Author: Michael Stern

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Representative Forsyth on Impeachment and the Contempt Power

As part of my series on impeachment and the contempt power, I have been reading the 1818 House debate on the contempt proceeding against Colonel John Anderson. I will have more to say on this subject presently, but today I want to flag an argument made by Representative Forsyth, who was one of the leading figures in the debate. The question before the House was whether it possessed the power to punish Anderson, who had attempted to bribe a member of the House. Forsyth argued strongly that the House did indeed possess this power.

In citing these remarks, it is important to emphasize that Anderson’s case had nothing whatsoever to do with impeachment or with any alleged misconduct by the president or any executive branch officer. Rather, Forsyth discusses impeachment (as did several others on his side of the argument) as evidence that the Constitution necessarily contemplated that the House could exercise the contempt power:

Judging that the time might arrive when a President would conspire with corrupt and ambitious men, of his own country or of a foreign nation, to change his temporary and limited authority to a permanent and despotic power, [the framers] supposed a sufficient barrier was erected to defeat such conspiracy, by giving to this House the power of impeachment, and the Senate the authority to judge and punish the offender, when brought to the bar by the charges of the people, and convicted by proper evidence. Has it not occurred to the members of this House, especially those [who argued the House lacked the power to punish for contempt], that the efficacy of this provision resides wholly in the power of the House and Senate, respectively, to issue process of attachment for contempt?

31 Annals of Congress 745 (emphasis added). Again, Forsyth is advancing a hypothetical that illustrates most clearly, in his view, that the House may punish for contempt. He continues:

A President forms treasonable designs against the United States. By one those fortunate events which, in the order of Providence, usually occurs to defeat the machinations of guilt, a partial discovery of the design is made, and an inquiry is instituted; you ascertain the sources from which which accurate and certain information is to be procured. How are you to compel the production of the treasonable correspondence in their custody? By attachment for contempt.

Id. (emphasis added). Forsyth had a vivid imagination, did he not?

But he doesn’t stop there. He anticipates the argument that a law could be passed making it a crime to withhold information from Congress (as it would be about 40 years later). Such a law would be inadequate:

Sir, it is vain to say we can provide by law for such an occurrence. Such provision is impossible. You make laws, but these laws are nugatory. You may provide penalties, but to inflict them must be judicial process, trial, conviction and sentence. The inevitable delay is ruinous to the country, and gives to the traitors the time to consummate their horrible designs. But even the guilty witness, the contemner of your authority, escapes the punishment provided by your law. The same Constitution under which you defined his offense, and annexed an appropriate punishment, gives to the President, for whom he commits it, the power of pardoning the offender. You have the consolation to know that he is convicted, and he has the consolation of laughing at an impotent branch of the Legislature, called, in derision, the Grand Inquest of the Nation!

Id. (emphasis added).

Note that Forsyth anticipated that a statutory contempt procedure would be inadequate because it would take too long and because the president would in any event pardon the guilty witness who was acting on his behalf. But he did not anticipate that the president could block prosecution in the first place.

Even Forsyth could not imagine the Office of Legal Counsel.

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Must Congress Allow Agency Counsel to Attend Depositions?

Last week I wrote a piece for Just Security regarding the State Department’s refusal to produce certain officials for depositions requested by several House  committees (relating, of course, to the Ukraine affair). Among other things, I addressed the question of whether Congress is required to allow government counsel to attend depositions of the current or former officials of their department or agency. OLC (surprise!) says the answer is yes. In my view, the correct answer is no.

Anyway, I thought it would be helpful to collect the materials in one place. Here is the link to the piece. And here are the relevant House rules and regulations.

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Is the Trump Administration Overwhelming the House Counsel’s Office?

One question that I keep getting from reporters relates to how fast (or slowly) the various court cases related to the House’s investigation of the president are moving. While these cases are moving at a reasonable clip for ordinary litigation, they are not proceeding fast enough to enable the House to obtain any of the desired information during this session and perhaps not fast enough to get the information by the end of the congress.

