Trump v. Committee on Oversight and Reform of the U.S. House of Representatives
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) DONALD J. TRUMP, et al. ) ) Plaintiffs, ) ) v. ) Case No. 19-cv-01136 (APM) ) COMMITTEE ON OVERSIGHT AND ) REFORM OF THE U.S. HOUSE OF ) REPRESENTATIVES, et al. ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
I do, therefore, . . . solemnly protest against these proceedings of the House of Representatives, because they are in violation of the rights of the coordinate executive branch of the Government, and subversive of its constitutional independence; because they are calculated to foster a band of interested parasites and informers, ever ready, for their own advantage, to swear before ex parte committees to pretended private conversations between the President and themselves, incapable, from their nature, of being disproved; thus furnishing material for harassing him, degrading him in the eyes of the country . . .
- President James Buchanan 1
These words, written by President James Buchanan in March 1860, protested a resolution
adopted by the U.S. House of Representatives to form a committee—known as the Covode
Committee—to investigate whether the President or any other officer of the Executive Branch had
sought to influence the actions of Congress by improper means. See Buchanan at 218–21.
1 JAMES BUCHANAN, THE WORKS OF JAMES BUCHANAN VOLUME XII 225–26 (John Bassett Moore ed., J.B. Lippincott Company) (1911) [hereinafter Buchanan]. Buchanan “cheerfully admitted” that the House of Representatives had the authority to make
inquiries “incident to their legislative duties,” as “necessary to enable them to discover and to
provide the appropriate legislative remedies for any abuses which may be ascertained.” Id. at 221.
But he objected to the Covode Committee’s investigation of his conduct. He maintained that the
House of Representatives possessed no general powers to investigate him, except when sitting as
an impeaching body. Id. Buchanan feared that, if the House were to exercise such authority, it
“would establish a precedent dangerous and embarrassing to all my successors, to whatever
political party they might be attached.” Id. at 226.
Some 160 years later, President Donald J. Trump has taken up the fight of his
predecessor. On April 15, 2019, the Committee on Oversight and Reform of the House of
Representatives issued a subpoena for records to Mazars USA LLP, a firm that has provided
accounting services to President Trump. The subpoena called for Mazars to produce financial
records and other documents relating to President Trump personally as well as various associated
businesses and entities dating back to 2011—years before he declared his candidacy for office.
The decision to issue the subpoena came about after the President’s former lawyer and confidant,
Michael Cohen, testified before the House Oversight Committee that the President routinely would
alter the estimated value of his assets and liabilities on financial statements, depending on the
purpose for which a statement was needed. For instance, Cohen said that the President provided
inflated financial statements to a bank to obtain a loan to purchase a National Football League
franchise. But when it came time to calculate his real estate taxes, the President would deflate the
value of certain assets. To support his accusations, Cohen produced financial statements from
2011, 2012, and 2013, at least two of which were prepared by Mazars.
2 Echoing the protests of President Buchanan, President Trump and his associated entities
are before this court, claiming that the Oversight Committee’s subpoena to Mazars exceeds the
Committee’s constitutional power to conduct investigations. The President argues that there is no
legislative purpose for the subpoena. The Oversight Committee’s true motive, the President
insists, is to collect personal information about him solely for political advantage. He asks the
court to declare the Mazars subpoena invalid and unenforceable.
Courts have grappled for more than a century with the question of the scope of Congress’s
investigative power. The binding principle that emerges from these judicial decisions is that courts
must presume Congress is acting in furtherance of its constitutional responsibility to legislate and
must defer to congressional judgments about what Congress needs to carry out that purpose. To be
sure, there are limits on Congress’s investigative authority. But those limits do not substantially
constrain Congress. So long as Congress investigates on a subject matter on which “legislation
could be had,” Congress acts as contemplated by Article I of the Constitution.
Applying those principles here compels the conclusion that President Trump cannot block
the subpoena to Mazars. According to the Oversight Committee, it believes that the requested
records will aid its consideration of strengthening ethics and disclosure laws, as well as amending
the penalties for violating such laws. The Committee also says that the records will assist in
monitoring the President’s compliance with the Foreign Emoluments Clause. These are facially
valid legislative purposes, and it is not for the court to question whether the Committee’s actions
are truly motivated by political considerations. Accordingly, the court will enter judgment in favor
of the Oversight Committee.
3 II. BACKGROUND
A. The 116th Congress and the House Oversight Committee
On January 3, 2019, the 116th Congress began with the Democratic Party controlling a
majority of seats in the U.S. House of Representatives. One of the House’s first actions was to
adopt the “Rules of the House of Representatives,” which govern proceedings during the two-year
term. This vote took place on January 9, 2019. 2 Rule X of the adopted House Rules, titled
“Organization of Committees,” establishes various standing committees and their respective
jurisdictions. 3 Among the standing committees with the broadest purview is the Committee on
Oversight and Reform (“Oversight Committee”). Its subject areas of primary jurisdiction range
from the lofty—“[o]verall economy, efficiency, and management of government operations”—to
the mundane—“[f]ederal paperwork reduction.” House Rules at 8. If there is a common thread
running through the subjects within the Oversight Committee’s jurisdiction, it is the oversight of
the operations and administration of the Executive Branch.
Each of the House’s standing committees possess “[g]eneral oversight responsibilities.”
Id. at 9. Those responsibilities are meant to assist the House in (1) “its analysis, appraisal, and
evaluation of” “the application, administration, execution, and effectiveness of Federal laws” and
(2) “conditions and circumstances that may indicate the necessity or desirability of enacting new
or additional legislation,” and (3) “its formulation, consideration, and enactment of changes in
Federal laws, and of such additional legislation as may be necessary or appropriate.” Id. Some of
the House’s standing committees have “[s]pecial oversight functions.” Id. at 10. The Oversight
2 Final Vote Results for Roll Call 19, Adopting the Rules of the House of Representatives for the One Hundredth Sixteenth Congress, http://clerk.house.gov/evs/2019/roll019.xml (last visited May 20, 2019). 3 Rules of the House of Representatives, 116th Congress at 6 (Jan.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) DONALD J. TRUMP, et al. ) ) Plaintiffs, ) ) v. ) Case No. 19-cv-01136 (APM) ) COMMITTEE ON OVERSIGHT AND ) REFORM OF THE U.S. HOUSE OF ) REPRESENTATIVES, et al. ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
I do, therefore, . . . solemnly protest against these proceedings of the House of Representatives, because they are in violation of the rights of the coordinate executive branch of the Government, and subversive of its constitutional independence; because they are calculated to foster a band of interested parasites and informers, ever ready, for their own advantage, to swear before ex parte committees to pretended private conversations between the President and themselves, incapable, from their nature, of being disproved; thus furnishing material for harassing him, degrading him in the eyes of the country . . .
- President James Buchanan 1
These words, written by President James Buchanan in March 1860, protested a resolution
adopted by the U.S. House of Representatives to form a committee—known as the Covode
Committee—to investigate whether the President or any other officer of the Executive Branch had
sought to influence the actions of Congress by improper means. See Buchanan at 218–21.
1 JAMES BUCHANAN, THE WORKS OF JAMES BUCHANAN VOLUME XII 225–26 (John Bassett Moore ed., J.B. Lippincott Company) (1911) [hereinafter Buchanan]. Buchanan “cheerfully admitted” that the House of Representatives had the authority to make
inquiries “incident to their legislative duties,” as “necessary to enable them to discover and to
provide the appropriate legislative remedies for any abuses which may be ascertained.” Id. at 221.
But he objected to the Covode Committee’s investigation of his conduct. He maintained that the
House of Representatives possessed no general powers to investigate him, except when sitting as
an impeaching body. Id. Buchanan feared that, if the House were to exercise such authority, it
“would establish a precedent dangerous and embarrassing to all my successors, to whatever
political party they might be attached.” Id. at 226.
Some 160 years later, President Donald J. Trump has taken up the fight of his
predecessor. On April 15, 2019, the Committee on Oversight and Reform of the House of
Representatives issued a subpoena for records to Mazars USA LLP, a firm that has provided
accounting services to President Trump. The subpoena called for Mazars to produce financial
records and other documents relating to President Trump personally as well as various associated
businesses and entities dating back to 2011—years before he declared his candidacy for office.
The decision to issue the subpoena came about after the President’s former lawyer and confidant,
Michael Cohen, testified before the House Oversight Committee that the President routinely would
alter the estimated value of his assets and liabilities on financial statements, depending on the
purpose for which a statement was needed. For instance, Cohen said that the President provided
inflated financial statements to a bank to obtain a loan to purchase a National Football League
franchise. But when it came time to calculate his real estate taxes, the President would deflate the
value of certain assets. To support his accusations, Cohen produced financial statements from
2011, 2012, and 2013, at least two of which were prepared by Mazars.
2 Echoing the protests of President Buchanan, President Trump and his associated entities
are before this court, claiming that the Oversight Committee’s subpoena to Mazars exceeds the
Committee’s constitutional power to conduct investigations. The President argues that there is no
legislative purpose for the subpoena. The Oversight Committee’s true motive, the President
insists, is to collect personal information about him solely for political advantage. He asks the
court to declare the Mazars subpoena invalid and unenforceable.
Courts have grappled for more than a century with the question of the scope of Congress’s
investigative power. The binding principle that emerges from these judicial decisions is that courts
must presume Congress is acting in furtherance of its constitutional responsibility to legislate and
must defer to congressional judgments about what Congress needs to carry out that purpose. To be
sure, there are limits on Congress’s investigative authority. But those limits do not substantially
constrain Congress. So long as Congress investigates on a subject matter on which “legislation
could be had,” Congress acts as contemplated by Article I of the Constitution.
Applying those principles here compels the conclusion that President Trump cannot block
the subpoena to Mazars. According to the Oversight Committee, it believes that the requested
records will aid its consideration of strengthening ethics and disclosure laws, as well as amending
the penalties for violating such laws. The Committee also says that the records will assist in
monitoring the President’s compliance with the Foreign Emoluments Clause. These are facially
valid legislative purposes, and it is not for the court to question whether the Committee’s actions
are truly motivated by political considerations. Accordingly, the court will enter judgment in favor
of the Oversight Committee.
