Trump files brief challenging House Committees right to subpoena his financial records

Donald Trump and his companies have filed their brief in the Supreme Court seeking to block release of his financial data to Congress.  Asserting a rigid division of powers within the federal government Trump challenges the authority of three inquiring committees of the House of Representatives.  Concerned that the President is not an honorable man, the House committees sought to examine his financial records. Subpoenas were issued to the Trump accountants at Mazars, LLP, and Deutsche Bank which financed many of his ventures.   Both subpoenas were upheld by the U.S. Courts of Appeals Courts for the  Second and District of Columbia Circuits.  The Trump brief begins:

QUESTION PRESENTED Whether three committees of the House of Representatives had the constitutional and statutory authority to issue subpoenas to third-party custodians for the personal records of the sitting President of the United States.

****

To call these subpoenas unprecedented would be an understatement. This is the first time that Congress has subpoenaed private records of a sitting President, and these companion decisions are the first time that courts have upheld congressional subpoenas for any sitting President’s records of any kind. Under the D.C. Circuit’s decision, Congress can subpoena any private records that it wishes from the sitting President on the mere assertion that it is considering legislation that might require presidents to disclose that information. And, in the Second Circuit’s view, Congress may subpoena private records of the sitting President as a “case study” into any legislative issue it might be investigating. The lack of historical precedent for any of these subpoenas should be a strong signal that something is amiss. 

Congress’s authority to issue subpoenas in aid of its lawmaking function is implied—not express. The Court has held that implied powers may not be used to alter the structure of the government or otherwise invoke authority that is so fundamental that it would be found in the Constitution’s text if it existed. There is nothing auxiliary, subordinate, or incidental about a legislative demand for the personal documents of the sitting President. There is every reason to doubt, then, that this is an implied power that Congress may rely on to defend these subpoenas.

“Congress cannot undertake a legislative investigation” of the President “if the ‘gravamen’ of the investigation rests on ‘suspicions of criminality.’”...(quoting Kilbourn v. Thompson, 103 U.S. 168, 193, 195 (1880)). Rather, Judge Rao explained, “allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment.”

Thus, whether the subpoena has “a legislative purpose presents a serious conflict between Congress and the President.”  Judge Rao, dissenting, concluded that this subpoena was not exercising “legislative power” since the Committee explicitly” expressed “a purpose of investigating illegal conduct of the President, including specific violations of ethics laws and the Constitution.” 

At the heart of the President's argument is Trump's embrace of the dissent by recently appointed judge of the District of Columbia Circuit Court of Appeals Neomi Rao.  The former clerk to Justice Clarence Thomas posed an argument that sharply cabins the power of the House of Representatives to investigate presidential misconduct:  Only if the House explicitly invokes its "distinct" and "narrowly circumscribed" impeachment power can it "investigate" a President's misconduct.  Any other investigation, Rao argued, is an abuse of its legislative power which impinges the executive branches law enforcement authority.   To the extent Congress sought information in contemplation of legislation she saw mere pretext because the House had impeachment in mind but had acted without "formally" invoking the impeachment authority. 

The danger posed by Rao's view, now embraced by Donald Trump, is that a divided Congress whose majorities are of different parties is hobbled in its investigatory powers.  That makes the House even more unlikely to charge and the Senate vote to remove a lawless president.  Removal requires a two thirds super-majority of the Senate.  If the remedy of impeachment and removal is unfeasible the Rao/Trump reading of the branches powers effectively immunizes this and future Presidents from the consequences of their misconduct.

- gwc