//  3/23/20  //  In-Depth Analysis

By Ashwin Phatak and Charlie Miller | Constitutional Accountability Center 

Introduction

This Term, the Supreme Court will hear a pair of consolidated cases concerning Congress’s oversight and investigative powers.  The first case concerns the House Committee on Oversight and Reform’s investigation into the President’s financial disclosures and conflicts of interest.  To further investigate these issues, the Committee subpoenaed the accounting firm Mazars for documents related to President Trump’s and his businesses’ finances.  Relatedly, as part of investigations into banking practices, money laundering in the financial sector, foreign influence in our political process, and counterintelligence threats posed by potential foreign financial leverage over the President, the House Committee on Financial Services and the House Intelligence Committee subpoenaed certain financial documents from Deutsche Bank and Capital One also related to President Trump’s and his businesses’ finances.  

President Trump filed suit challenging these subpoenas, arguing that Congress has no legitimate legislative purpose for seeking these records.  The cases have now made their way to the Supreme Court, which has consolidated them and should decide them this Term.

Importantly, when the Court decides these cases, it will not only decide the legality of the particular subpoenas at issue, but it will also necessarily answer broader questions about Congress’s authority to conduct oversight and, by extension, its ability to legislate effectively.  A number of amicus briefs filed in the Court explain in different ways the broader issues at stake in these cases.

The History of Congressional Oversight

First, some amicus briefs spotlight Congress’s long history of oversight and the Court’s repeated rulings in favor of broad oversight powers, and argue that a ruling prohibiting Congress from enforcing these subpoenas would result in a sea change in Congress’s powers.

For instance, our organization, the Constitutional Accountability Center, filed a brief focusing on the history of congressional investigations dating back to 1792, and the Supreme Court’s repeated affirmation that Congress’s power to investigate is coextensive with its power to legislate.  Likewise, a brief on behalf of a bipartisan group of former Members of Congress notes that Congress has sought and received similar information concerning the President and other executive officers throughout the nation’s history, and underscores that this case involves powers that allow Congress to perform its most basic duties like legislating and engaging in oversight.

In addition to the long history of congressional oversight, other briefs explain why the positions taken by President Trump’s lawyers and Judge Neomi Rao, the judge who dissented from the D.C. Circuit panel’s decision upholding the Mazars subpoena, are without merit.  For instance, a brief of congressional scholars specifically rebuts Judge Rao’s claim that subpoenas pertaining to the President are improper unless Congress has formally launched an impeachment inquiry.  The scholars point out that congressional investigations into Presidents from Washington to Clinton mirror the investigations in this case, and that these investigations were either not part of a formal impeachment inquiry, or far preceded any impeachment inquiry.

Relatedly, the Lugar Center and the Levin Center at Wayne Law brief responds directly to the President’s argument that “case study” investigations into individuals to investigate broader legislative issues are impermissible because they constitute law enforcement.  They argue that Congress has long engaged in case studies to “analyze complex issues, present facts to the public in comprehensible ways, and take corrective action.”

Finally, the Niskanen Center’s brief focuses directly on the Whitewater investigation into President Clinton, and explains the similarities between the subpoenas issued there and here.  All told, these briefs paint a picture of an extensive history of congressional investigations focused on the President, and make clear that a holding that these subpoenas are unlawful would contradict centuries of historical practice.

The Importance of the Materials Congress Is Seeking

Second, a number of amicus briefs filed by national security, ethics, and financial experts highlight the importance of the specific investigations being conducted by the Committees and why legislation on these topics is critical to safeguard the interests of the American people.

For instance, a brief of former national security officials discusses the subpoenas that pertain to important national security issues like money laundering and foreign influence.  They argue that Congress has an important role in legislating in these areas and that any “blind spot” created in an attempt to protect the President would significantly hamstring those efforts.  Similarly, a brief of experts in international finance argues that those subpoenas are consistent with Congress’s power to regulate commerce and protect the United States from criminal activity and corruption through foreign influences.  Specifically, these experts explained that these subpoenas could provide valuable information on money laundering and the use of shell companies in the luxury real estate market.

Former ethics officials argue in their brief that the President’s refusal to divest or disclose fully his financial interests represents a significant departure from modern presidential practice and raises concerns that this Administration is not conflict-free.  This digression from modern precedent raises valid legislative questions about what Congress can do to more effectively regulate presidential financial disclosures.  Similarly, the Center for Media and Democracy and Citizens for Responsibility and Ethics in Washington brief notes that Congress is empowered to enact legislation in furtherance of government transparency, and emphasizes that transparency and oversight are essential to a well-functioning democracy.

To be sure, the President and his attorneys have argued that any legislation aimed at conflicts of interest or financial disclosure would be unconstitutional as applied to the President.  But Public Citizen’s brief explains why that’s wrong, based on, among other things, Congress’s authority to “manage federal property, direct federal spending, and regulate interstate commerce.”  Furthermore, the brief explains that the President is an actor charged with faithfully carrying out authorities delegated by the Congress, and the public has a vested interest in ensuring those duties are carried out without conflicts of interest.

In short, Congress is focused on monumentally important issues like money laundering, election security, and conflicts of interest, and the subpoenas in these cases are critical to its ability to legislate effectively in these areas.

The Stakes for Separation of Powers and Why Congress Must be Allowed to Investigate

Third, several briefs explain that if the courts limit Congress’s power to carry out investigations, including investigations of the President, that decision would destabilize the balance of powers so carefully designed by the Framers.

Separation-of-powers law professors, for example, argue that congressional oversight provides the public with valuable information about executive officers, informs Congress about executive abuses, and acts as a powerful deterrent against corruption.  None of these purposes make Congress’s investigations “law enforcement,” as the President has argued. Furthermore, these subpoenas do not undermine the separation of powers because the information they seek is non-official, non-privileged, and does not take the President away from his official duties as President.

In fact, a brief by former senior Department of Justice (DOJ) officials argues that a decision preventing these subpoenas would actually undermine the separation of powers. Relying on their experience as leaders in the executive branch, they argue that the President’s attempts to nullify subpoena requests would set a new and heightened standard never before applied to congressional subpoenas, thus disrupting our system of checks and balances.  Likewise, the ACLU’s brief argues that courts should reject the President’s sweeping claim of immunity from congressional subpoenas in order to uphold the separation of powers in our constitutional system.

Finally, from a practical perspective, a bipartisan group of former General Counsels of the House of Representatives and some former Committee staff members argues that if the courts reward the delay tactics currently being used to defy congressional subpoenas, this Administration will provide a roadmap for any future administration to simply delay complying with legitimate subpoenas in an effort to avoid them altogether.  After all, because congressional subpoenas expire at the end of a congressional session, the delay in obtaining these records threatens to prevent the 116th Congress from adequately investigating these issues before the session ends later this year.

Conclusion

As laid out by a diverse array of amicus briefs, the Court’s consideration of these oversight cases should take into account the long history of congressional investigations of the executive branch, the specific legislative importance of the investigations in question, and the stakes for the balance of powers in our government.  All of these issues will be at stake when the Court issues a decision in these cases.


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