3 II. BACKGROUND
A. The 116th Congress and the House Oversight Committee
On January 3, 2019, the 116th Congress began with the Democratic Party controlling a
majority of seats in the U.S. House of Representatives. One of the House’s first actions was to
adopt the “Rules of the House of Representatives,” which govern proceedings during the two-year
term. This vote took place on January 9, 2019. 2 Rule X of the adopted House Rules, titled
“Organization of Committees,” establishes various standing committees and their respective
jurisdictions. 3 Among the standing committees with the broadest purview is the Committee on
Oversight and Reform (“Oversight Committee”). Its subject areas of primary jurisdiction range
from the lofty—“[o]verall economy, efficiency, and management of government operations”—to
the mundane—“[f]ederal paperwork reduction.” House Rules at 8. If there is a common thread
running through the subjects within the Oversight Committee’s jurisdiction, it is the oversight of
the operations and administration of the Executive Branch.
Each of the House’s standing committees possess “[g]eneral oversight responsibilities.”
Id. at 9. Those responsibilities are meant to assist the House in (1) “its analysis, appraisal, and
evaluation of” “the application, administration, execution, and effectiveness of Federal laws” and
(2) “conditions and circumstances that may indicate the necessity or desirability of enacting new
or additional legislation,” and (3) “its formulation, consideration, and enactment of changes in
Federal laws, and of such additional legislation as may be necessary or appropriate.” Id. Some of
the House’s standing committees have “[s]pecial oversight functions.” Id. at 10. The Oversight
2 Final Vote Results for Roll Call 19, Adopting the Rules of the House of Representatives for the One Hundredth Sixteenth Congress, http://clerk.house.gov/evs/2019/roll019.xml (last visited May 20, 2019). 3 Rules of the House of Representatives, 116th Congress at 6 (Jan. 11, 2019), https://rules.house.gov/sites/democrats.rules.house.gov/files/116-1/116-House-Rules-Clerk.pdf (last visited May 20, 2019) [hereinafter House Rules].
4 Committee is one of them. Its “special oversight function” is described as involving the “review
and study on a continuing basis the operation of Government activities at all levels, including the
Executive Office of the President.” Id. The Executive Office of the President consists of a small
group of federal agencies that most immediately aid the President on matters of policy, politics,
administration, and management. The President’s closest advisors typically are situated in the
Executive Office. 4
Rule X also vests the Oversight Committee with special authority to conduct investigations.
According to the Rule, “the Committee on Oversight and Reform may at any time conduct
investigations of any matter without regard to [other rules] conferring jurisdiction over the matter
to another standing committee.” House Rules at 11 (emphasis added). In other words, the
Oversight Committee is empowered to investigate as to any subject matter, even in those areas that
are expressly assigned to other committees. No other committee possesses such sweeping
investigative authority.
The Oversight Committee’s broad investigative power is not new. In each of the four
preceding Congresses—all controlled by the Republican Party, including during the final six years
of the Obama Administration—the House Oversight Committee enjoyed the same power “at any
time [to] conduct investigations of any matter.” 5
4 See generally Congressional Research Service, “The Executive Office of the President: An Historical Overview,” Nov. 26, 2008, https://fas.org/sgp/crs/misc/98-606.pdf (last visited May 20, 2019). 5 Rules of the House of Representatives, 115th Congress at 505 (2017), https://www.govinfo.gov/content/pkg/HMAN- 115/pdf/HMAN-115.pdf, (last visited May 20, 2019); Rules of the House of Representatives, 114th Congress at 497 (2015), https://www.govinfo.gov/content/pkg/HMAN-114/pdf/HMAN-114.pdf (last visited May 20, 2019); Rules of the House of Representatives, 113th Congress at 496 (2013), https://www.govinfo.gov/content/pkg/HMAN- 113/pdf/HMAN-113-houserules.pdf (last visited May 20, 2019); Rules of the House of Representatives, 112th Congress at 492 (2011), https://www.govinfo.gov/content/pkg/HMAN-112/pdf/HMAN-112.pdf (last visited May 20, 2019).
5 B. The Oversight Committee’s Investigation
From the start of the 116th Congress, the Oversight Committee, now led by a Democrat,
moved aggressively to use its investigative powers. It did not adopt a resolution or issue a public
statement defining the scope of what it intended to investigate. Instead, it sent a series of letters
to the White House and elsewhere seeking various records regarding the President’s personal
finances, as well as records concerning his businesses and related entities. For instance, days
before the new Congress started, the incoming Chairman of the Oversight Committee,
Representative Elijah Cummings, wrote the President’s personal lawyer, Sheri Dillon, and the
Executive Vice President and Chief Compliance Counsel of the Trump Organization, George
Sorial, asking them to produce previously requested “documents regarding the Trump
Organization’s process for identifying payments from foreign governments and foreign-
government controlled entities . . .”6 In a different letter, the Chairman asked the General Services
Administration (“GSA”), the agency that manages federally owned and leased buildings, to
produce records concerning the federal government’s lease with the Trump Organization for the
Old Post Office Building, which houses the Trump International Hotel in Washington, D.C. 7
Chairman Cummings indicated that he sought these records for multiple reasons, including the
concern that the lease might violate the Constitution’s Emoluments Clauses. Cummings’ April
6 Letter from the Honorable Elijah E. Cummings, Ranking Member, House Comm. on Oversight & Reform, to Sheri A. Dillon, Counsel to Donald Trump, and George A. Sorial, Exec. Vice President and Chief Compliance Counsel, Trump Org. (Dec. 19, 2018), https://tinyurl.com/Dec19CummingsDillonLetter (last visited May 20, 2019). 7 Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, et al., to Emily Murphy, Administrator, Gen. Servs. Admin. (Apr. 12, 2019), https://tinyurl.com/Apr12CummingsHorneLetter (last visited May 20, 2019) [hereinafter Cummings’ April 12th GSA Letter].
6 12th GSA Letter at 1. 8 These are but two examples of the types of records requests made by the
Oversight Committee at the start of the 116th Congress.
The investigative demand that sparked this lawsuit was issued on January 8, 2019. On that
day, Chairman Cummings wrote to Pat Cipollone, the White House Counsel, asking the President
to produce “documents related to President Trump’s reporting of debts and payments to his
personal attorney, Michael Cohen, to silence women alleging extramarital affairs with the
President before the election.” 9 The prior year, in May 2018, the Office of Government Ethics
had concluded that the President should have disclosed a payment made by Cohen as a liability on
the President’s public financial disclosure report. 10 Chairman Cummings noted in the January 8th
letter that the Oversight Committee “has jurisdiction over a wide range of matters, including the
Ethics in Government Act of 1978,” a law that requires “all federal officials, including the
President, to publicly disclose financial liabilities that could impact their decision-making.”
Cummings’ January 8th Letter at 1. On February 1, 2019, the White House Counsel responded to
8 This request for documents was not new. During the early months of the Trump Administration, Representative Cummings, who was then the Ranking Member on the Oversight Committee, along with other Democratic members, asked GSA to produce records regarding the Old Post Office lease. See Cummings v. Murphy, 321 F. Supp. 3d 92, 97–99 (D.D.C. 2018). When GSA did not cooperate, the Members brought a lawsuit to force it to disclose the records. See generally id. This judge handled that very matter and ruled that the Democratic members lacked standing to bring the case. See id. at 101–17. That decision is pending before the D.C. Circuit. 9 Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Pat Cipollone, White House Counsel (Jan. 8, 2019), https://tinyurl.com/Jan8CummingsCipolloneLetter (last visited May 20, 2019) [hereinafter Cummings’ January 8th Letter]. Then-Ranking Member Cummings made a request for similar records in September 2018, which went unanswered. See Letter from the Honorable Elijah E. Cummings, Ranking Member, House Comm. on Oversight & Reform, to Donald F. McGahn II, White House Counsel, and George A. Sorial, Exec. Vice President and Chief Compliance Counsel, Trump Org. (September 12, 2018), https://oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/2018-09- 12.EEC%20to%20McGahn-WH%20Sorial- TrumpOrg%20re%20Financial%20Disclosures%20Cohen%20Payments.pdf (last visited May 20, 2019). 10 Letter from David J. Apol, Acting Dir., Office of Gov’t Ethics, to Rod J. Rosenstein, Deputy Att’y Gen., Dep’t of Justice (May 16, 2018), https://oge.gov/web/OGE.nsf/0/D323FD5ABB1FD2358525828F005F4888/$FILE/OGE%20Letter%20to%20DOJ% 20(posting).pdf (last visited May 20, 2019).
7 Chairman Cummings that the President was prepared to consider making some documents
available for review. 11
Chairman Cummings wrote the White House Counsel again on February 15, 2019. See
Cummings’ February 15th Letter. He opened by stating that, by his January 8th letter, “the
Committee launched an investigation into the failure of President Donald Trump to report
hundreds of thousands of dollars in payments and liabilities to his former attorney, Michael Cohen,
to silence women alleging extramarital affairs during the 2016 presidential campaign.” Id. at 1.
Chairman Cummings explained that “[t]he Committee’s interest in obtaining these documents is
even more critical in light of new documents obtained by the Committee from the Office of
Government Ethics (OGE) that describe false information provided by lawyers representing
President Trump . . . ” Id. The letter went on to detail a timeline of recent events starting with
statements made by the President’s lawyers to the Office of Government Ethics and to the public
about a supposed purpose of the Cohen payments unrelated to the election; followed by the
President’s disclosure of the Cohen payments on his 2017 Financial Disclosure form as a liability
of less than $250,000; and then revelations by federal prosecutors that the Cohen payments in fact
exceeded the $250,000 reported by the President. Id. at 2–6. In the end, Chairman Cummings
cited Congress’s “plenary authority to legislate and conduct oversight regarding compliance with
ethics laws and regulations” as the source of its authority to make the records demand, as well as
its “broad authority to legislate and conduct oversight on issues involving campaign finance.” Id.
at 7.
Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Pat Cipollone, 11
White House Counsel at 1 (Feb. 15, 2019), https://tinyurl.com/Feb15CummingsCipolloneLetter [hereinafter Cummings’ February 15th Letter].
8 C. Subpoena to Mazars USA LLP
On February 27, 2019, Michael Cohen appeared for a public hearing before the House
Oversight Committee. 12 By this time, Cohen had pleaded guilty to a host of federal felony charges,
including tax evasion, campaign finance violations, and making false statements to Congress. 13
During his testimony, Cohen alleged that financial statements prepared by the President’s
accountants falsely represented the President’s assets and liabilities. See Cohen Testimony at 13,
19. Specifically, Cohen stated that, in his experience, “Mr. Trump inflated his total assets when it
served his purposes . . . and deflated his assets to reduce his real estate taxes.” Id. Cohen supplied
the Oversight Committee with portions of the President’s Statements of Financial Condition from
2011, 2012, and 2013, some of which were signed by Mazars. 14
Following Cohen’s testimony, Chairman Cummings wrote to Mazars on March 20, 2019.
The letter first summarized aspects of Cohen’s testimony accusing the President of manipulating
financial statements to suit his purposes; it then identified a half-dozen questions about assets and
liabilities reflected in the President’s Statements of Financial Condition that Cohen had provided
to the Oversight Committee. See Cummings’ March 20th Letter at 1–3. Chairman Cummings
stated that these financial statements “raise questions about the President’s representations of his
financial affairs on these forms and on other disclosures, particularly relating to the President’s
debts.” Id. at 1. The letter concluded by asking Mazars to produce four categories of documents
12 Hearing with Michael Cohen, Former Attorney to President Donald Trump: Hearing Before the H. Comm. on Oversight & Reform, 116th Cong. (2019), https://tinyurl.com/CohenHearing (last visited May 20, 2019) [hereinafter Cohen Testimony]. 13 See Mark Mazzetti, et al., Cohen Pleads Guilty and Details Trump’s Involvement in Moscow Tower Project, N.Y. TIMES, Nov. 29, 2018, https://www.nytimes.com/2018/11/29/nyregion/michael-cohen-trump-russia-mueller.html (last visited May 20, 2019). 14 See Letter from the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Victor Wahba, Chairman and Chief Exec. Officer, Mazars USA LLP (Mar. 20, 2019), https://tinyurl.com/Mar20CummingsLetter (last visited May 20, 2019) [hereinafter Cummings’ March 20th Letter]; see also Cohen Testimony at 13.
9 with respect to not just the President, but also several affiliated organizations and entities,
including the Trump Organization Inc., the Donald J. Trump Revocable Trust, the Trump
Foundation, and the Trump Old Post Office LLC. See id. at 4. The records requested included
statements of financial condition, audited financial statements, documents relied upon to prepare
any financial statements, engagement agreements, and communications between Mazars and the
President or employees of the Trump Organization. See id. The relevant time period identified
for the requested records was “January 1, 2009, to the present.” Id. In his initial letter to Mazars,
Chairman Cummings did not articulate any legislative purpose for the records requested.
A week later, on March 27, 2019, Mazars responded that it “cannot voluntarily turn over
documents sought in the Request.” 15 Mazars cited various federal and state regulations and
professional codes of conduct that prevented it from doing so. See Mazars March 27th Letter at 1.
On April 12, 2019, Chairman Cummings distributed a memorandum to Members of the
Oversight Committee (“Memorandum”), advising them of his intent to issue a subpoena to
Mazars. 16 Under a section titled “Need for Subpoena,” Chairman Cummings cited to Cohen’s
testimony that the President had “altered the estimated value of his assets and liabilities on
financial statements,” as well as to the records Cohen had provided to support these claims.
Cummings’ April 12th Mem. at 1–2. He also referenced “[r]ecent news reports” raising “additional
concerns regarding the President’s financial statements and representations.” Id. at 1. In the
“Conclusion” section of the Memorandum, Chairman Cummings listed the purposes for seeking
the Mazars-held records:
15 Letter from Jerry D. Bernstein, BlankRome LLP, Outside Counsel to Mazars USA LLP, to the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform (Mar. 27, 2019), https://tinyurl.com/Mar27MazarsLetter (last visited May 20, 2019) [hereinafter Mazars March 27th Letter]. 16 Memorandum from Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Members of the Committee on Oversight and Reform (April 12, 2019), https://www.politico.com/f/?id=0000016a-131f-da8e- adfa-3b5f319d0001 (last visited May 20, 2019) [hereinafter Cummings’ April 12th Mem.].
10 The Committee has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities. The Committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction, and to suggest otherwise is both inaccurate and contrary to the core mission of the Committee to serve as an independent check on the Executive Branch.
Id. at 4. Chairman Cummings allowed 48 hours for Members to offer their views on issuing the
subpoena. See id. The Committee’s new Ranking Member, Congressman Jim Jordan, responded,
declaring the action “an unprecedented abuse of the Committee’s subpoena authority to target and
expose the private financial information of the President of the United States.” 17
Notwithstanding the Ranking Member’s objection, on April 15, 2019, the Oversight
Committee issued the subpoena to Mazars that is the subject of this lawsuit. The subpoena sought
the same four categories of records identified in the March 20th letter relating to the President and
his affiliated organizations and entities. See Subpoena, ECF No. 9-2, Ex. A, at 3 [hereinafter
Subpoena]; see also Cummings’ March 20th Letter at 4. The subpoena, however, differed in one
respect—it narrowed the relevant time period by two years to “calendar years 2011 through
2018.” 18 Subpoena at 3.
17 Letter from the Honorable Jim Jordan, Ranking Member, House Comm. on Oversight & Reform, to the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform at 1 (April 15, 2019), https://republicans- oversight.house.gov/wp-content/uploads/2019/04/2019-04-15-JDJ-to-EEC-re-Mazars-Subpoena.pdf (last visited May 20, 2019). 18 At oral argument, Plaintiffs stated that paragraph 2 of the subpoena applies “without regard to time.” Hr’g Tr. at 69. That paragraph, however, is for all engagement agreements or contracts related to items “described in Item Number 1,” which is time-limited from 2011 to 2018. See Subpoena at 3.
11 D. Procedural History
1. Plaintiffs Seek Injunctive Relief
On April 22, 2019, President Trump, along with his affiliated organizations and entities
(collectively “Plaintiffs”), 19 filed this lawsuit. See Compl., ECF No. 1 [hereinafter Compl.]. They
originally named as defendants Chairman Cummings; Peter Kenny, the Chief Investigative
Counsel of the Oversight Committee; and Mazars. Plaintiffs asked the court, among other things,
to declare that the Oversight Committee’s subpoena to Mazars “is invalid and unenforceable” and
to issue a “permanent injunction quashing Chairman Cummings’ subpoena.” Compl. at 13. With
their Complaint, Plaintiffs filed an Application for a Temporary Restraining Order and Motion for
Preliminary Injunction. See Pls.’ App. for a TRO, ECF No. 9; Pls.’ Mot. for Prelim. Inj., ECF No.
11; Stmt. of P&A in Support of Pls.’ App. for a TRO and Mot. for Prelim. Inj., ECF Nos. 9-1, 11-
1 [hereinafter Pls.’ Stmt.]. The Application asked the court to enter an order “prohibiting
Defendants from enforcing or complying with Chairman Cummings’ subpoena so that the Court
can decide Plaintiffs’ motion for a preliminary injunction.” Pls.’ Stmt. at 14.
Following discussions with the Oversight Committee, Plaintiffs consented to the
Committee’s intervention as a defendant in this matter and agreed to dismiss Chairman Cummings
and Kenny as defendants. See Consent Mot. of the Oversight Committee to Intervene, ECF No.
12; Joint Stip., ECF No. 15. The parties settled on a briefing schedule on Plaintiffs’ motion for
preliminary injunction, which the court entered. Minute Order, Apr. 23, 2019. The Oversight
Committee also agreed to postpone the date for Mazars to produce records until seven days after
19 The complete list of affiliated organizations and entities includes: The Trump Organization, Inc.; Trump Organization LLC; The Trump Corporation; DJT Holdings LLC; The Donald J. Trump Revocable Trust; and the Trump Old Post Office LLC.
12 the court ruled on Plaintiffs’ motion. See id. That agreement made it unnecessary for the court to
enter a temporary restraining order.
2. Consolidation under Rule 65(a)(2)
Under the entered schedule, the parties were to appear before the court for oral argument
on May 14, 2019. Five days before the hearing and one day after the parties had completed
briefing, the court entered an order announcing its intention to consolidate the hearing on the
preliminary injunction with the “trial on the merits,” as is permitted under Federal Rule of Civil
Procedure 65(a)(2). See Order, ECF No. 25 [hereinafter Order]. The court explained the reason
for consolidation as follows:
The sole question before the court—Is the House Oversight Committee’s issuance of a subpoena to Mazars USA LLP for financial records of President Donald J. Trump and various associated entities a valid exercise of legislative power?—is fully briefed, and the court can discern no benefit from an additional round of legal arguments. Nor is there an obvious need to delay ruling on the merits to allow for development of the factual record.
Id. The court made the decision to consolidate conscious of the need to expedite these types of
cases. In Eastland v. U.S. Servicemen’s Fund, the Supreme Court stated that motions to enjoin a
congressional subpoena “be given the most expeditious treatment by district courts because one
branch of Government is being asked to halt the functions of a coordinate branch.” 421 U.S. 491,
511 n.17 (1975); see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing
Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the
investigatory functions of Congress”). The court also was cognizant of the fact that the
Constitution’s Speech or Debate Clause forecloses Plaintiffs from compelling discovery from the
Oversight Committee, its Members, or staff. See Eastland, 421 U.S. at 503 (stating that “a private
civil action, whether for an injunction or damages, creates a distraction and forces Members to
13 divert their time, energy, and attention from their legislative tasks to defend the litigation”); see
also Gravel v. United States, 408 U.S. 606, 616–22 (1972). Relatedly, the D.C. Circuit has
recognized that evidence relevant to determining whether Congress has acted in its legislative
capacity is likely to come largely, if not exclusively, from public sources. See Shelton v. United
States, 404 F.2d 1292, 1297 (D.C. Cir. 1968) (observing that relevant sources of evidence include
“the resolution of the Congress authorizing the inquiry,” “the opening statement of the Chairman
at the hearings,” and “statements of the members of the committee . . . or of the Staff Director”)
(citations omitted). The court ordered the parties to submit any additional evidence to the court or
lodge an objection to consolidation by May 13, 2019. Order at 2.
