//  7/29/19  //  In-Depth Analysis

Cross-posted from Balkinization

The answer to the question in my title is obvious, isn't it?:  Of course Congress can do so.  According to Donald Trump and his (personal) attorneys, however, the correct answer is “no.”  And in a series of pending cases involving challenges to congressional efforts to obtain the President’s financial and tax records, they’re urging the courts to hold that Congress’s oversight and regulatory authorities simply don't extend to investigating the wrongdoing, foreign influence over, and possible conflicts of interest of, the President of the United States.

It’s hard to exaggerate just how profound a challenge this is to our longstanding system of checks and balances.  Yet these cases, and Trump's arguments in them, have mostly flown under the radar: They haven't received much attention in the press or among legal observers.  Perhaps that's as it should be:  After all, if the arguments are as extreme as I'm suggesting, maybe there's nothing much to worry about.  The Trump team is deadly serious, however; the Department of Justice might come to its aid; and it’s possible Trump’s lawyers will find a receptive audience among at least some Supreme Court Justices.  Therefore I thought it might be worthwhile to unpack those arguments a bit in this post.

Background on Congress's Oversight Authority and "Informing" Function

For virtually all of its history, going back at least to the 1792 House investigation of the St. Clair expedition, Congress has exercised its “oversight” powers to investigate the executive branch—not so much to assist the legislature in the shaping or enactment of federal laws (although that’s certainly one common result of such oversight), but rather, to inform itself, and the public, of how the federal government is working, and of any possible problems in its operation, including corruption, malfeasance, poor judgment, inefficiencies, foreign influence, etc.

Woodrow Wilson penned the canonical articulation of this congressional “informing” function and its virtues, in his book Congressional Government, written in 1885:

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 constituents.  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; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.

As the Supreme Court has noted (citing Wilson), “[f]rom the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.” Watkins v. United States, 354 U.S. 178, 200 n.33 (1957).  We’re all very familiar with it—indeed, you’ve probably seen it in action far more frequently than you’ve witnessed hearings designed to help craft new legislation.  Think of Watergate, and Whitewater, and Iran-Contra, and Benghazi, and “Fast and Furious,” and (much earlier) the Teapot Dome Scandal—and many more.  Indeed, many Americans likely assume, based simply on what they’ve witnessed on television, that investigating the executive branch is the primary thing Congress does—and in an era where Congress enacts almost no important legislation, it’s perhaps the most important congressional function, too.  

As Wilson’s famous description suggests, the function of informing Congress and the public about the workings—and possible dysfunctions—of the government and its officers plays at least two critical roles in our system: 

First, and most directly, it facilitates the ability of a “self-governing people” (Wilson) to understand how their government is operating, which, among other things, gives the people the knowledge necessary to decide how to shape and regulate that government—and to decide who the officers of the government ought to be going forward.  See Watkins, 354 U.S. at 200 (“The public is, of course, entitled to be informed concerning the workings of its government.”).

Secondly, congressional inquiry and oversight is an absolutely critical deterrent to executive wrongdoing and maladministration—in Wilson’s words, “discussed and interrogated administration is the only pure and efficient administration.”  As Professor Bill Marshall—a former Deputy White House Counsel—has written, “Congress’s power to investigate plays a critical role in the checks and balances of U.S. democracy. . . .  Without some outside check on the Executive Branch, there would be little to discourage unscrupulous officials from acting in their own, and not in the nation’s, best interests.” 

It’s difficult to overstate the practical significance of this second, “checks and balance” function of congressional oversight:  As virtually anyone who’s worked in the executive branch will attest, the prospect (or threat) of having to explain one’s self, and one’s decisions, to a congressional chair or staff, or in congressional hearings under the harsh glare of network lights, has a significant impact on how one performs her work as an official--it tempers any impulses to overstep, cut corners, or disregard norms designed to protect the public interest.  Not surprisingly, then, the Supreme Court has described Congress’s “informing function” as “indispensable,” and admonished that it’s “not to be minimized.”  United States v. Rumely, 345 U.S. 41, 43 (1953).