For example, one of the cases (I think it was the Judiciary Committee’s application for grand jury materials) was filed at the end of July or early August, and the parties agreed to a briefing schedule that went through September. This seemed to me a rather leisurely pace, given the House’s contention that it needed the information for the purpose of considering articles of impeachment. When I asked about this on Twitter, several folks offered the explanation that nobody is in DC in August.

Maybe. I wonder, though, whether part of the reason is simply that the House Counsel’s office does not have the bandwidth to handle all of these cases simultaneously. The office currently has nine lawyers, according to the website, which is  a lot more than it had when I was there (when we typically had four or five), not to mention more than can reasonably be accommodated in its existing space. It also is receiving some help (apparently on a pro bono basis) from outside lawyers.

Still, this is not a lot of firepower to deal with the volume of work that the office currently has. It is currently representing House committees in six cases involving congressional investigations into the administration (three initiated by the House, three by President Trump or the Trump administration). It has also been involved in a number of other significant cases this year, including litigation over the border wall, the census, and the Affordable Care Act. Presumably its lawyers are also involved in advising the leadership and committees on legal issues that seem to pop up on a daily basis (e.g., relating to the Ukraine whistleblower, the congressional subpoena to Rudy Giuliani, and efforts to depose State Department officials). All of which is on top of the House Counsel’s normal duties.

Which raises the question whether the Trump administration’s legal resources are simply overwhelming the House Counsel’s office. Trump’s  personal lawyers alone probably outnumber the House Counsel’s entire legal staff. And the executive branch has an essentially unlimited number of lawyers to work on these cases and issues. All of which raises the further question whether this is a deliberate strategy or something that they just lucked into?

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Contempt and Charles Pinckney

Whether Congress (or, more precisely, each house of Congress) has the power to punish nonmembers is a question not directly addressed by the Constitution. See Josh Chafetz, Congress’s Constitution: Legislative Authority and the Separation of Powers 171 (2017) (“Unlike the congressional houses’ authority to punish their members . . ., their authority to punish nonmembers has no explicit textual basis in the federal Constitution.”); Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 212 (2007) (“The Houses’ power to punish non-Members for contempt rests upon shakier footing than their power to punish Members.”). Like whether a sitting president can be indicted or prosecuted, the existence (and scope) of the congressional contempt power was understood to be an open question from the earliest days of the Republic. But while the Supreme Court has never had occasion to address the former question, it has seemingly resolved the latter, having repeatedly upheld the exercise of the contempt power against nonmembers.

I say “seemingly” because, as we shall see, there is reason to believe the executive branch would relitigate this fundamental issue should the necessity arise. Therefore, in today’s post I will lay out the background of the original debate about the contempt power through the story of Charles Pinckney, who was (among other things) a delegate from South Carolina to the Philadelphia Convention. I do so not only because it is an interesting and untold (or at least undertold) story, but because it may very well play a significant role in any future litigation over the validity of the contempt power. For a foretaste of this argument, see Professor Michael McConnell’s claim in a recent Fox News interview that the Convention “voted down” Pinckney’s proposal to give Congress the contempt power. (This claim is not exactly accurate, as the Convention did not actually take a vote on the proposal, but it is close enough for government work.) Continue reading “Contempt and Charles Pinckney”

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Inherent Contempt and Impeachment

Recently the Good Government Now organization (with which I am loosely affiliated) has been advocating the revival of inherent contempt as a means of compelling executive branch officials to provide information demanded by Congress. As you probably know (if you read this blog), inherent contempt allows either house of Congress to arrest individuals who defy its orders and imprison them until they comply. Under a proposal by my friend and former colleague Mort Rosenberg, the House would adopt a new inherent contempt procedure in which fines, rather than imprisonment, would be the principal sanction to compel executive branch officials to comply with subpoenas and other demands for information.

While I do not object to the use of inherent contempt in the proper circumstances, I have long been skeptical of using it as a means of resolving legislative-executive disputes over information. This is so both for constitutional and practical reasons. The constitutional issues we will get into in more detail in future posts. For now, the important point is that those issues arise primarily in the context of ordinary congressional oversight. The calculus is different in the context of a judicial proceeding such as impeachment. The argument for employing inherent contempt against recalcitrant witnesses, including executive branch officials, in an impeachment proceeding is constitutionally much stronger for reasons I will endeavor to explain in upcoming posts.