Plaintiffs protested the court’s consolidation order, but the Oversight Committee did not.
See Pls.’ Objections to Rule 65(a)(2) Consolidation, ECF No. 29 [hereinafter Pls.’ Objections];
see also Oversight Committee’s Resp. to the Court’s May 9, 2019 Order, ECF No. 31. Plaintiffs
asserted that, in briefing only a motion for preliminary injunction, they were constrained in their
arguments on the merits. See Pls.’ Objections at 4 (“Nor have the parties had the opportunity to
fully brief the important constitutional questions that this case presents.”). They also maintained
that they needed more time to obtain additional evidence, specifically (1) a memorandum of
understanding negotiated between Chairman Cummings and a Chair of a different House
Committee, which they believed the Ranking Member of the Oversight Committee would
voluntarily disclose to them, and (2) communications between Mazars and the Oversight
Committee. Id. at 6–7. Plaintiffs did not assert that they could obtain discovery from the Oversight
Committee. See generally id.
At the May 14th hearing, the court heard further argument from Plaintiffs on consolidation,
and overruled their objection. The court found that no additional briefing would aid in its decision-
14 making, as the parties had comprehensively presented the issues and cited all applicable precedent.
See Hr’g Tr. at 34. Indeed, Plaintiffs could identify no new argument that they would make if
given the chance to do so. Id. at 34–36. To allow for Plaintiffs’ asserted need to gather additional
evidence, the court left the record open until May 18, 2019. Id. at 75. Plaintiffs already had
submitted some additional evidence after the consolidation order, which consisted of news reports
of public statements of various Members of Congress. See Supp. Decl. of William S. Consovoy,
ECF No. 30 [hereinafter First Supp. Decl.]. Plaintiffs added two more letters from the Ranking
Member before the record closed. See Second Supp. Decl. of William S. Consovoy, ECF No.
34. 20
E. Cross-Motions for Summary Judgment
The legal issues presented do not require the court to resolve any fact contests because the
material facts are not in dispute. 21 Accordingly, having ordered consolidation under Rule 65(a)(2),
the court treats the parties’ briefing as cross-motions for summary judgment. See Mar. for Life v.
Burwell, 128 F. Supp. 3d 116, 124 (D.D.C. 2015) (reviewing case consolidated under Rule 65(a)(2)
as cross-motions for summary judgment); Indep. Bankers Ass’n of Am. v. Conover, 603 F. Supp.
948, 953 (D.D.C. 1985) (same).
20 Plaintiffs did not offer any evidence from Mazars; nor did they submit the memorandum of understanding that they claimed in their Opposition was critical evidence. The Oversight Committee, however, did submit that memorandum of understanding to the court in camera. The court has considered the contents of the agreement in rendering its judgment. 21 Although the Oversight Committee’s “motive” for issuing the subpoena to Mazars is a disputed fact, as discussed further below, it is not a “material” fact that would prevent deciding the case on cross-motions for summary judgment. See Watkins v. United States, 354 U.S. 178, 200 (1957). In addition, the Committee admitted “there is no legitimate dispute about the facts here. We’re not saying that Congressman Cummings didn’t say the things that he’s quoted as saying . . .” Hr’g Tr. at 61–62.
15 III. LEGAL PRINCIPLES
A. Congress’s Broad Investigative Authority
Article I of the Constitution grants Congress all “legislative Powers.” U.S. Const. art. I,
§ 1. Although Article I does not say so expressly, the power to secure “needed information . . .
has long been treated as an attribute of the power to legislate.” McGrain v. Daugherty, 273 U.S.
135, 161 (1927). As the Supreme Court observed in McGrain, the power to investigate is deeply
rooted in the nation’s history: “It was so regarded in the British Parliament and in the colonial
Legislatures before the American Revolution, and a like view has prevailed and been carried into
effect in both houses of Congress and in most of the state Legislatures.” Id. “There can be no
doubt as to the power of Congress, by itself or through its committees, to investigate matters and
conditions relating to contemplated legislation.” Quinn v. United States, 349 U.S. 155, 160 (1955).
Related to Congress’s legislative function is its “informing function.” The Supreme Court
has understood that function to permit “Congress to inquire into and publicize corruption,
maladministration or inefficiency in agencies of the Government.” Watkins v. United States, 354
U.S. 178, 200 n.33 (1957). “From the earliest times in its history, the Congress has assiduously
performed an ‘informing function’ of this nature.” Id. (citing James M. Landis, Constitutional
Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 168–194
(1926)). The informing function finds its roots in the scholarship of President Woodrow Wilson,
which the Court first cited in United States v. Rumely:
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
16 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.
345 U.S. 41, 43 (1953) (quoting WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN
AMERICAN POLITICS, 303). Thus, though not wholly distinct from its legislative function, the
informing function is a critical responsibility uniquely granted to Congress under Article I. See
Landis, 40 HARV. L. REV. at 205 n.227 (describing the informing function as “implied and
inherent” within the legislative function).
In furtherance of these duties, Congress’s power to investigate is “broad.” Watkins, 354
U.S. at 187. “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.” Id. In short, “[t]he
scope of the power of inquiry . . . is as penetrating and far-reaching as the potential power to enact
and appropriate under the Constitution.” Barenblatt v. United States, 360 U.S. 109, 111 (1959).
But Congress’s investigatory power is not unbounded. The Constitution’s very structure
puts limits on it. For instance, the power to investigate may not “extend to an area in which
Congress is forbidden to legislate.” Quinn, 349 U.S. at 161. Nor may Congress “trench upon
Executive or judicial prerogatives.” McSurely v. McClellan, 521 F.2d 1024, 1038 (D.C. Cir. 1975).
A prime example of such overreach is exercising the “powers of law enforcement; those powers
are assigned under our Constitution to the Executive and the Judiciary.” Quinn, 349 U.S. at 161.
The Supreme Court has recognized other limits. Congress cannot “inquire into private affairs
unrelated to a valid legislative purpose.” Id. Nor is there a “congressional power to expose for
the sake of exposure.” Watkins, 354 U.S. at 200. “The public is, of course, entitled to be informed
17 concerning the workings of its government. That cannot be inflated into a general power to expose
where the predominant result can only be an invasion of the private rights of individuals.” Id. 22
B. Determining Whether Congress Has Acted Legislatively
When a court is asked to decide whether Congress has used its investigative power
improperly, its analysis must be highly deferential to the legislative branch. A number of
guideposts mark the way forward.
To start, the court must proceed from the assumption “that the action of the legislative body
was with a legitimate object, if it is capable of being so construed, and [the court] ha[s] no right to
assume that the contrary was intended.” McGrain, 273 U.S. at 178 (citation omitted). It also
“must presume that the committees of Congress will exercise their powers responsibly and with
due regard for the rights of affected parties.” Exxon Corp., 589 F.2d at 589. So, when it appears
that Congress is investigating on a subject-matter in aid of legislating, “the presumption should be
indulged that this was the real object.” McGrain, 273 U.S. at 178.
An important corollary to this presumption of regularity is that courts may not “test[] the
motives of committee members” to negate an otherwise facially valid legislative purpose. Watkins,
354 U.S. at 200; see also Eastland, 421 U.S. at 508 (“Our cases make clear that in determining the
legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”)
(citation omitted). “So long as Congress acts in pursuance of its constitutional power, the Judiciary
lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
Barenblatt, 360 U.S. at 132 (citation omitted). Thus, it is not the court’s role to decipher whether
Congress’s true purpose in pursuing an investigation is to aid legislation or something more sinister
22 Other limitations on Congress’s investigative powers can be found in the Bill of Rights. See Quinn, 349 U.S. at 161. Plaintiffs have not asserted that disclosure of the records sought from Mazars would implicate any “specific individual guarantees of the Bill of Rights.” Id.; see generally Pls.’ Stmt.
18 such as exacting political retribution. See McSurely, 521 F.2d at 1038. If there is some discernable
legislative purpose, courts shall not impede Congress’s investigative actions. See Watkins, 354
U.S. at 200 (“Their motives alone would not vitiate an investigation which had been instituted by
a House of Congress if that assembly’s legislative purpose is being served.”).
Although Congress’s motives are off limits, courts can consider what Congress has said
publicly to decide whether it has exceeded its authority. See Shelton, 404 F.2d at 1297. Relevant
evidence includes the resolution authorizing the investigation, statements by Committee members,
and questions posed during hearings. See id. At the same time, the mere absence of public
statements identifying the investigation’s purpose or subject matter is not, by itself, conclusive
proof of an invalid purpose. See McGrain, 273 U.S. at 176–78. Congress is not required to
announce its intentions in advance. See id. at 178. Similarly, it does not matter if the investigation
does not produce legislation. See Eastland, 421 U.S. at 509. “The very nature of the investigative
function—like any research—is that it takes the searchers up some ‘blind alleys’ and into
nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end
result.” Id.; see also Townsend v. United States, 95 F.2d 352, 355 (D.C. Cir. 1938) (Congress’s
“power to conduct a hearing for legislative purposes is not to be measured by recommendations
for legislation or their absence.”). The critical inquiry then is not legislative certainty, but
legislative potential: If the subject matter of the investigation is “one on which legislation could
be had,” Congress acts within its legislative function. McGrain, 273 U.S. at 177 (emphasis added);
see also Eastland, 421 U.S. at 504 n.15 (“The subject of any inquiry always must be one ‘on which
legislation could be had.’”) (quoting McGrain, 273 U.S. at 177).