The Current Challenges

More than any other president, Donald Trump has extensive financial holdings; is obsessed with promoting and protecting his own wealth and reputation regardless of the national interest; has been unwilling to disclose details of his financial affairs and entanglements; and has a predilection for cozying up to foreign autocrats from nations that are hostile to the United States—one of which just so happens to have made elaborate efforts to distort the American electoral system in order to help get Trump elected.

Naturally, then, the House of Representatives is interested in learning about Trump’s finances, his possible conflicts of interest, whether he’s complied with the laws designed to prevent such conflicts (including the Foreign Emoluments Clause of the Constitution), and the ways, if any, in which the exercise of his duties on behalf of the nation might be compromised by his relations with foreign entities and nations, or by his other financial entanglements.  Accordingly, House committees have subpoenaed Trump's accountants (Mazars, Inc.) and his banks (Deutsche Bank and Capital One) to produce Trump’s own (and his family’s and businesses’) financial records within their custody, and the Ways and Means Committee has asked (and eventually subpoenaed) the Treasury Department to turn over Trump’s federal tax records.

Trump'a accountants and banks are not objecting to the House subpoenas, but Trump himself, in his personal capacity, has sued to prevent them from sharing the records with the House.  Meanwhile, Treasury Secretary Mnuchin has refused to share Trump’s tax records with the Ways and Means Committee, despite a statute, 26 U.S.C. § 6103(f), requiring that the Department “shall furnish” the Committee with “any” requested tax return information, and despite a Ways & Means Committee subpoena for the information. 

It’s important to stress at the outset that Trump is not asserting executive privilege in any of these cases.  Instead, the fundamental theory Trump (and Mnuchin) are relying upon is simply that Congress allegedly lacks any legitimate interest in obtaining the information about the President

And a fourth case filed last week, concerning Trump’s New York state taxes, demonstrates just how extreme this argument is.  Earlier this month the New York legislature passed, and Governor Cuomo signed, the Tax Returns Released Under Specific Terms (TRUST) Act.  The TRUST Act requires the New York Commissioner of Taxation and Finance to furnish a congressional tax committee, including the House Ways & Means Committee, with the New York State tax returns or reports of various federal officials (including the President), if, inter alia, the Chair of the congressional committee requests such reports or returns, certifies that the request is related to, and in furtherance of, a “legitimate task of the Congress,” and certifies that the committee already requested the U.S. Secretary of the Treasury to furnish “related federal returns or return information, pursuant to 26 U.S.C. Section 6103(f).”  Accordingly, if the House Ways & Means Chairman makes a request with the requisite certifications—something he has not yet done—then the New York Tax Commissioner will be required to furnish Trump’s New York state tax returns and records to the House Ways & Means Committee.

In response to the enactment of this new New York law, Trump has filed suit seeking an injunction that would prohibit the Ways & Means Chairman from simply requesting the New York government to furnish Trump’s state tax returns and from reviewing or using such tax information if New York voluntarily tenders it to the Committee.

According to Trump, then, it’s not simply that Congress lacks the power tocompel disclosure of information concerning the President, such as through a subpoena; because Congress allegedly has no legitimate investigatory interest, the House may not even ask a party to disclose such information voluntarily, or to receive such information from a willing third party.

I hope that sounds deeply alarming and counterintuitive to you.  Because it is. 

In the Mazars case in the U.S. District Court for the District of Columbia, Judge Mehta rejected Trump’s argument and entered judgment in favor of the House Committee on Oversight & Reform.  In the Deutsche Bank/Capital One case in the U.S. District Court for the Southern District of New York, Judge Ramos denied Trump’s motion for a preliminary injunction that would stop the banks from turning over Trump’s records.  

Both of these cases are currently on appeal.  A panel of the U.S. Court of Appeals for the D.C. Circuit (Tatel, Millett and Rao, JJ.) heard argument on July 12 in the Mazars case.  The Deutsche Bank/Capital One case in the U.S. Court of Appeals for the Second Circuit will be argued on August 23.