The practical problems, on the other hand, are another matter. See Andrew McCanse Wright, Congressional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881, 933 (2104) (“To say the least, it would be impractical and unwise for congressional security forces to attempt to detain executive branch officials and haul them off to the congressional brig, although commentators occasionally call for it.”).  For one thing, there is not actually any “congressional brig,” at least not one suitable for holding anyone for a significant period of time. For another, there is the “specter of interbranch violence,” particularly for detainees that have their own security details. See id. These problems are not ameliorated by the fact that the proceeding involves impeachment rather than oversight.

Arguably, the use of fines could help to address the practical problem. As a general rule, I doubt that Congress has the authority to impose fines as a form of punishment, but I think there may be a way to use them in the context of an impeachment proceeding that would stand up in court. Therefore, if the House is considering formally authorizing an impeachment proceeding, it should seriously consider a provision to authorize the use of inherent contempt, including monetary fines, against those who withhold information from the inquiry. Importantly, however, this authority should be limited to impeachment.

I will lay out the reasons for my position in a series of posts, beginning with some historical background on legislative privilege and contempt.

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Impeachment and Constitutional Deliberation

The House Judiciary Committee has filed its long awaited lawsuit against Don McGahn, seeking declaratory and injunctive relief from the court with respect to McGahn’s refusal to appear before the committee to testify regarding his knowledge of matters described in the report of Special Counsel Robert S. Mueller III. Specifically, the committee is interested in matters such as “how President Trump used his official power to oust Special Counsel Mueller and end his investigation; to force then-Attorney General Jeff Sessions to transgress Department of Justice (DOJ) ethics rules to limit the scope of Mueller’s investigation; to demand that White House staff generate false accounts of the President’s conduct; and to influence witnesses not to cooperate with the investigation.” Complaint ¶ 2. The complaint repeatedly emphasizes that it needs this information in order to decide whether to recommend articles of impeachment against the president. See Complaint ¶¶ 1, 4, 10, 17, 19, 57, 61-62, 64, 95, 97, 100 & 105.

All of this is well and good. As we have discussed, McGahn is an important witness and there is no merit to DOJ’s claim that he is “absolutely immune” from testifying before Congress. The committee’s express invocation of the impeachment power further strengthens its claim for judicial relief and undermines what little persuasive value the OLC opinions on absolute immunity might otherwise have had.

It is important, however, not to conflate the committee’s litigation position and its constitutional responsibility regarding impeachment. The McGahn lawsuit is focused on substantiating specific allegations raised in the Mueller report, namely the obstruction of justice matters discussed in volume 2. See Complaint ¶ 1 (committee “is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel.”).

While the president’s conduct as described in volume 2 of the Mueller report clearly should be an element of any impeachment inquiry, it is questionable whether obstruction of justice alone can carry the weight of impeachment in this case. This is particularly true if one views obstruction as a specific statutory crime, rather than as a more colloquial term for President Trump’s implacable opposition to the Mueller investigation (or, for that matter, any other investigation he associates with the “deep state” or his political opponents).

For one thing, the special counsel declined to reach a conclusion as to whether Trump committed the crime of obstruction. Many believe he would have reached this conclusion had it not been for the OLC opinion prohibiting the indictment of a sitting president, but Mueller himself declined to substantiate this theory and it seems inadvisable to place much reliance on an unprovable hypothetical.

In addition, there are serious legal questions regarding whether the president’s exercise of his Article II powers, such as firing the FBI director or seeking to fire the special counsel, can constitute criminal obstruction. Professor Jack Goldsmith argues that “many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written.” This is a controversial position, but it is not a frivolous one. It is also not an issue likely to be settled in the course of an impeachment proceeding.

