Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Can Congress Investigate Whether the President Has Complied with the Law?
Attention, first-year ConLaw students who haven't yet taken your final exams!: You might want to consider how you'd answer that question.
No, really. You're no doubt wondering: Is that a trick question? Well, until today it would have been. But now . . .
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The House Committee on Oversight and Reform recently asked Mazars USA LLP, one of Donald Trump's accountants, to provide documents and information relating to the firm’s preparation, review, and auditing of financial statements for Trump and his business entities. Mazars told the Committee that it couldn't voluntarily provide the requested documents without a subpoena, and so on April 15th the Committee issued a subpoena to Mazars for the documents.
Trump sued Mazars and the Committee Chairman (who was soon replaced as a defendant by the Committee itself), seeking to enjoin the Committee from enforcing its subpoena to Mazars.
This case doesn't raise any issues of executive privilege or immunity from legislative process. Trump's claim is entirely predicated, instead, on the argument that Congress lacks any legitimate investigative authority that could justify trying to obtain Trump's financial records from Mazars.
A couple of hours ago I attended a hearing that Judge Amit Mehta held on the merits of Trump v. House Committee on Oversight and Reform, No. 19-1136 (D.D.C.). Judge Mehta began his questioning of Trump's lawyer, Will Consovoy, in precisely the right place: He asked, one by one, whether Congress has the power to inquire into any or all of the four specific topics identified by Chairman Elijah Cummings in his memorandum to the Committee a month ago, explaining the basis for the request to Mazars. Cummings wrote that:
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.
Judge Mehta started from the end of this litany: Does Congress have authority to inquire into whether a president "has accurately reported his finances to the Office of Government Ethics?," he asked.
No, said Consovoy.
What about to assess whether the President is violating the Emoluments Clauses of the Constitution? After all, Judge Mehta noted, Article I, section 9 specifically provides that an officer can't accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State, "without the Consent of the Congress."
No go, said Consovoy, Congress can't inquire into the President's possible acceptance of any foreign emoluments, either.
OK, but what about trying to determine whether Trump has undisclosed conflicts of interest that may impair his ability to be impartial in the conduct of his office?
(At this point the die was cast: Judge Mehta didn't get around to asking specifically about Congress's authority to investigate whether the President may have "engaged in illegal conduct before and during his tenure in office," because it wasn't hard to guess what Consovoy's response would have been. Indeed, according to my notes Consovoy did say at one point that Congress lacks any power to assess whether the President is violating the law!)
When it was his turn to argue, Counsel for the House Doug Letter explained why Chairman Cummings was right that "[t]he committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction"--which ought to be enough, in and of itself, to justify the subpoena.
But even apart from such "legislative" functions, Judge Mehta wondered, what about Congress's "informing function"--the power of Congress, which the Supreme Court has recognized, "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). After all, as the Court noted in Watkins, id., "[f]rom the earliest times in its history, the Congress has assiduously performed an 'informing function' of this nature."
Consovoy conceded, as he had to in light of Watkins, that Congress has the power to inquire into and publicize corruption, maladministration or inefficiency in agencies--which are, Consovoy explained, entities created by Congress itself. However, Consovoy hastened to add, Congress does not enjoy a similar power to inquire into and publicize corruption, maladministration or inefficiency by the President.
Wait . . . WHAT? Congress lacks authority to investigate and publicize possible wrongdoing--corruption or maladministration--by the President? Did I hear that right? But cf. Nixon v. Administrator of General Services, 433 U.S, 425, 452-53 (1977) (explaining that Congress enacted a law requiring preservation of a president's records and tapes in order to, inter alia, secure "the American people's ability to reconstruct and come to terms with their history").
Apparently I did, because Judge Mehta, too, was incredulous. He asked Consovoy the obvious follow-up question: Does this mean that Congress's investigations into Watergate and Whitewater [and, I might add, Iran/Contra; etc.] were unconstitutional? Consovoy responded (if my notes are correct) that that would depend upon the basis for those investigations. It was "straightforward," said Judge Mehta: Congress was inquiring into possible violations of the law by the President. In that case, Consovoy said, then yes, perhaps Congress did overstep its authority. [That's my recollection of the substance of Consovoy's responses--not direct quotations. If anyone who attended has a different account, please let me know. Of course when the transcript becomes available I'll insert direct quotations.]
"Bold," "radical" and "unprecedented" don't begin to describe this line of argument. I'm not sure what does. Flabbergasting, I suppose.
I assume Consovoy--a very fine and accomplished advocate--will offer a less astounding, less categorical, answer to such questions when he next has an opportunity to brief them. But for now . . . wow.
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I should add that Consovoy has an alternative argument, too, one he tried to emphasize at every opportunity during the argument today--namely, that the congressional objectives articulated in Chairman Cummings's letter are not the actual reasons for the subpoena, and that the Committee is, instead, trying to "expose for the sake of exposure,” something that's not within Congress's authority, at least not when the exposure is of purely personal matters unrelated to the performance of a public official's functions. Watkins, 354 U.S. at 200. Although "[t]he public is, of 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." Id. The problems with that argument, however, are not only that Congress obviously does have the legitimate and important objectives that the Chairman articulated, but also that courts are generally loath to look behind the reasons offered by a congressional committee. See, e.g., id. (“[A] solution to our problem is not to be found in testing the motives
of committee members for this purpose. Such is not our function.”).
As Judge Mehta's colloquy with Letter indicated, the case also raises questions about whether the particular subpoena at issue here is reasonably tailored to the Committee's legitimate inquiries, and whether the scope of the inquiries exceeds the Committee's jurisdiction. I don't know remotely enough about the facts of the case and the Committee's jurisdiction to offer any informed views on those questions.