Meanwhile, the House Ways & Means Committee has sued the Treasury Department in the District Court for the District of Columbia, seeking an injunction that would require the IRS to furnish the tax records the committee subpoenaed and requested pursuant to § 6103(f).  And, as noted above, Trump himself has sued to prohibit the Ways & Means Committee from requesting or receiving Trump’s state tax returns from New York.  The district court judges (McFadden and Nichols, respectively) have not yet considered the merits of these latter two cases about the Trump tax returns. 

Trump’s Arguments

Trump’s argument that the House lacks any legitimate oversight interest or investigative authority to seek or obtain the President's financial and tax records can be found in each of the briefs his lawyers, led by William Consovoy, have filed in the Mazars and Deutsche Bank cases.  If you’d like to get a flavor of them, take a look at their opening brief in the Mazars case.[1]

There are two basic variations on the argument:  The first is about Congress’s investigative authority generally, and the second is about purported limits on Congress’s oversight authority when it comes to the President, in particular.

1.  The Argument that Congress Can’t Investigate Whether the Law has Been Violated

One of the reasons the House committees are seeking the financial information in question (but hardly the only reason) is to ascertain whether Trump has violated, or is violating, the law—including both statutory requirements and prohibitions (such as the obligations imposed by the Ethics and Government Act and prohibitions on fraud) and constitutional duties (e.g., Trump’s Take Care obligation and his oath) and limits (e.g., the prohibition on receiving gifts and emoluments from foreign states or officials).

According to Trump’s lawyers, the House doesn’t have any such power to investigate whether federal law has been violated.  Really.  They contend that that’s a form of “law enforcement,” and Congress doesn’t have the power to enforce the law.

To be sure, although Congress's investigative authority is broad, it can be abused (think of the McCarthy era), especially when it’s directed to private parties.  For that reason, the Supreme Court has warned that Congress may not simply “expose for the sake of exposure,” Watkins v. United States, 354 U.S. 178, 200 (1957), and has been appropriately attentive to individuals’ First and Fifth Amendment rights when they're required to provide testimony or evidence to Congress.  Moreover, and with particular respect to Trump's "law enforcement" argument, Chief Justice Warren explained in Watkins that Congress isn’t “a law enforcement or trial agency,” and “[i]nvestigations conducted solely . . . to ‘punish’ those investigated are indefensible.”  Id. at 187.

That doesn’t mean, however, that Congress can’t investigate whether federal officials have violated the law.  As the Chief Justice wrote in that same paragraph, id., it’s a “basic premise[] on which there is general agreement” that Congress’s power to conduct investigations “comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste” (a function that Warren enumerated as distinct from making “inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes”).

When Congress investigates whether officials have violated the law, it doesn’t issue charges that trigger further consequences, nor does it put the officials on trial (outside the context of an impeachment trial), nor adjudicate their guilt or innocence, nor deprive them of liberty, fine them, or otherwise impose punishment.  Those are “law enforcement” functions that belong to the other branches (and juries).  But legislative inquiries such as those at issue in the pending Trump cases don’t involve any of those functions.  The House Committees are no more engaged in “law enforcement” when they investigate whether Donald Trump has broken the law than the New York Times and Washington Post are when they conduct the very same sorts of investigative inquiries.  Simply stated, the fact that a House investigation may reveal unlawful conduct by government officials does not turn that investigation into an impermissible “law enforcement activity.”  See McGrain v. Daugherty, 273 U.S. 135, 179-80 (1927) (“Nor do we think it a valid objection to the investigation that it might possibly disclose crime or wrongdoing on [the Attorney General’s] part.”).[2]

This first argument, then, would be frivolous—and would call into question centuries of congressional investigations of wrongdoing by government officials—even if the only function of the House investigations in question were to ascertain whether Donald Trump has violated the law in the past.

