The answer to the question in my title is obvious, isn't it?: Of course Congress can do so. According
to Donald Trump and his (personal) attorneys, however, the correct answer is “no.” And in a series of pending cases involving
challenges to congressional efforts to obtain the President’s financial and tax
records, they’re urging the courts to hold that Congress’s oversight and
regulatory authorities simply don't extend to investigating the wrongdoing,
foreign influence over, and possible conflicts of interest of, the President of
the United States.
It’s hard to
exaggerate just how profound a challenge this is to our longstanding system of
checks and balances. Yet these cases, and Trump's arguments in them, have mostly flown under the radar: They haven't received much attention in the press or among legal observers. Perhaps that's as it should be: After all, if the arguments are as extreme as I'm suggesting, maybe there's nothing much to worry about. The Trump team is deadly
serious, however; the Department of Justice might come
to its aid; and it’s possible Trump’s lawyers will find a receptive audience
among at least some Supreme Court Justices. Therefore I thought it might be worthwhile to unpack those arguments a bit in this post.
Background on Congress's Oversight Authority and "Informing" Function
For virtually
all of its history, going back at least to the 1792 House investigation of the St.
Clair expedition, Congress has exercised its “oversight” powers to investigate the executive branch—not so much to assist the legislature
in the shaping or enactment of federal laws (although that’s certainly one
common result of such oversight), but rather, to inform itself, and the public, of how the federal government is working,
and of any possible problems in its operation, including corruption,
malfeasance, poor judgment, inefficiencies, foreign influence, etc.
Woodrow
Wilson penned the canonical articulation of this congressional “informing”
function and its virtues in his 1885 book, Congressional
Government:
It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.
As the Supreme
Court has noted (citing Wilson), “[f]rom the earliest times in its history, the Congress has
assiduously performed an ‘informing function’ of this nature.” Watkins v. United States, 354 U.S. 178,
200 n.33 (1957). We’re all very familiar
with it—indeed, you’ve probably seen it in action far more frequently than
you’ve witnessed hearings designed to help craft new legislation. Think of Watergate, and Whitewater, and Iran-Contra,
and Benghazi, and “Fast and Furious,” and (much earlier) the Teapot Dome
Scandal—and many more. Indeed, many Americans likely assume, based simply on what
they’ve witnessed on television, that investigating the executive branch is the
primary thing Congress does—and in an
era where Congress enacts almost no important legislation, it’s perhaps the
most important congressional function, too.
As Wilson’s famous
description suggests, the function of informing Congress and the public about
the workings—and possible dysfunctions—of the government and its officers plays
at least two critical roles in our system:
First, and most
directly, it facilitates the ability of a “self-governing people” (Wilson) to understand
how their government is operating, which, among other things, gives the people
the knowledge necessary to decide how to shape and regulate that government—and
to decide who the officers of the government ought to be going forward. See
Watkins, 354 U.S. at 200 (“The public is, of course, entitled to be
informed concerning the workings of its government.”).
Secondly,
congressional inquiry and oversight is an absolutely critical deterrent to
executive wrongdoing and maladministration—in Wilson’s words, “discussed and
interrogated administration is the only pure and efficient administration.” As Professor Bill Marshall—a former Deputy
White House Counsel—has written, “Congress’s power to investigate plays a
critical role in the checks and balances of U.S. democracy. . . . Without
some outside check on the Executive Branch, there would be little to discourage
unscrupulous officials from acting in their own, and not in the nation’s, best
interests.”
It’s difficult
to overstate the practical significance of this second, “checks and balances”
function of congressional oversight: As
virtually anyone who’s worked in the executive branch will attest, the prospect
(or threat) of having to explain one’s self, and one’s decisions, to a
congressional chair or staff, or in congressional hearings under the harsh
glare of network lights, has a significant impact on how one performs her work
as an official--it tempers any impulses to overstep, cut corners, or disregard
norms designed to protect the public interest. Not surprisingly,
then, the Supreme Court has described Congress’s “informing function”
as “indispensable,” and admonished that it’s “not to be minimized.” United
States v. Rumely, 345 U.S. 41, 43 (1953).
The
Current Challenges
More than any
other president, Donald Trump has extensive financial holdings; is obsessed
with promoting and protecting his own wealth and reputation regardless of the
national interest; has been unwilling to disclose details of his financial affairs
and entanglements; and has a predilection for cozying up to foreign autocrats
from nations that are hostile to the United States—one of which just so happens
to have made elaborate efforts to distort the American electoral system in
order to help get Trump elected.
Naturally,
then, the House of Representatives is interested in learning about Trump’s
finances, his possible conflicts of interest, whether he’s complied with the
laws designed to prevent such conflicts (including the Foreign Emoluments
Clause of the Constitution), and the ways, if any, in which the exercise of his
duties on behalf of the nation might be compromised by his relations with
foreign entities and nations, or by his other financial entanglements. Accordingly, House committees have subpoenaed Trump's accountants (Mazars, Inc.) and his banks (Deutsche
Bank and Capital One) to produce Trump’s own (and his family’s and businesses’)
financial records within their custody, and the Ways and Means Committee has asked
(and eventually subpoenaed) the Treasury Department to turn over Trump’s federal tax
records.