Once a court finds that an investigation is one upon which legislation could be had, it must
not entangle itself in judgments about the investigation’s scope or the evidence sought. Only an
19 investigative demand that is “plainly incompetent or irrelevant to any lawful purpose of the
[committee] in the discharge of its duties” will fail to pass muster. McPhaul v. United States, 364
U.S. 372, 381 (1960) (citation omitted) (cleaned up). Importantly, in making this assessment, it is
not the judicial officer’s job to conduct a “line-by-line review of the Committee’s requests.” Bean
LLC v. John Doe Bank, 291 F. Supp. 3d. 34, 44 (D.D.C. 2018). “There is no requirement that
every piece of information gathered in such an investigation be justified before the judiciary.”
McSurely, 521 F.2d at 1041.
And, finally, courts must take care not to be swayed by the political conflicts of the day.
Its role is not to act as a political referee. As the Supreme Court cautioned in Tenney v. Brandhove:
In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Self-discipline and the voters must be the ultimate reliance for discouraging or correcting such abuses. The courts should not go beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province.
341 U.S. 367, 378 (1951).
IV. ANALYSIS
With these principles in mind, the court proceeds to consider whether the Oversight
Committee’s subpoena to Mazars is “facially legislative in character,” McSurely, 521 F.2d at 1038,
or whether it exceeds Congress’s power to investigate. To answer that question, the court first
considers the legislative reasons offered by the Oversight Committee to justify the subpoena.
It then addresses Plaintiffs’ contentions why those reasons are invalid.
A. Legislative Purpose for Issuing the Subpoena to Mazars
Had the Oversight Committee adopted a resolution that spells out the intended legislative
purpose and scope of its investigation, the court would have begun its inquiry there. Indeed, the
20 Supreme Court has considered congressional resolutions as a primary source from which to glean
whether information “was sought . . . in aid of the legislative function.” McGrain, 273 U.S. at
176; see also Shelton, 404 F.2d at 1297 (observing that relevant sources of evidence to “ascertain
whether [an inquiry] is within the broad investigative authority of Congress” include “the
resolution . . . authorizing the inquiry”). However, the Committee never adopted one. While a
clearly drafted resolution would have made this court’s task easier or might have preempted the
challenge now brought altogether, it is not a constitutional prerequisite to start an investigation.
Cf. McGrain, 273 U.S. at 178.
Without a resolution as a point of reference, the logical starting point for identifying the
purpose of the Mazars subpoena is the memorandum to Members of the Oversight Committee
written by Chairman Cummings on April 12, 2019. Chairman Cummings penned that
Memorandum in anticipation of issuing the subpoena. It is therefore the best evidence of the
Committee’s purpose. The Memorandum lists four areas of investigation: (1) “whether the
President may have engaged in illegal conduct before and during his tenure in office,” (2) “whether
he has undisclosed conflicts of interest that may impair his ability to make impartial policy
decisions,” (3) “whether he is complying with the Emoluments Clauses of the Constitution,” and
(4) “whether he has accurately reported his finances to the Office of Government Ethics and other
federal entities.” Cummings’ April 12th Mem. at 4. Each of these is a subject “on which legislation
could be had.” McGrain, 273 U.S. at 177.
Taking the reasons in reverse order, the accuracy of the President’s financial reporting
relates directly to the law that requires it: The Ethics in Government Act of 1978. See 5 U.S.C.
App. 4 § 101 et seq. In his letter to the White House Counsel dated February 15, 2019, Chairman
Cummings alluded to how documents relating to the accuracy of the President’s disclosures fell
21 within the legislative purview of Congress: “Since the earliest days of our republic, Congress has
investigated how existing laws are being implemented and whether changes to the laws are
necessary. For decades, this has included laws relating to financial disclosures required of the
President.” Cummings’ February 15th Letter at 9. As to the specific demand made on February
15th, which related to the payments by Michael Cohen and the President’s failure to publicly report
them as a liability, Chairman Cummings explained that “[t]hese documents will help the
Committee determine why the President failed to report these payments and whether reforms are
necessary to address deficiencies with current laws, rules, and regulations.” Id. (emphasis added).
This legislative rationale applies equally to the financial records requested by the Mazars
subpoena. Congress reasonably might consider those documents in connection with deciding
whether to legislate on federal ethics laws and regulations. For example, the discovery of
additional disclosure violations by the President could influence whether Congress strengthens
public reporting requirements or enhances penalties for non-compliance. Thus, there can be little
doubt that Congress’s interest in the accuracy of the President’s financial disclosures falls within
the legislative sphere.
Investigating whether the President is abiding by the Foreign Emoluments Clause is
likewise a subject on which legislation, or similar congressional action, could be had. The Foreign
Emoluments Clause prohibits the President from “accept[ing]” any “Emolument” from “any King,
Prince, or foreign State” without the “Consent of the Congress.” U.S. Const. art. I, § 9, cl. 8. The
Constitution thus expressly vests in Congress the unique authority to approve the President’s
acceptance of “Emoluments,” however one defines that term. See generally Blumenthal v. Trump,
No. 17-1154 (EGS), 2019 WL 1923398 (D.D.C. Apr. 30, 2019). Even under the President’s
favored interpretation, the Clause, at a minimum, “was intended to combat corruption and foreign
22 influence . . .” Id. at *8. Surely, incident to Congress’s authority to consent to the President’s
receipt of Emoluments is the power to investigate the President’s compliance with the Clause.
Without such power, Congress’s constitutional function to approve or disapprove Emoluments
would be severely and unduly constrained. The Founders could not have intended that result. A
congressional investigation to carry out an expressly delegated Article I function, in addition to
any legislation that might be had relating to that function, is plainly valid. 23
So, too, is an investigation to determine whether the President has any conflicts of interest.
As already discussed, it lies within Congress’s province to legislate regarding the ethics of
government officials. Indeed, exposing conflicts of interest is one of the core objectives of the
Ethics in Government Act. As the D.C. Circuit has observed, “the Act shows Congress’[s] general
belief that public disclosure of conflicts of interest is desirable despite its cost in loss of personal
privacy.” Washington Post Co. v. U.S. Dep’t of Health & Human Servs., 690 F.2d 252, 265 (D.C.
Cir. 1982). Obtaining records to shed light on whether the President has undisclosed conflicts of
interests is therefore entirely consistent with potential legislation in an area where Congress
already has acted and made policy judgments.
Finally, a congressional investigation into “illegal conduct before and during [the
President’s] tenure in office,” Cummings’ April 12th Mem. at 4, fits comfortably within the broad
scope of Congress’s investigative powers. At a minimum, such an investigation is justified based
on Congress’s “informing function,” that is, its power “to inquire into and publicize corruption,”
23 To be clear, even if Congress’s authority to approve the President’s receipt of Emoluments is technically not a “legislative” act, the court doubts that the Supreme Court would read its precedent to foreclose Congress from investigating an Emoluments Clause violation based on a semantic distinction. The fact is, no court has ever been asked to address the extent of Congress’s power to police the Emoluments Clause. Therefore, it should come as no surprise that there is no case holding that Congress may exercise its power to investigate in relation to that Clause. But just as Congress’s authority to legislate is expressly rooted in Article I, so too is its power to consent to presidential receipt of Emoluments. If Congress’s power to investigate is incidental to its legislative function, it likewise must be incidental to carry out its Foreign Emoluments Clause function.
23 Watkins, 354 U.S. at 200 n.33. 24 It is simply not fathomable 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. On this score, history provides a useful guide.
Cf. Tobin v. United States, 306 F.2d 270, 275–76 (D.C. Cir. 1962) (relying on historical practice
to determine the scope of a congressional investigation). Twice in the last 50 years Congress has
investigated a sitting President for alleged law violations, before initiating impeachment
proceedings. It did so in 1973 by establishing the Senate Select Committee on Presidential
Campaign Activities, better known as the Watergate Committee, and then did so again in 1995 by
establishing the Special Committee to Investigate Whitewater Development Corporation and
Related Matters. See S. Res. 60 (93rd Cong., 1st Session) (Feb. 7, 1973) [hereinafter Watergate
Res.]; see also S. Res. 120 (104th Cong., 1st Session) (May 17, 1995). The former investigation
included within its scope potential corruption by President Nixon while in office, while the latter
concerned alleged illegal misconduct by President Clinton before his time in office. Congress
plainly views itself as having sweeping authority to investigate illegal conduct of a President,
before and after taking office. This court is not prepared to roll back the tide of history. 25
24 Plaintiffs suggested at oral argument that Congress’s informing function was limited to rooting out corruption only in “agencies” of the Government, and the President is not an “agency” of the government. See Hr’g Tr. at 9, 75. Although footnote 33 in Watkins refers to the informing function in connection with “agencies of the Government,” Watkins, 354 U.S. 200 n.33, the original conception of that function as embraced by the Court in Rumely was not so limited, see Rumely, 345 U.S. 41. Rumely spoke more generally of shining a light on “every affair of government” and “the acts and the disposition of the administrative agents of the government,” without qualification. Id. at 43. Watkins’ reference to administrative agencies is therefore better understood as a case-specific statement—the investigation there involved the Attorney General—rather than a limiting principle. Plaintiffs’ artificial line-drawing is antithetical to the checks and balances inherent in the Constitution’s design. 25 Even if an investigation into a sitting President’s past or present illegal conduct lies beyond the Oversight Committee’s reach, its investigation here still would be legitimate because the Committee identified three other justifications with a valid legislative purpose. See McGrain, 273 U.S. at 176–77 (rejecting lower court’s opinion striking down a congressional investigation because the investigation “contemplat[ed] the taking of action other than legislative”).
24 Before moving on to Plaintiffs’ arguments, the court notes that the Oversight Committee
has identified several pieces of actual legislation that, it asserts, are related to its overall
investigation of the President. See Oversight Committee’s Opp’n to Pls.’ Mot. for Prelim.