But of course the ongoing House investigations are not solely concerned with that backwards-looking question: They are also, and much more importantly, designed to discover whether Trump is currently subject to conflicts of interest, or otherwise compromised, in ways that might affect his conduct as President and his ability or willingness to comply with his constitutional duty to act on behalf of the nation’s best interests (rather than his own) going forward.

Not surprisingly, then, Trump’s counsel do not rely exclusively upon their flawed “Congress is engaged in impermissible law enforcement” argument.  Instead, they ultimately fall back on an even more alarming, secondary argument—one that’s specific to the President, in particular.

2.  The Argument that Congress May Not Investigate the President Because Congress May Not Enact Legislation Regarding the President

The Supreme Court has occasionally stated (although it’s never been a ground of decision) that Congress’s “informing” function, and its investigative authority more broadly, must “concern[] a subject on which ‘legislation could be had.’”  Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 506 (1975) (quotingMcGrain, 273 U.S. at 177); see also Quinn v. United States, 349 U.S. 155, 161 (1955) (stating in dictum that the investigation power doesn’t extend “to an area in which Congress is forbidden to legislate”).  (Trump’s briefs occasionally suggest that the investigation in question must have a “tie” to proposed legislation, or that consideration of such legislation must be the purpose of the investigation.  The Court has never suggested that Congress’s authority is so limited, however:  The most the Court has suggested is that Congress's investigation must be “in an area” where it could legislate—concerning a subject “on which ‘legislation could be had.’”)

Trump’s lawyers eventually concede, in their briefs, that this means Congress may “inquire into and publicize corruption, maladministration or inefficiency inagencies of the Government” (Watkins)—after all, Congress can and does regulate the agencies and the officers who fill agency offices, and therefore it may investigate their possible wrongdoing and malfeasance, as well. 

The Trump team denies, however, that Congress has the same power to investigate the President.  Why?  Because, they argue, whereas Congress creates the offices filled by most other officers, the Constitution itself establishes the office of the President.  And, according to Trump’s lawyers, whereas Congress can enact laws to regulate the offices of its own creation, it may not regulate the offices the Constitution itself establishes (i.e., the offices of President, Vice President and Chief Justice of the United States).  And if there’s no regulatory power, it follows that there’s no investigatory power, either.

Yes, this would mean—and Trump’s lawyers make no bones about it—that Congress lacks any constitutional power to impose conflict-of-interest regulations with respect to the President, or even to impose any financial reporting requirements on him.  “[A] sitting President’s finances and the conduct of foreign companies, individuals, and governments [with respect to the President,]” argue Trump’s lawyers in their recent reply brief in Deutsche Bank, are “area[s] in which Congress is [constitutionally] forbidden to legislate.”  Among other things, this would mean that central provisions of the Ethics in Government Act are unconstitutional as applied to the President, even though every President has complied with them for many years.  That’s not merely an implication of Trump attorney William Consovoy’s argument—it’s an express centerpiece (see Mazars Opening Br. at 44):  “The provisions of the Ethics in Government Act that require the President to disclose his finances to Congress once he is in office are unconstitutional, so any effort to ‘strengthen[]’ or ‘enhance[]’ them is too.”  Nor, on this view, could Congress enact any laws establishing when and under what circumstances a President can or cannot receive foreign emoluments or gifts (something Congress has occasionally done).  And I suppose it would also follow a fortiori (although the briefs don’t get into this) that Congress lacks any power to regulate or limit the President’s exercise of the authorities the Constitution confers upon him, such as his power to command the military in war (shades of John Yoo’s arguments about Congress’s inability to prohibit the President from ordering torture or warrantless surveillance), or his authority to authorize covert actions.

As I hope most Balkinization readers will notice right away, there are at least three significant problems with this argument.