Trump's accountants and banks are not objecting to the House subpoenas, but Trump himself, in his personal capacity, has sued to prevent them from sharing the records with the House. Meanwhile, Treasury Secretary Mnuchin has refused to share Trump’s tax records with the Ways and Means Committee, despite a statute, 26 U.S.C. § 6103(f), requiring that the Department “shall furnish” the Committee with “any” requested tax return information, and despite a Ways and Means Committee subpoena for the information.
It’s important
to stress at the outset that Trump is not
asserting executive privilege in any of these cases. Instead, the fundamental theory Trump (and Mnuchin) are relying upon is simply that Congress allegedly lacks any legitimate
interest in obtaining the information about the President.
And a fourth case filed last week, concerning
Trump’s New York state taxes, demonstrates
just how extreme this argument is.
Earlier this month the New York legislature passed, and Governor Cuomo signed,
the Tax Returns Released Under Specific Terms (TRUST) Act. The TRUST Act requires the New York
Commissioner of Taxation and Finance to furnish a congressional tax committee,
including the House Ways and Means Committee, with the New York State tax
returns or reports of various federal officials (including the President), if,
inter alia, the Chair of the congressional committee requests such reports or
returns, certifies that the request is related to, and in furtherance of, a
“legitimate task of the Congress,” and certifies that the committee already requested the U.S. Secretary of the
Treasury to furnish “related federal returns or return information, pursuant to
26 U.S.C. Section 6103(f).” Accordingly,
if the House Ways and Means
Chairman makes a request with the requisite certifications—something he has not
yet done—then the New York Tax Commissioner will be required to furnish Trump’s New York state
tax returns and records to the House Ways and Means Committee.
In response to the
enactment of this new New York law, Trump has filed suit
seeking an injunction that would prohibit the Ways and Means Chairman from
simply requesting the New York
government to furnish Trump’s state tax returns and from reviewing or using such tax information if New York voluntarily tenders it
to the Committee.
According to
Trump, then, it’s not simply that Congress lacks the power to compel disclosure of information
concerning the President, such as through a subpoena; because Congress
allegedly has no legitimate investigatory interest, the House may not even ask a party to disclose such information
voluntarily, or receive such
information from a willing third party. (As Judge Millett put the point during the oral argument in Mazars, the logic of Trump's argument is that the House Oversight Committee couldn't even send a "polite letter" to the President asking for information.)
I hope that
sounds deeply alarming and counterintuitive to you. Because it is.
In the Mazars
case in the U.S. District Court for the District of Columbia, Judge Mehta rejected Trump’s argument and entered
judgment in favor of the House Committee on Oversight and Reform. In the Deutsche Bank/Capital One case in the U.S. District Court for the Southern District of New York, Judge Ramos denied Trump’s motion for a
preliminary injunction that would stop the banks from turning over Trump’s records.
Both of these cases
are currently on appeal. A panel of the
U.S. Court of Appeals for the D.C. Circuit (Tatel, Millett and Rao, JJ.) heard
argument on July 12 in the Mazars case. The
Deutsche Bank/Capital One case in the U.S. Court of Appeals for the Second
Circuit will be argued on August 23.
Meanwhile, the House Ways and Means
Committee has sued the Treasury Department in the District Court for the
District of Columbia, seeking an injunction that would require the IRS to furnish
the tax records the committee subpoenaed and requested pursuant to § 6103(f). And, as noted above, Trump himself has sued to prohibit the Ways and Means Committee from requesting or receiving Trump’s
state tax returns from New York. The district
court judges (McFadden and Nichols, respectively) have not yet considered the
merits of these latter two cases about the Trump tax returns.
Trump’s
Arguments
Trump’s
argument that the House lacks any legitimate oversight interest or
investigative authority to seek or obtain the President's financial and tax records can be found in each of the briefs his lawyers, led by William Consovoy, have
filed in the Mazars and Deutsche Bank cases. If you’d like to get a flavor of them, take a
look at their opening
brief in the Mazars case.[1]
There
are two basic variations on the argument:
The first is about Congress’s investigative authority generally, and the
second is about purported limits on Congress’s oversight authority when it
comes to the President, in
particular.
1. The
Argument that Congress Can’t Investigate Whether the Law Has Been Violated
One
of the reasons the House committees are seeking the financial information in
question (but hardly the only reason) is to ascertain whether Trump has
violated, or is violating, the law—including both statutory requirements and
prohibitions (such as the obligations imposed by the Ethics and Government Act
and prohibitions on fraud) and constitutional duties (e.g., Trump’s Take Care
obligation and his oath) and limits (e.g., the prohibition on receiving gifts
and emoluments from foreign states or officials).
According
to Trump’s lawyers, the House doesn’t have any such power to investigate whether
federal law has been violated. Really. They contend that that’s a form of “law
enforcement,” and Congress doesn’t have the power to enforce the law.
To be sure, although Congress's investigative authority is broad, it can be abused (think of the McCarthy era), especially when it’s directed to private parties.