Finally, focusing on questions of criminal obstruction requires the committee to evaluate Trump’s state of mind. See Complaint ¶ 66 (“McGahn’s testimony would provide significant evidence of the President’s motivations for his actions.”). I am skeptical, however, that McGahn is going to be able to shed much light on the president’s motives. Other presidents (Nixon and Clinton) have attempted to obstruct legal investigations or proceedings, but they did so only when they felt they had no other choice. Trump’s words and actions in general, and specifically in connection with the Russia probe, appear to be visceral in nature and to have little connection to a rational calculation of the consequences. Perhaps this is a clever strategy on Trump’s part, but I expect McGahn is as perplexed as the rest of us.

This is by no means to suggest that Trump’s conduct is unimpeachable, so to speak. The constitutional standard of high crimes and misdemeanors is quite different than the criminal standard for obstruction of justice. Thus, Goldsmith observes that “[i]n combination with Trump’s other abuses of power over the past two and a half years, I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option.” The point here is that Congress’s task is more complicated than simply evaluating a handful of presidential actions to determine whether they satisfy the elements of criminal obstruction of justice. It must decide how to interpret and apply the constitutional standard of “high crimes and misdemeanors,” which is by design a more discretionary and less determinate function than that performed by a criminal court. See Neal Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Problems 169, 175-79 (2000). And it must do so in the context of Trump’s highly unusual behavior in office. Continue reading “Impeachment and Constitutional Deliberation”

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I’ll Take My Grand Jury Materials with a Hint of Impeachment

Last Friday, July 26, the House Judiciary Committee filed an application with the U.S. District Court for the District of Columbia seeking release of certain grand jury materials related to the report and investigation of former Special Counsel Robert S. Mueller III. The committee contends that the Mueller report “provided Members of Congress with substantial evidence that the President of the United States repeatedly attempted to undermine and derail a criminal investigation of the utmost importance to the nation.” Application at 1. Accordingly, “the House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity– approval of articles of impeachment.” Id. 

Some may view this, from a political perspective, as “impeachment lite” (Twitter wags had a variety of other terms like “impeachment-tinged” and “impeachment-infused”). From a legal perspective, however, I think this is probably good enough, at least for this particular controversy. Here’s why.

The committee’s primary argument is that the court should authorize the release of the grand jury information pursuant to Fed. R. Crim. P. 6(e)(3)(E), which provides “[t]he court may authorize disclosure of a grand jury matter . . . (i) preliminarily to or in connection with a judicial proceeding.” This provision is applicable here, the committee contends, because it is conducting an investigation to determine whether to recommend articles of impeachment with respect to the president. Application at 30-31. It bears emphasis that the committee does not contend this provision applies to congressional investigations outside the context of impeachment, nor would there be any basis for it to do so.

As we have discussed, controlling authority in the D.C. Circuit establishes that an impeachment proceeding qualifies as a “judicial proceeding” within the meaning of Fed. R. Crim. P. 6(e)(3)(E)(i). Specifically, a Senate impeachment trial is judicial in character and a House impeachment inquiry is therefor preliminary to or in connection with a judicial proceeding for these purposes. Application at 28-29.

To be sure, there is no Supreme Court authority on point, and it is possible that the Court would conclude that the term “judicial proceeding” refers to a proceeding conducted by the judiciary, not merely a proceeding that is judicial in character. (Of course, a Senate impeachment trial of the president is presided over by the chief justice, somewhat blurring this distinction.). However, if the Court were to reject the committee’s position in this respect, I strongly suspect that it would accept its alternative argument (currently foreclosed in the D.C. Circuit) that a federal court retains inherent authority to disclose grand jury materials under these circumstances. See Application at 40-41. I do not believe the Supreme Court would hold that there is no legal mechanism by which grand jury material relevant to impeachment can be transmitted to the House (or Senate), a conclusion that would be in considerable tension with the Constitution’s preference (at least) for impeachment rather than indictment of a sitting president. See, e.g., Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L. J. 2133, 2158 (1998) (citing with approval President Nixon’s argument that “[w]hatever the grand jury may claim about a President, its only possible proper recourse is to refer such facts, with the consent of the court, to the House and leave the conclusions of criminality to the body which is constitutionally empowered to make them”); see also id. at 2156 (“any information gathered with respect to executive branch officials that could reflect negatively on their fitness for office should be disclosed to Congress”).