First, it would mean that all of the famous congressional investigations of Presidents were unconstitutional—even though virtually no one during those proceedings thought to make such an argument.  A couple of high-profile examples should suffice to illustrate the point: 

In 1973 the Senate established the Select Committee on Presidential Campaign Activities—the famous “Sam Ervin” Committee—to investigate the Watergate break-in and any subsequent cover-up of criminal activity, as well as “all other illegal, improper, or unethical conduct occurring during the presidential election of 1972, including political espionage and campaign finance practices.”  Of course, the Ervin Committee investigated President Nixon’s possible wrongdoing, in particular.  Recall Senator Howard Baker’s famous question:  “What did the President know, and when did he know it?”  (This was more than a year before any impeachment proceedings.)  As far as I know, no one at the time suggested that Congress lacked the constitutional authority to conduct that investigation.

In 1987 Congress conducted the Iran-Contra investigation, which concerned, among other things, whether President Reagan was responsible for violations of the Boland Amendment and other laws.  A group of Representatives in Congress, led by Richard Cheney and his staffer David Addington, famously issued a “Minority Report” to accompany the Iran-Contra Committee’s report, in which they raised constitutional doubts about the Boland restrictions.  If memory serves, however, even that (very) high-water example of pro-executive constitutional theory did not suggest that the congressional investigation itself was invalid.

Judge Mehta was right to be dubious that these, and other, high-profile investigations of the President were unconstitutional.  “It is simply not fathomable,” he wrote (p.24), “that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.”  Invoking both the 1973 Watergate investigation and the 1995 Special Committee investigation of the Whitewater Development Corporation, in particular, as evidence that “Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office,” Judge Mehta understandably concluded that he was “not prepared to roll back the tide of history.”

Second, if Trump were correct that Congress lacks the power to investigate a president at all, it would follow, I suppose, that there’d rarely if ever be any need to adjudicate claims of executive privilege involving congressional efforts to discover presidential communications:  If the whole subject of the President’s conduct is one that’s off limits to Congress, what difference does privilege make?  Yet in all the many cases in which the political branches of Congress have clashed about questions of executive privilege, I’m not aware that the Executive has ever argued that Congress categorically lacks authority to investigate the President.

Third, and most fundamentally, of course Congress can enact legislation to regulate the President, even though the legislature itself did not establish his constitutional office.  It can enact laws to regulate the conditions under which he may accept foreign emoluments; to require disclosure of his finances (such as under the Ethics in Government Act); and to require him to divest himself of certain assets that would create conflicts of interest with his constitutional duties.  It may even enact laws requiring the President to preserve records created during his service in office in order to, inter alia, protect “the American people’s ability to reconstruct and come to terms with their history.”  Nixon v. Administrator, 433 U.S. 425, 452-53 (1977); accord id. at 478 (noting that “Congress’ interest in and expansive authority to act in preservation of monuments and records of historical value to our national heritage are fully established”).  And, more broadly, although there are certainly some limits on how Congress may regulate the President’s exercise of his constitutional authorities, the legislature nevertheless has the power to “make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” including the Office of the President.  That’s why, for example, Congress has historically enacted numerous laws regulating the President’s constitutional authority to command the armed and naval forces, including in the prosecution of wars, and extensively regulates (and oversees) his superintendence of the Intelligence Community.

All of this constitutional boilerplate would be called into question if the Supreme Court were to accept Trump’s argument.

What Does the Department of Justice Think?

At the recent oral argument in Mazars, Judge Rao asked Trump’s lawyer, William Consovoy, a very good question:  If Consovoy were right that Congress lacks any regulatory and investigative authority concerning the President, why hasn’t the Department of Justice filed a brief in the case opposing such an unconstitutional intrusion upon presidential prerogatives?  (Consovoy responded that he didn’t know why DOJ had not participated.)

The court of appeals subsequently invited DOJ to file a brief, which is due next Thursday (August 8).  And in the Deutsche Bank case, the U.S. Court of Appeals for the Second Circuit has extended a similar invitation—DOJ’s deadline for filing in that case is August 19.

What will the Department of Justice say?  It’s too soon to tell, of course.  For the reasons I’ve described above, I certainly hope the Department rejects the extreme arguments Trump’s lawyers have tendered.  But one recent development gives some reason for concern.

