents. In these cases, however, I would assume for the sake of argument that such subpoe

nas are not categorically barred. Nevertheless, legislative subpoenas for a President’s personal documents are inher

ently suspicious. Such documents are seldom of any special value in considering potential legislation, and subpoenas for such documents can easily be used for improper non-leg

islative purposes. Accordingly, courts must be very sensi

tive to separation of powers issues when they are asked to approve the enforcement of such subpoenas. In many cases, disputes about subpoenas for Presidential documents are fought without judicial involvement. If Con

gress attempts to obtain such documents by subpoenaing a President directly, those two heavyweight institutions can2 TRUMP v. MAZARS USA, LLP

A LITO , J., dissenting use their considerable weapons to settle the matter. See
ante , at 10 (opinion of the Court) (“Congress and the Presi

dent maintained this tradition of negotiation and compro

mise—without the involvement of this Court—until the present dispute”). But when Congress issues such a sub

poena to a third party, Congress must surely appreciate that the Judiciary may be pulled into the dispute, and Con

gress should not expect that the courts will allow the sub

poena to be enforced without se riously examining its legiti

macy. Whenever such a subpoena comes before a court, Con

gress should be required to make more than a perfunctory showing that it is seeking the documents for a legitimate legislative purpose and not for the purpose of exposing sup

posed Presidential wrongdoing. See ante , at 12. The House can inquire about possible Presidential wrongdoing pursu

ant to its impeachment power, see ante , at 17–21 (T HOMAS , J., dissenting), but the Committees do not defend these sub

poenas as ancillary to that power. Instead, they claim that the subpoenas were issued to gather information that is relevant to legislative issues, but there is disturbing evidence of an improper law enforce

ment purpose. See 940 F. 3d 710, 767–771 (CADC 2019) (Rao, J., dissenting). In addition, the sheer volume of doc

uments sought calls out for explanation. See 943 F. 3d 627, 676–681 (CA2 2019) (Livingston, J., concurring in part and dissenting in part). The Court recognizes that the decisions below did not give adequate consideration to separation of powers con

cerns. Therefore, after setting out a non-exhaustive list of considerations for the lower co urts to take into account,
ante , at 18–20, the Court vacates the judgments of the Courts of Appeals and sends the cases back for reconsider

ation. I agree that the lower courts erred and that these cases must be remanded, but I do not think that the consid

-3 Cite as: 591 U. S. ____ (2020)

A LITO , J., dissenting erations outlined by the Court can be properly satisfied un

less the House is required to show more than it has put for

ward to date. Specifically, the House should provide a description of the type of legislation being cons idered, and while great speci

ficity is not necessary, the de scription should be sufficient to permit a court to assess whether the particular records sought are of any special importance. The House should also spell out its constitutional authority to enact the type of legislation that it is contem plating, and it should justify the scope of the subpoenas in relation to the articulated leg

islative needs. In addition, it should explain why the sub

poenaed information, as opposed to information available from other sources, is needed. Unless the House is required to make a showing along these lines, I would hold that en

forcement of the subpoenas cannot be ordered. Because I find the terms of the Court’s remand inadequate, I must re

spectfully dissent.