Injunction, ECF No. 20, at 5–6. The House has passed H.R. 1, which requires, among other things,
the President and Vice President to file new financial disclosure forms within 30 days of taking
office, and to divest all financial interests that would pose a conflict of interest by “either
converting those interests to cash or investments that satisfy ethics rules or placing those interests
in a qualified blind trust or disclosing information about business interests.” Id. at 6 (citing H.R.
1, 116th Cong., Title VIII (2019)). Other bills cited by the Oversight Committee include H.R. 745,
which would strengthen the Office of Government Ethics, and H.R. 706, which would prohibit the
President and Vice President from conducting business directly with the Federal Government. See
id. (citing H.R. 745, 116th Cong. (2019); H.R. 706, 116th Cong. (2019)). There is no mention of
any of these bills in any written request from the Oversight Committee, let alone the
April 12th Memorandum justifying the Mazars subpoena. That absence is not fatal, however.
Again, the question for the court is whether the congressional investigation pertains to a subject
matter on which legislation could be had, so Congress need not proactively identify any specific
legislation to justify its activities. Here, the bills identified by the Oversight Committee
demonstrate Congress’s intent to legislate, at the very least, in the areas of ethics and accountability
for Executive Branch officials, including the President. These are subjects, therefore, on which
legislation could be had.
B. Plaintiffs’ Contentions
The court now turns to Plaintiffs’ contentions. Each of Plaintiffs’ arguments for why the
Mazars subpoena exceeds Congress’s Article I investigative power fall into one of three general
25 categories. First, by characterizing the Oversight Committee’s investigation as one delving “into
the accuracy of a private citizen’s past financial statements,” Plaintiffs contend that the Oversight
Committee is engaged in “a quintessential law enforcement task reserved to the executive and
judicial branches.” Pls.’ Stmt. at 11. Plaintiffs similarly contend that an investigation into the
accuracy of the President’s financial disclosures, his adherence to the Emoluments Clauses, and
his present or past compliance with the law is “law enforcement” activity that encroaches on the
prerogatives of the coordinate branches. Hrg. Tr. at 7, 13–18, 25. Second, Plaintiffs charge that
the Oversight Committee’s investigation “has nothing to do with government oversight,” but is
instead intended to expose for the mere sake of exposure “the conduct of a private citizen years
before he was even a candidate for public office . . .” Pls.’ Stmt. at 11. Finally, Plaintiffs maintain
that the Oversight Committee has exceeded its authority, insofar as it is doing nothing more than
“conduct[ing] roving oversight of the President,” and the records sought from Mazars are not
“pertinent” to any legitimate legislative purpose. Pls.’ Reply in Support of Pls.’ Mot. for Prelim.
Injunction, ECF No. 24 [hereinafter Pls.’ Reply], at 11–12. The court addresses each of these
arguments in turn.
1. Usurpation of Executive and Judicial Functions
Plaintiffs first assert that each of the four justifications for the Mazars subpoena identified
by Chairman Cummings in the April 12th Memorandum falls outside the bounds of legislative
power, because each seeks to determine whether the President broke the law, a function reserved
exclusively to the Executive and Judicial branches. See id. at 13–14. That argument, however,
rests on a false premise. Just because a congressional investigation has the potential to reveal law
violations does not mean such investigation exceeds the legislative function. The Supreme Court’s
understanding of a “legislative” purpose is not so constrained.
26 To be certain, the Supreme Court has said that the “power to investigate must not be
confused with any of the powers of law enforcement; those powers are assigned under our
Constitution to the Executive and the Judiciary.” Quinn, 349 U.S. at 161; see also Watkins, 354
U.S. at 187 (“Nor is the Congress a law enforcement or trial agency.”). But that limitation is not
so absolute as to foreclose Congress from investigating any law violation by a private citizen, let
alone a sitting President, so long as Congress is operating with a legislative purpose. As the Court
explained in Sinclair v. United States:
It may be conceded that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits.
279 U.S. 263, 295 (1929). Thus, the Court has made clear that the mere prospect that a
congressional inquiry will expose law violations does not transform a permissible legislative
investigation into a forbidden executive or judicial function. See McGrain, 273 U.S. at 179–80
(“Nor do we think it a valid objection to the investigation that it might possibly disclose crime or
wrongdoing on [the Attorney’s General’s] part.”); see also Townsend, 95 F.2d at 355 (describing
McGrain as holding that “the presumption should be indulged that the object of the inquiry was to
aid the Senate in legislating . . . even though the investigation might possibly disclose crime or
wrongdoing on the part of the then Attorney General, whose name was expressly referred to in the
resolution”).
Moreover, appellate courts have demanded exacting proof before declaring that Congress
has impermissibly intruded into exclusive executive or judicial territories. According to the
Supreme Court, “[t]o find that a committee’s investigation has exceeded the bounds of legislative
power it must be obvious that there was a usurpation of functions exclusively vested in the
27 Judiciary or the Executive.” Tenney, 341 U.S. at 378 (emphasis added). Similarly, the D.C. Circuit
has said that Congress avoids trenching upon executive or judicial prerogatives “so long as [the
investigative activity] remains facially legislative in character.” McSurely, 521 F.2d at 1038.
Therefore, a congressional investigation that seeks to uncover wrongdoing does not, without more,
exceed the scope of Congress’s authority.
In this case, there is nothing “obvious” about the Oversight Committee’s activities to
support the conclusion that the subpoena to Mazars is a usurpation of an exclusively executive or
judicial function. Nothing “give[s ] warrant for thinking the [Oversight Committee is] attempting
or intending to try [the President] at its bar or before its committee for any crime or wrongdoing.”
McGrain, 273 U.S. at 179. Nor is there evidence before the court that the Oversight Committee
initiated its investigative activities at the behest of federal or state law enforcement officials, or is
coordinating its actions with such officials. If anything, the evidence is to the contrary.
The Executive Branch is clearly not coordinating with Congress, as it continues to resist calls to
disclose records relating to the President’s actions in areas arguably well within Congress’s
investigative powers. 26 The Committee’s stated purposes, therefore, do not usurp judicial or
executive functions.
To support their position, Plaintiffs point out that (1) the Mazars subpoena arose out of the
testimony of Michael Cohen—“an admitted perjurer,” Pls.’ Stmt. at 4; (2) the records sought relate
primarily to the President’s personal and financial interests years before he became a candidate,
id. at 11; and (3) Chairman Cummings admitted that the Mazars subpoena was intended to
26 See, e.g., Carol D. Leonnig, et al., No ‘Do-Over’ on Mueller Probe, White House Lawyer Tells House Panel, Saying Demands for Records, Staff Testimony Will be Refused, WASH. POST, May 15, 2019, https://www.washingtonpost.com/politics/no-do-over-on-mueller-probe-white-house-lawyer-tells-house-panel- saying-demands-for-records-staff-testimony-will-be-refused/2019/05/15/1ad19728-7715-11e9-b3f5- 5673edf2d127_story.html?utm_term=.b67bc595c86a (last visited May 20, 2019).
28 “investigate whether the President may have engaged in illegal conduct before and during his
tenure in office,” Cummings’ April 12th Mem. at 4. In addition, Plaintiffs cite to statements made
by Chairman Cummings before he issued the Mazars subpoena. For instance, in his March 20th
letter to Mazars, Chairman Cummings focused solely on Michael Cohen’s allegations that
President Trump misrepresented his assets and liabilities and made no mention of a legislative
purpose for obtaining the records. See Cummings’ March 20th Letter; see also First Supp. Decl.
at 5–9. Additionally, Plaintiffs offer a November 2018 Vox article that quotes Chairman
Cummings as saying, “[w]e’ve got to address this issue of exposing President Trump and what he
has done, and we’ve got to face the truth . . . The [P]resident is a guy who calls truth lies and lies
truth. But at some point, he’s also creating policy, and that’s affecting people’s day-to-day life.”
First Supp. Decl. at 42. Plaintiffs also provide a Politico article in which Chairman Cummings is
quoted as saying, “[o]ver the last two years President Trump set the tone from the top in his
administration that behaving ethically and complying with the law is optional . . . We’re better
than that.” Id. at 54. None of these facts, individually or taken together, make for an “obvious”
“usurpation of functions exclusively vested in the Judiciary or the Executive.” Tenney, 341 U.S.
at 378.
History has shown that congressionally-exposed criminal conduct by the President or a
high-ranking Executive Branch official can lead to legislation. The Senate Watergate Committee
provides an apt example. That Committee’s express mandate was to investigate “the extent, if
any, to which illegal, improper, or unethical activities were engaged in by any persons, acting
either individually or in combination with others, in the presidential election of 1972, or in any
related campaign or canvass conducted by or [o]n behalf of any person seeking nomination or
election as the candidate . . . for the office of President . . .” Watergate Res. at 1–2. As a
29 consequence of the Committee’s work, Congress passed numerous pieces of legislation—among
them, the Ethics in Government Act, the Congressional Budget and Impoundment Control Act of
1974, the War Powers Resolution, and the Independent Counsel Statute—with objectives to “open
up the operation of the presidency to greater public oversight, subject[] the presidency to legal
checks by other branches or institutions of government and, more generally, impose[] rule of law
principles to more and more types of presidential decision making.” Michael A. Fitts,
The Legalization of the Presidency: A Twenty-Five Year Watergate Retrospective, 43 ST. LOUIS
UNIV. LAW J. 725, 726 (1999). The Teapot Dome Scandal provides another illustration. That
congressional investigation concerned the award of a no-bid contract to lease federal oil reserves
in Wyoming. Congress’s investigation revealed that the Secretary of Interior had accepted bribes
from the oil companies that were awarded the leases. This discovery motivated Congress to enact
several good-government reforms, including the Revenue Act of 1924 and the Federal Corrupt
Practices Act of 1925. See James Sample, The Last Rites of Public Campaign Financing?, 92
NEB. L. REV. 349, 363 (2013). See also Lawrence A. Zelenak & Marjorie E. Kornhauser, Shaping
Public Opinion and the Law: How a “Common Man” Campaign Ended a Rich Man’s Law, 73
LAW & CONTEMP. PROBS. 123, 126 (2010). This court is in no position to say that an equally
ambitious legislative agenda might not arise out of the current era of congressional investigations
of the presidency.