In the case of the Ways & Means Committee’s request for Trump’s federal tax returns, Treasury Secretary Mnuchin asked the Office of Legal Counsel whether he was required to furnish those returns to the Committee.  OLC issued an opinionon June 13 concluding that the Secretary does not have to furnish the records.  OLC’s reasoning was that, as a constitutional matter, the Committee may request information from the Executive Branch only to further a legitimate legislative purpose, and the principal purpose articulated by the Committee in this case—namely, to assess the extent to which the IRS audits and enforces the federal tax laws against a President”—is “pretextual,” and “blinks reality” because “[n]o one could reasonably believe that the Committee seeks six years of President Trump’s tax returns because of a newly discovered interest in legislating on the presidential-audit process.”

That conclusion—as well as OLC’s antecedent view that the Departments of Treasury and Justice, unlike the courts, may assess the bona fides of a congressional committee's asserted interest—is certainly open to debate.  (In its new suit against the Treasury Secretary, the Ways & Means Committee continues to emphasize its stated purpose of assessing the IRS’s auditing of presidential returns.  This is, in my humble opinion, a mistake:  Even if oversight of the IRS is one of the reasons the Committee is seeking the information, Ways and Means should be more forthright about the much more significant and pressing reasons that Congress needs the tax returns—namely, to assess whether Trump has any possible conflicts of interest or is subject to foreign influence.  Those rationales are far more compelling, not less, than those the Committee is citing, and the scope and nature of the Committee’s request are much better explained by those rationales.)

For present purposes, however, OLC’s opinion is especially problematic because of two other things contained in it.

First, OLC suggested (pp. 18-19) that Congress’s “informing function” encompasses “merely” Congress’s power to inform itself of “facts needed to carry out legislative affairs,” and does not give Congress any authority to inform the public of information concerning its public officials.  In support of this counterintuitive notion, OLC selectively cited from an excerpt of the Court’s 1979 decision in Hutchinson v. Proxmire, 443 U.S. 111. 

Even if OLC were correct that Congress's informing function doesn't extend to informing the public of vital information about federal officials, that would only raise a question about the Ways & Means Committee's ability to disclose information from Trump's tax returns to the public--it wouldn't affect the Committee's authority to itself obtain and review those returns.  For what it's worth, however, OLC's description of the "informing" function relies upon a distorted reading of the Court’s opinion in Hutchinson.  There, the Court merely held that Speech and Debate Clause didn't immunize a single member of Congress from liability when he issued a press release defaming a scholar’s research as “nonsense.”  “[W]ide-ranging inquiries by individual Members on subjects of their choice,” explained the Court, are not part of what Wilson described as Congress's “informing function.”  But in so doing, the Court embraced Wilson’s understanding that the legitimate "informing function" of Congress is critically tied to the need to educate the People of the ways in which their elected and appointed officials are acting.  The Court quoted with approval Wilson’s explanation that “[u]nless 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; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.”  The Court even quoted approvingly Wilson’s famous line that “the only really self-governing people is that people which discusses and interrogates its administration.” Second, and even more troublingly, in its June opinion (principally in footnote 19) OLC identified many of what it considers to be the genuine reasons the House is seeking Trump’s tax returns—predominantly, reasons related to foreign influence and conflicts of interest—and thereby suggested, at least implicitly, that those reasons are not constitutionally sufficient justifications for Congress’s inquiry. It cited, for example, the following statements made by House members before the Democrats took control of the House in 2019:

• Then-Ranking Member (now Chairman) Neal’s statement that the tax returns would “help protect against violations of the Emoluments Clause of the Constitution and conflicts of interest, including with foreign adversaries such as Russia.”

• Representative Pascrell’s question about why Republican members in the majority in the previous Congress wouldn’t “use their authority in the law to provide oversight and make sure the president and his family are not hiding financial ties that could cause conflicts in the decision-making.”