The more difficult issue for the committee is establishing that disclosure of grand jury materials in these circumstances would be for purposes of impeachment, rather than simply for general oversight. As I have written elsewhere, the committee would clearly be in a stronger position if the House had formally initiated an impeachment inquiry. That being said, nothing in the language of Rule 6(e)(3)(E)(i) expressly requires the formal initiation of any particular proceeding and to the contrary the rule suggests that the disclosure may occur before (“preliminarily to”) such initiation.

Here it is worth noting that while it is the Senate impeachment trial that has been held to be a “judicial proceeding” for these purposes, there is also a strong argument that the House’s exercise of its power of impeachment likewise constitutes a judicial proceeding. Certainly the House’s power is judicial, rather than legislative, in nature. It is possible, however, to argue that the House’s proceeding are less judicial than the Senate’s because the latter performs the adjudicative function of a criminal court while the former performs the investigative function of a grand jury. In any event, it probably makes little difference to the outcome of the committee’s application because in either case the committee must persuade the court that its current investigation is sufficiently tied to the impeachment process.

To meet this burden, the committee points to the following: (1) impeachment falls within the committee’s jurisdiction and articles of impeachment (including in the current congress H. Res. 13, a resolution calling for the impeachment of President Trump) are invariably referred to the committee; (2) the committee has repeatedly indicated in various ways, such as statements by the chairman and a contempt report adopted by vote fo the committee, that it is assessing whether to recommend articles of impeachment with respect to the president; (3) the House Rules Committee, in its report accompanying H. Res. 430, similarly explained that the committee was considering whether to recommend such articles of impeachment; and (4) the full House voted to adopt H. Res. 430, which confirms the committee’s investigatory authority with regard to the Mueller report and related matters and expressly authorizes it to continue its efforts to obtain information, including by filing an application for grand jury material pursuant to Fed. R. Crim. P. 6(e)(3)(E). This authorization by the House implicitly recognizes that the committee is seeking grand jury information for impeachment purposes since, as mentioned previously, there is no other basis upon which the committee could avail itself of this provision.

While there are no guarantees in litigation, in my view this is a pretty strong case. Given the language of the rule and the past flexible practice in the context of impeachment, the committee should prevail in its application. Whatever the outcome, though, it will be interesting to see how the Justice Department responds.

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What Does the D.C. Circuit’s Order In Blumenthal v. Trump Tell Us?

For one thing, there is not likely to be any emoluments discovery in this case in the near future, if at all. For another, we are likely to get a significant legislative standing decision from the D.C. Circuit in the not too distant future.

On July 19, a panel of the D.C. Circuit (Judges Millettt, Pillard and Wilkins, all Obama appointees) issued an order which, while denying President Trump the immediate relief he sought, strongly agreed with the president’s view that the legal issues in the case should be resolved before discovery (or at least anything more than “limited discovery”) takes place. Specifically, the panel indicated that there are two open legal issues that are potentially fatal to the claims brought by the congressional plaintiffs. It states that “because either of those issues could be dispositive of this case, it appears to this court that the district court abused its discretion” by refusing to certify the case for immediate appeal.

The D.C. Circuit also indicated its concerns with “the separation of powers issues present in a lawsuit brought by members of the Legislative Branch against the President of the United States.” These concerns, it strongly suggested, counsel against moving forward with discovery if the case may be resolved on legal grounds alone. (The district judge, Judge Sullivan, took the hint and suspended discovery immediately after the D.C. Circuit issued its order.).

Although the panel remanded the case to Judge Sullivan to reconsider the certification issue, its directive seems pretty clear: certify immediately. There is one caveat, however. The panel suggested that the district court might wish to address “whether discovery is even necessary (or more limited discovery would suffice) to establish whether there is an entitlement to declaratory and injunctive relief of the type sought by plaintiffs.” This raises the possibility the plaintiffs could win a victory at the district court level (e.g., an order from Judge Sullivan declaring that President Trump is violating the Foreign Emoluments Clause), which would be politically useful even though unlikely to survive legally.