2. Investigation of Private Affairs
Plaintiffs next accuse the Oversight Committee of issuing the subpoena to Mazars simply
to investigate the private affairs of a citizen. See Pls.’ Stmt. at 9, 11. This argument fares no better
than Plaintiffs’ first.
30 More than a century ago, in Kilbourn v. Thompson, the Supreme Court stated that Congress
does not possess “the general power of making inquiry into the private affairs of the citizen.” 103
U.S. 168, 190 (1880). In the ensuing decades, the Supreme Court repeatedly has affirmed that
constraint on Congress’s investigative powers. See, e.g., McGrain, 273 U.S. at 173–74; Quinn,
349 U.S. at 161; Eastland, 421 U.S. at 504 n.15. But Kilbourn is the high-water mark for that
limiting principle. In the nearly 140 years since Kilbourn, neither the Supreme Court nor any
circuit court has found a congressional investigation unconstitutional because it invades the
“private affairs of the citizen.” Indeed, years later, in the context of warning courts to be wary of
declaring a congressional inquiry unconstitutional, the Supreme Court acknowledged Kilbourn’s
shortcomings:
Experience admonishes us to tread warily in this domain. The loose language of Kilbourn v. Thompson, 103 U.S. 168, the weighty criticism to which it has been subjected, see, e.g., Fairman, Mr. Justice Miller and the Supreme Court, 332–334; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, the inroads that have been made upon that case by later cases, McGrain v. Daugherty, 273 U.S. 135, 170–171, and Sinclair v. United States, 279 U.S. 263, strongly counsel abstention from adjudication unless no choice is left.
Rumely, 345 U.S. at 46 (alternations added). Accordingly, although the notion from Kilbourn that
Congress does not have the general power to investigate into personal affairs remains alive today,
the case is largely impotent as a guiding constitutional principle. See Landis, 40 HARV. L. REV.
at 220 (“But no standard for judgment can be developed from Kilbourn v. Thompson. Its result
contradicts an unbroken Congressional practice continuing even after the decision, with the
increasing realization that committees of inquiry are necessary in order to make government
effectively responsible to the electorate.”).
31 How then to measure whether Congress has ventured into impermissible territory of
investigating the personal affairs of a private citizen? The Supreme Court has provided some
guidance. In Quinn, the Court said that Congress cannot use its investigative power “to inquire
into private affairs unrelated to a valid legislative purpose.” 349 U.S. at 161 (emphasis added).
Similarly, in Watkins, the Court stated that: “The public is, of course, entitled to be informed
concerning the workings of its government. That cannot be inflated into a general power to expose
where the predominant result can only be an invasion of the private rights of individuals.” 354
U.S. at 200 (emphasis added). Thus, the question the court must ask is whether the Oversight
Committee’s investigation into the President’s personal affairs is fully divorced from any
legislative purpose.
Indulging in the presumption that when Congress acts it does so for a proper reason, the
court cannot say that the records sought from Mazars are “unrelated to a valid legislative purpose”
or that the “predominant result can only be an invasion of” the President’s private affairs. As
discussed above, legislation could stem from the Oversight Committee’s investigation of the
President’s personal and corporate finances and the possible conflicts of interest under which he
is operating. Thus, the potential presence of some intent to “ridicule, harass, or punish” the
President cannot overcome this facially valid legislative purpose. McSurely, 521 F.2d at 1038.
In their Complaint and in their supplemental evidentiary submissions, Plaintiffs reference
various statements from Democratic Members of Congress and congressional aides to the effect
that Democrats are intending to use their subpoena power to exact political retribution. See Compl.
¶¶ 27–30; see also First Supp. Decl. at 35–79. For instance, one Congressman is quoted as saying,
“We’re going to have to build an air traffic control tower to keep track of all the subpoenas flying
from here to the White House.” Compl. ¶ 29. Another unnamed Democratic official said that
32 House Democrats were preparing a “subpoena cannon” to fire at the President. Id. Plaintiffs urge
that these and similar statements reveal that the Democrats’ true motive is to embarrass and harass
the President, which cannot be cured by the Committee’s “retroactive rationalizations” in the April
12th Memorandum. Hr’g Tr. at 8.
Even if the court were to take these statements at face value—at best, a dubious evidentiary
proposition given that these individuals do not control the actions of the Oversight Committee—
they make no material difference. The case law makes clear that “motives alone would not vitiate
an investigation which had been instituted by a House of Congress if that assembly’s legislative
purpose is being served.” Watkins, 354 U.S. at 200. In Watkins, the petitioner “marshalled an
impressive array of evidence that some Congressmen have believed that” their duty “was to bring
down upon himself and others the violence of public reaction because of their past beliefs,
expressions and associations.” Id. at 199. This evidence did not, however, carry the day with the
Supreme Court because Congress also had a legitimate legislative purpose for its investigation.
Id. at 200. Likewise, in McGrain, the Court rejected a lower court’s decision echoing the
arguments Plaintiffs advance here: “The extreme personal cast of the original resolutions; the
spirit of hostility towards the then Attorney General which they breathe; that it was not avowed
that legislative action was had in view until after the action of the Senate had been challenged; and
that the avowal then was coupled with an avowal that other action was had in view—are calculated
to create the impression that the idea of legislative action being in contemplation was an
afterthought.” McGrain, 273 U.S. at 176. The Court held that the lower court was “wrong,”
because “the subject [of the investigation] was one on which legislation could be had.” Id. at 177.
33 In short, as long as there is a facially valid legislative purpose for the investigation, Congress acts
within its constitutional authority. That is the case here. 27
3. Pertinency of the Records Request
Plaintiffs’ third and final challenge rests on the “pertinency” of the records requested from
Mazars. See Pls.’ Reply at 12–14. This argument takes multiple forms, none of which are
persuasive.
To begin, according to Plaintiffs, for the Mazars subpoena to be valid the records sought
must be “‘reasonably relevant’ to [the subpoena’s] legitimate legislative purpose,” and the records
demanded fail that test. Id. at 13 (citing McPhaul, 364 U.S. at 381–82). This argument suffers
from two problems. The first is that Plaintiffs conflate the concept of “pertinency” with the notion
of “relevancy” as used in civil proceedings. “Pertinency” does not require the court to ask, as it
would in a civil discovery dispute, whether the documents requested are likely to yield useful
evidence. Instead, pertinency “is a jurisdictional concept . . . drawn from the nature of a
congressional committee’s source of authority.” Watkins, 354 U.S. at 206. The concept appears
most often in the context of a criminal conviction for contempt of Congress, in which a person has
refused to comply with a subpoena or answer questions posed at a hearing. Pertinency, in this
setting, is an element of criminal contempt. See 2 U.S.C. § 192 (making it a misdemeanor for a
person summoned as a witness before Congress either to not appear or, if “having appeared, [to]
refuse[] to answer any question pertinent to the question under inquiry . . .”) (emphasis added).
The pertinency inquiry therefore asks whether the question posed to a witness is one that fell within
27 For this same reason, the forceful dissenting statements of the Ranking Member of the Oversight Committee, Congressman Jim Jordan, do not change the court’s calculus. The Ranking Member views the Committee’s investigation as without legislative purpose, and its sole design to harass and embarrass the President. See Second Decl. of William S. Consovoy, ECF No. 34; Ex. B, Letter from the Honorable Jim Jordan, Ranking Member, House Comm. on Oversight & Reform, to the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform (May 15, 2019). But, again, so long as lawmaking could follow from the Committee’s investigation, any attendant political purpose does not make the inquiry unconstitutional.
34 the scope of the Committee’s investigative authority, which typically is defined by the resolution
authorizing the investigation. See Watkins, 354 U.S. at 207–10; Sinclair, 279 U.S. at 292 (stating
that, under the contempt statute, “a witness rightfully may refuse to answer where the bounds of
the power are exceeded or where the questions asked are not pertinent to the matter under
inquiry”). This is not a contempt case and therefore the pertinency inquiry, properly understood,
has no role here.
But even if the court were to treat pertinency as akin to a relevance determination, that test
is satisfied here. The standard adopted by the Supreme Court is a forgiving one. The subpoenaed
records need only be “not plainly incompetent or irrelevant to any lawful purpose [of the
Committee] in the discharge of its duties.” McPhaul, 364 U.S. at 381 (cleaned up). Here, the
Oversight Committee has shown that it is not engaged in a pure fishing expedition for the
President’s financial records. It is undisputed that the President did not initially identify as
liabilities on his public disclosure forms the payments that Michael Cohen made to alleged
mistresses during the presidential campaign. 28 Furthermore, Michael Cohen has pleaded guilty to
campaign finance violations arising from those payments. 29 These events, when combined with
Cohen’s testimony and the financial statements he supplied, make it reasonable for the Oversight
Committee to believe that the records sought from Mazars might reveal other financial
transgressions or improprieties. As already discussed, it is not unreasonable to think that the
Mazars records might assist Congress in determining whether ethics statutes or regulations need
updating to strengthen Executive Branch accountability, promote transparency, and protect against
Executive Branch officials operating under conflicts of interest. Additionally, the Mazars records
28 Letter from David J. Apol, supra n.10. 29 See Mark Mazzetti, et al., Cohen Pleads Guilty and Details Trump’s Involvement in Moscow Tower Project, N.Y. TIMES, Nov. 29, 2018, https://www.nytimes.com/2018/11/29/nyregion/michael-cohen-trump-russia-mueller.html (last visited May 20, 2019).
35 could provide the Oversight Committee with clues about the President’s foreign interests or
sources of foreign income, if any, which would assist in determining Congress’s obligations under
the Foreign Emoluments Clause. This concern is not a new one. In other letters seeking records,
one sent to the Trump Organization and the other to the GSA, Chairman Cummings expressly
stated that the records sought would be useful in assessing the President’s compliance with the
Foreign Emoluments Clause. See n. 7 & 8, supra. The records from Mazars likewise could
advance this legislative purpose. Pertinency, to the extent it may apply, is thus satisfied.
