Circuit Judge Neomi Rao's dissent in Trump v. Mazars rests on a steroidal view of executive authority that sharply limits Congressional power to investigate the now President's conduct before taking office. She voices the view that Congressional oversight power ends where enforcement begins. That indistinct line is inherent in our constitutional scheme - where powers overlap as well as separate. Overlap is of particular importance today when the Attorney General voices the steroidal view of Presidential power commonly called the "unitary executive" theory.
That view - appropriately disparaged as monarchical - was spurned by by Judge Ketanji Brown Jackson in Committee on the Judiciary v. Donald McGahn. The judge denied the former White House Counsel's motion to quash the House of Representatives subpoena to testify in the ongoing impeachment proceeding.
The duty to cooperate with the Congress - so long as its investigation evinces a legislative purpose.
In her thorough affirmation of the duty to comply with a Congressional subpoena and recognition of the prerogatives of Congress Judge Jackson turns to the 1957 opinion of Chief Justice Warren in Watkins v. United States. The Court there upheld a subpoena by HUAC - the House Un-American Activities Committee - to investigate activities of the Communist Party while affirming also due process requirements that a subject of investigation be given reasonable notice of the matters under inquiry. An excerpt from the Warren opinoin - to capture its spirit is below.
- GWC
"We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible.
It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees, and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.The rudiments of the power to punish for "contempt of Congress" come to us from the pages of English history. The origin of privileges and contempts extends back into the period of the emergence of Parliament. The establishment of a legislative body which could challenge the absolute power of the monarch is a long and bitter story. In that struggle, Parliament made broad and varied use of the contempt power. Almost from the beginning, both the House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege."
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