The two legal issues that will soon be before the D.C. Circuit are (1) whether there is a cause of action against the president for violations of the Foreign Emoluments Clause and (2) whether the congressional plaintiffs have standing to seek relief for violations of the clause. The latter question, as noted in my last post, has potentially broader significance for subpoena enforcement and other litigation by the House against the Trump administration. The panel made only one cryptic comment on the issue, noting the “standing question arises at the intersection of precedent” and citing Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1945 (2019) and Coleman v. Miller, 307 U.S. 433 (1939).

Based on the current state of legislative standing precedent, I think the Blumenthal plaintiffs are likely to lose on standing. The question is whether or not they will lose on narrow grounds that otherwise leave untouched the ability of each house to enforce subpoenas and other information demands in court.

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Emoluments Suits Status: Keep an Eye on Blumenthal v. Trump

The Fourth Circuit recently issued its decision in District of Columbia v. Trump (the emoluments lawsuit brought by DC and Maryland against President Trump) and, not surprisingly, the court ordered the case dismissed for lack of standing. Equally unsurprising was the court’s criticism of the district judge, who it found had committed a “clear abuse of discretion” in refusing to certify the case for appeal.

The court’s reasoning with respect to the plaintiffs’ standing theory (namely that these jurisdictions or their citizens are suffering competitive injury from the Trump Hotel in DC) largely tracks my earlier observations. This standing theory fails because (1) it is sheer speculation whether Trump’s alleged violations of the emoluments clauses inflict any injury at all, i.e., Trump’s relationship with the Trump Hotel may help its competitors as much or more than it hurts them; and (2) these competitive interests are not in any event within the zone of interests protected by the emoluments clauses.

The court gives short shrift, however, to one theory that seemed more plausible to me. The domestics emoluments clause appears designed to ensure that no state exercises undue influence over the president. To the extent Trump has accepted prohibited emoluments from certain states, it is arguable that other states (such as Maryland) have suffered an injury within the zone of interests protected by the clause. The Fourth Circuit rejected this theory as an attempt to assert a “generalized grievance,” but it did not directly confront the proposition that the clause protects the states qua states, not just the general public.

What does this mean for the prospects for the three emoluments lawsuits against Trump? Although the plaintiffs may seek further review, D.C. v. Trump is unlikely to go anywhere now. The other suit predicated on a competitive injury theory, CREW v. Trump, was dismissed by the district court and is now pending before the Second Circuit. It seems unlikely to make it to the discovery stage either, at least anytime soon.

The case to keep an eye on is Blumenthal v. Trump, which was filed by Democratic members of Congress in federal court in D.C. It presents distinct standing issues. The plaintiffs claim that they have suffered an institutional injury due to Trump’s failure to present (alleged) foreign emoluments to Congress for its consent under the Foreign Emoluments Clause. Judge Sullivan accepted this theory and refused to dismiss the case for lack of standing. This decision, however, is questionable at best under existing Supreme Court precedent, particularly in light of the Court’s most recent ruling on legislative standing.

The Justice Department has sought a writ of mandamus from the D.C. Circuit to prevent Judge Sullivan from moving forward with discovery in the Blumenthal case. It has indicated that if it does not receive a decision from the appellate court by July 22, it may seek relief from the Supreme Court, (hat tip: Seth Barrett Tillman). Should the Supreme Court agree to hear the case, it could use the opportunity to address broader questions of legislative standing that remain unresolved, which could affect the Ways and Means committee lawsuit to obtain Trump’s tax returns and other contemplated House litigation against the administration.

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What to Look For in the Mazars Oral Argument

Tomorrow the Mazars subpoena case will be argued before the D.C. Circuit (Judges Tatel, Millett and Rao). In this appeal, President Trump (in his private capacity) has advanced a novel and audacious theory in support of his contention that the congressional subpoena at issue lacks a “legitimate legislative purpose.” Trump is asking the D.C. Circuit to reverse the decision of the district court, which denied Trump’s application for an injunction to prevent Mazars, his accounting firm, from producing financial records responsive to the subpoena.