Two more arguments remain. First, Plaintiffs insist that the Oversight Committee cannot
be seeking pertinent material because the legislative actions contemplated “extend to an area in
which Congress is forbidden to legislate,” Quinn, 349 U.S. at 161. See Pls.’ Reply at 15–16. For
example, Plaintiffs argue that H.R. 1 is unconstitutional insofar as it adds qualifications for the
presidency beyond those contained in Article II of the Constitution. See id. at 16. More broadly,
Plaintiffs maintain that any regulation of the “President’s finances or conflicts of interest” would
be unconstitutional for the same reason. Id.
Plaintiffs’ contention flies in the face of decades of legislation covering the President. For
example, the Ethics in Government Act requires the President to report the source, type, and
amount of certain income and assets to the Office of Government Ethics. See 5 U.S.C. App. 4
§§ 101(a), (f); id. §§ 102(a), (b); id. § 103(b). The Stop Trading on Congressional Knowledge Act
of 2012 provides that no “executive branch employee,” including the President, may use
“nonpublic information derived from such person’s position” “as a means for making a private
profit,” and further states that “executive branch employees,” including the President, “owe[] a
duty arising from a relationship of trust and confidence to the United States Government and the
citizens of the United States with respect to material, nonpublic information derived from [their]
36 position.” Pub. Law No. 112-105 § 9. And, the Presidential Records Act “directs the President to
‘take all such steps as may be necessary to assure that the activities, deliberations, decisions, and
policies that reflect the performance of his constitutional, statutory, or other official or ceremonial
duties are adequately documented and that such records are maintained as Presidential records.’”
Armstrong v. Bush, 924 F.2d 282, 285 (D.C. Cir. 1991) (citing 44 U.S.C. § 2203). Plaintiffs’
argument, if accepted, would wipe out some, and perhaps all, of these statutes.
But there is an even more fundamental problem with Plaintiffs’ position. It is not the
court’s role in this context to evaluate the constitutionality of proposed or contemplated legislation.
Doing so would go beyond its limited powers. The Supreme Court said as much in Rumely:
“Whenever constitutional limits upon the investigative power of Congress have to be drawn by
this Court, it ought only to be done after Congress has demonstrated its full awareness of what is
at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to
tread warily in this domain.” 345 U.S. at 46. Consequently, courts must avoid declaring an
investigation by Congress unconstitutional, unless “no choice is left.” See id. In this case, not
only is there no need to confront difficult constitutional questions, it would be improper to do so.
Federal courts do not “render advisory opinions. For adjudication of constitutional issues
‘concrete legal issues, presented in actual cases, not abstractions’ are requisite.” United Pub.
Workers of Am. (C.I.O.), et al., v. Mitchell, et al., 330 U.S. 75, 89 (1947) (citations omitted). The
court here faces only abstract constitutional questions about prospective legislation that is not yet
law. The court cannot declare a congressional investigation unconstitutional in such ill-defined
circumstances. 30
30 The D.C. Circuit’s decision in Tobin does not compel a different result. 306 F.2d 270 (D.C. Cir. 1962). If anything, Tobin advises courts to sidestep important constitutional issues unless squarely presented and unavoidable. In Tobin, the setting was review of a contempt conviction, which the Circuit found “is not the most practical method of inducing courts to answer broad questions broadly.” 306 F.2d at 274. This case is even less amenable to resolving an important
37 Finally, Plaintiffs suggest that the court has the authority to “narrow overbroad
[congressional] subpoenas,” and should consider doing so here. Pls.’ Reply at 13. But the federal
courts enjoy no such power. “A legislative inquiry may be as broad, as searching, and as
exhaustive as is necessary to make effective the constitutional powers of Congress.” Townsend,
95 F.2d at 361 (citation omitted). “There is no requirement that every piece of information
gathered in such an investigation be justified before the judiciary.” McSurely, 521 F.2d at 1041.
The court therefore cannot “engage in a line-by-line review” of the Mazars subpoena and narrow
its demands. Bean LLC, 291 F. Supp. 3d at 44; see also Senate Select Committee on Ethics v.
Packwood, 845 F. Supp. 17, 20 (D.D.C. 1994) (“This [c]ourt . . . has no authority to restrict the
scope of the Ethics Committee’s investigation.”).
V. REQUEST FOR STAY PENDING APPEAL
At the May 14th oral argument, Plaintiffs asked the court to stay the return date of the
subpoena beyond the seven days already agreed upon by the parties, pending final appellate review
by the D.C. Circuit. See Hr’g Tr. at 77–78. The court declines to do so.
Federal Rule of Civil Procedure 62(c) authorizes a district court to issue an injunction
pending appeal. Fed. R. Civ. P. 62(c). To obtain a stay pending appeal, the moving party “must
establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm
in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that
an injunction is in the public interest.” See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008); accord Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985)
(per curiam) (citing Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843
constitutional issue than Tobin. There is no conviction or piece of legislation before the court to evaluate. Assessing the constitutionality of a not-yet-enacted statute would be the equivalent of answering a hypothetical question on a law school exam. This court cannot engage in such an exercise.
38 (D.C. Cir. 1977)). The court balances these factors on a “sliding scale,” such that “a strong
showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644
F.3d 388, 392 (D.C. Cir. 2011); see also Cigar Ass’n of Am. v. U.S. Food & Drug Admin.,
317 F. Supp. 3d 555, 560 (D.D.C. 2018).
As to the first factor, Plaintiffs have not shown that their challenge to the Mazars subpoena
presents “serious legal questions going to the merits, so serious, substantial, difficult as to make
them a fair ground of litigation and thus for more deliberative investigation.” Population Inst. v.
McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986) (quoting Holiday Tours, 559 F.2d at 844).
None of the three grounds upon which Plaintiffs challenge the subpoena rests on “potentially
persuasive authority.” John Doe Co. v. Consumer Financial Protection Bureau, 849 F.3d 1129,
1131 (D.C. Cir. 2017). Indeed, Plaintiffs have cited no case since Kilbourn from 1880 in which
the Supreme Court or the D.C. Circuit has interfered with a congressional subpoena—because it
either intrudes on the law enforcement prerogatives of the Executive or Judicial branches, seeks
personal information unrelated to a legislative purpose, or demands records that lack “pertinency.”
This case does not merit becoming the first in nearly 140 years. 31
As for irreparable harm, this court has recognized that “the disclosure of confidential
information is, by its very nature, irreparable ‘because such information, once disclosed, loses its
confidential nature.’” Robert Half Int’l Inc. v. Billingham, 315 F. Supp. 3d 419, 433 (D.D.C. 2018)
(citations omitted). That concern is somewhat mitigated here, however, because of the recipient
of the records. Unlike Robert Half Int’l, where the challenged disclosure was to a market
competitor, the disclosure here is made to Congress, and the D.C. Circuit has held that “courts
31 This case is unlike Eastland in which the D.C. Circuit by a 2-1 margin granted a stay to enforce subpoenas issued by Congress. See United States Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1256–57 (D.C. Cir. 1974), rev’d on other grounds, Eastland, 421 U.S. at 491. The court granted the stay because the case presented “serious constitutional questions . . .” Id. at 1256. No such “serious constitutional questions” are presented here.
39 must presume that the committees of Congress will exercise their powers responsibly and with due
regard for the rights of affected parties.” Exxon, 589 F.2d at 589 (citation omitted). That said, the
court is not naïve to reality—a reality confirmed by the fact that the Oversight Committee has said
that the decision whether to make the records public lies within its discretion. See Hr’g Tr. at 59.
Thus, there is a chance that some records obtained from Mazars will become public soon after they
are produced. The second factor of irreparable harm therefore favors a stay.
The final two factors—the balance of equities and the public interest—merge when, as
here, “the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). These
factors tip the balance in favor of denying a stay. In Exxon, the plaintiff had challenged Congress’s
right to obtain records from the Federal Trade Commission that contained its trade secrets.
589 F.2d at 586–87. The district court denied the plaintiff’s request for injunctive relief. In
affirming that decision on appeal, the D.C. Circuit held that the public interest favored Congress
having access to the records. The court stated that the plaintiff’s burden to obtain injunctive relief
was “considerably heightened by the clear public interest in maximizing the effectiveness of the
investigatory powers of Congress . . . It would, then, require an extremely strong showing by the
appellants to succeed in obtaining an injunction in light of the compelling public interest in denying
such relief.” Id. at 594 (emphasis added). The court concluded: “To grant the injunction
appellants request, this court would be required to interfere with the operation of Congress, and
also to depart from traditional doctrine concerning the availability of equitable relief.” Id.
The same would be true in this case. 32
32 The court acknowledges that this case differs from Exxon in one respect. Unlike Exxon, this case does involve records whose public disclosure might give rise to “private injury.” 589 F.2d at 594. It is unclear, however, what proportion of the records at issue in this case are truly “personal,” as opposed to corporate records. The fact of some uncertain amount of private injury does not change the court’s calculus.
40 The court is well aware that this case involves records concerning the private and business
affairs of the President of the United States. But on the question of whether to grant a stay pending
appeal, the President is subject to the same legal standard as any other litigant that does not prevail.
Plaintiffs have not raised a “serious legal question[] going to the merits.” Population Inst., 797
F.2d at 1078. And, the balance of equities and the public interest weigh heavily in favor of denying
relief. The risk of irreparable harm does not outweigh these other factors. The court, therefore,
will not stay the return date of the subpoena beyond the seven days agreed upon by the parties.
VI. CONCLUSION
For the foregoing reasons, the court will enter judgment in favor of the House Oversight
Committee and against Plaintiffs. The court denies Plaintiffs’ request for a stay pending appeal.
A separate final order accompanies this Memorandum Opinion.
Dated: May 20, 2019 Amit P. Mehta United States District Court Judge
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