• Statements of Representatives Pascrell and Eshoo that “disclosure of the President’s tax returns could help those investigating Russian influence in the 2016 election.”

• A statement by Reps. Neal and Pascrell that “[t]ax returns provide the clearest picture of a president’s financial health” and will allow the public “to gain a more complete understanding of how tax reform will benefit President Trump and his vast business empire.”

• Then-Minority Leader Pelosi’s statements that “[w]e think [the returns] will show us some connection that will be useful in the investigation of what do the Russians have on Donald Trump politically, personally, financially,” and that “there’s concerns about recent actions by the Chinese government, in relation to the Trump Organization.”

• Representative Jeffries’s statement that “[t]he release of the President’s tax returns will help the American people better understand the extent of Trump’s financial ties to Putin’s Russia.”

If these are, as OLC suggests, the actual (or at least among the primary) reasons why the House is seeking Trump’s tax information—and obviously they are—then how could OLC have concluded (p.17) that “the Committee lacked a legitimate legislative purpose” for subpoeanaing those records unless OLC shared Trump’s personal lawyers’ view that Congress is powerless to inquire into any financial arrangements that might threaten to compromise the President’s duty of undivided loyalty to the public interest?

I hope DOJ doesn’t make such a radical argument when it files its briefs in the Mazars and Deutsche Bank cases in the coming weeks.  But we shall see.

[1]  “The House lacks authority to investigate/legislate” argument is Trump’s principal assertion in both cases, but he makes other arguments, as well, such as that the House hasn’t given the Oversight Committee a sufficiently clear authorization to investigate Trump (in the Mazars case); that the Right to Financial Privacy Act limits the records Deutsche Bank and Capital One may share with the committees in that case; and that the subpoenas are overbroad in light of the committees’ asserted interests.  I don’t discuss these other arguments in this post.

[2] Trump’s lawyers identify only one case in which a court has suggested that a congressional committee overstepped its bounds by engaging in an alleged “law enforcement” function.  In United States v. Icardi, 140 F. Supp. 383 (D.D.C 1956), the defendant was charged with having committed perjury in his sworn testimony before a congressional subcommittee.  The district court dismissed the indictment, in large measure based upon the judge’s conclusion that because the subcommittee already had all the information it needed about the subject matter, it must have elicited answers from the witness under oath merely in order to spring a perjury trap. Id. at 389.  In its discussion of the case, the court also criticized one aspect of the subcommittee’s published report, which had stated that there was “probable cause” for charging Icardi and another individual with murder of a military officer and embezzlement but that they weren’t subject to prosecution under the Uniform Code of Military Justice.  “The use of this language,” wrote the court, “indicates the functioning of the subcommittee as a committing magistrate.”  Id. at 387.  The court added that the subcommittee report’s “adjudication of crime” was “invalid[].”  Id. at 388.  There’s reason to doubt whether the judge in Icardi was right to characterize the subcommittee’s judgments as an “adjudication” of crime, or as equivalent to functioning “as a committing magistrate.”  After all, the subcommittee’s conclusions—unlike those of a grand jury—did not and could not trigger a criminal trial, nor suffice to “adjudicate” Icardi’s guilt.  In any event, Icardi does not call into question the Supreme Court’s repeated recognition of Congress’s power to investigate wrongdoing by federal government officials.


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7/23/19  //  Commentary

Let's not have unrealistic expectations of Mueller dropping bombshells. But if Congress is going to hold hearings, it should ask these questions.

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A Memorandum of Misunderstanding

7/22/19  //  Commentary

Mueller didn't indict Trump because DOJ policy prohibited him from doing so. That same policy points to the need for impeachment.

Versus Trump: The Past And Future Of Gerrymandering

7/18/19  //  Commentary

This week on Versus Trump, Jason and Easha are joined by guest host Melissa Murray of NYU Law and the new Strict Scrutiny podcast. They discuss the recent Supreme Court decision on gerrymandering (Rucho v. Common Cause), what's next in the fight, and where you can find Melissa's wonderful new podcast. Listen now!

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