As Judge Mehta pointed out in his decision below, the legal standards employed by the courts to review congressional subpoenas and investigations are generally so deferential that they “do not substantially constrain Congress.” Rather than fighting this proposition head on, Trump’s lawyers focus primarily on seeking a carve-out from Congress’s broad investigatory and oversight authority for those who hold constitutional offices (i.e., the president and Supreme Court justices).

The lynchpin of this argument is the distinction between Congress’s legislative and judicial powers. Although it has long been understood that Congress must have some ability to obtain information needed to consider and craft legislative measures, the scope of this power was once highly controversial. Following the Supreme Court’s decision in Kilbourn v. Thompson, 103 U.S. 168 (1880), which stressed that Congress, unlike the British Parliament, was not a court of general jurisdiction, it was widely believed that Congress’s authority to compel the production of information for legislative purposes was limited at best. This reading of Kilbourn, however, was undermined by later Supreme Court cases beginning with McGrain v. Daugherty, 273 U.S. 135 (1927). These subsequent cases, Judge Mehta noted, render Kilbourn “largely impotent as a guiding constitutional principle.”

Trump attempts to revive Kilbourn for a limited purpose. His theory goes something like this. Congress generally has broad legislative and oversight authority with respect to the departments and agencies of government, including offices created by statute. With respect to constitutional offices, however, Congress’s legislative authority is “severely constrained.” Trump Br. at 4, 38. Thus, Trump claims that Congress cannot rely on its legislative authority to seek his financial records because these records are not relevant to a subject on which legislation may be had.

To be sure, Trump acknowledges that Congress also has powers of a judicial nature. But, following Kilbourn, he stresses that these are not of general scope, but are limited to those areas expressly identified in the Constitution, namely judging elections, disciplining members, and, most importantly, impeachment. For those who hold constitutional offices, therefore, impeachment is the only method (Trump argues) by which Congress can investigate alleged wrongdoing.

Thus, “[w]hile Congress could presumably use subpoenas to advance these non-legislative powers, the Committee has not invoked them.” Trump Br. at 45. In fact, Trump takes pains to demonstrate that Speaker Pelosi has disavowed any intent to go down the path of impeachment. Trump Br. at 47-48.

The novelty of this argument is illustrated by the fact that one of the principal “authorities” cited in Trump’s brief is a three-page law student note that is more than a century old. See Note, Congressional Power to Punish for Contempt, 30 Harv. L. Rev. 384 (1917) (cited in Trump Br. at 17-18). The apparent utility of this note from Trump’s perspective is that it vividly distinguishes congressional contempt in the context of impeachment from that in the context of legislative oversight:

A committee of the House considering an impeachment is like a Grand Jury hearing evidence which may lead to the return of an indictment– it is a judicial body and it is one provided for by the Constitution. It must surely have the power to call witnesses, and the power is of little avail if these witnesses may contemptuously refuse to respond, or may be influenced or intimidated by outside contempts of the body before whom they are testifying. If the House is to sit in a judicial capacity, it must have the protection that a court has.

Note, 30 Harv. L. Rev. at 385. Yet even this note, which predates McGrain, concludes that “[t]he power to legislate . . . by necessary implication include[s] the power to examine witnesses and to compel them to respond by contempt proceedings.” Id. at 386.

Why would the Trump team rely on what seems like a very long shot argument? The short answer is I don’t know, but three possibilities come to mind. First, Trump’s lawyers may simply believe this is the best argument available to them. Second, it may be thought that stressing the lack of impeachment proceedings helps Trump’s cause beyond the confines of this particular case (e.g., with public opinion and/or with courts that will be ruling on more difficult subpoena enforcement issues in the months ahead). Third, Trump’s legal team may believe that advancing a bold legal theory is the best way to get the Supreme Court to grant certiorari, which strings out the proceedings even if it is unlikely to deliver an ultimate victory.

The two things to look for in tomorrow’s argument: (1) how much interest does the panel show in impeachment and why the House has declined to initiate impeachment proceedings to date, and (2) whether Judge Rao (the lone Republican appointee) seems at all open to Trump’s arguments. A unanimous panel opinion will make further review less likely.