For that reason, the Supreme Court has warned that Congress may not simply “expose
for the sake of exposure,” Watkins v.
United States, 354 U.S. 178, 200 (1957), and has been appropriately attentive
to individuals’ First and Fifth Amendment rights when they're required to provide testimony or evidence to Congress. Moreover, and with particular respect to Trump's "law enforcement" argument, Chief Justice Warren explained
in Watkins that Congress isn’t “a law enforcement or trial agency,” and
“[i]nvestigations conducted solely . . . to ‘punish’ those investigated are
indefensible.” Id. at 187.
That doesn’t
mean, however, that Congress can’t investigate whether federal officials have violated the law. As the Chief Justice wrote in that same
paragraph, id., it’s a “basic premise[] on which there is general agreement” that
Congress’s power to conduct investigations “comprehends probes into departments
of the Federal Government to expose corruption, inefficiency or waste” (a
function that Warren enumerated as distinct from making “inquiries concerning
the administration of existing laws, as well as proposed or possibly needed
statutes”).
When Congress
investigates whether officials have violated the law, it doesn’t issue charges
that trigger further consequences, nor does it put the officials on trial (outside the
context of an impeachment trial), nor adjudicate their guilt or innocence, nor deprive
them of liberty, fine them, or otherwise impose punishment. Those are
“law enforcement” functions that belong to the other branches (and
juries). But legislative inquiries such
as those at issue in the pending Trump cases don’t involve any of those functions. The House Committees are no more engaged in
“law enforcement” when they investigate whether Donald Trump has broken the law
than the New York Times and Washington Post are when they conduct the
very same sorts of investigative inquiries. Simply stated, the fact that a House
investigation may reveal unlawful conduct by government officials does not turn
that investigation into an impermissible “law enforcement activity.” See
McGrain v. Daugherty, 273 U.S. 135, 179-80 (1927) (“Nor do we think it a
valid objection to the investigation that it might possibly disclose crime or
wrongdoing on [the Attorney General’s] part.”).[2]
This first
argument, then, would be frivolous—and would call into question centuries of
congressional investigations of wrongdoing by government officials—even if the
only function of the House investigations in question were to ascertain whether
Donald Trump has violated the law in the past.
But of course
the ongoing House investigations are not solely concerned with that
backwards-looking question: They are also, and much more importantly, designed
to discover whether Trump is currently subject
to conflicts of interest, or otherwise compromised, in ways that might affect
his conduct as President and his ability or willingness to comply with his
constitutional duty to act on behalf of the nation’s best interests (rather
than his own) going forward.
Not
surprisingly, then, Trump’s counsel do not rely exclusively upon their flawed “Congress
is engaged in impermissible law enforcement” argument. Instead, they ultimately fall back on an even more
alarming, secondary argument—one that’s specific to the President, in
particular.
2. The
Argument that Congress May Not Investigate the President Because Congress May
Not Enact Legislation Regarding the President
The Supreme Court has occasionally stated
(although it’s never been a ground of any decision) that Congress’s “informing”
function, and its investigative authority more broadly, must “concern[]
a subject on which ‘legislation could
be had.’” Eastland
v. U.S. Servicemen’s Fund, 421 U.S.
491, 506 (1975) (quoting McGrain, 273 U.S. at 177); see also Quinn v. United States, 349
U.S. 155, 161 (1955) (stating in dictum that the investigation power doesn’t
extend “to an area in which Congress is forbidden to
legislate”). (Trump’s briefs occasionally
suggest that the investigation in question must have a “tie” to proposed legislation,
or that consideration of such legislation must be the purpose of the
investigation. The Court has never
suggested that Congress’s authority is so limited, however: The most the Court has suggested is that Congress's investigation must be “in an area” where it could
legislate—concerning a subject “on which ‘legislation could be had.’”)
Trump’s lawyers eventually concede that
this means Congress may “inquire into and publicize corruption,
maladministration or inefficiency in agencies
of the Government” (Watkins)—after
all, Congress can and does regulate the agencies and the officers who fill
agency offices, and therefore it may investigate their possible wrongdoing and malfeasance, as well.
The Trump team denies,
however, that Congress has the same power to investigate the President. Why? Because, they argue, whereas Congress creates the offices filled by most other
officers, the Constitution itself establishes the office of the President. And, according to Trump’s lawyers, whereas Congress
can enact laws to regulate the offices of its own creation, it may not regulate the offices the Constitution itself
establishes (i.e., the offices of President, Vice President and Chief Justice of the United States). And if there’s no
regulatory power, it follows that there’s no investigatory power, either.
Yes, this would mean—and Trump’s lawyers make no bones
about it—that Congress lacks any constitutional power to impose conflict-of-interest regulations with respect to the President, or even to
impose any financial reporting requirements on him. “[A] sitting President’s finances and the conduct of foreign
companies, individuals, and governments [with respect to the President,]” argue
Trump’s lawyers in their recent reply
brief in Deutsche Bank, are
“area[s] in which Congress is [constitutionally] forbidden to legislate.” Among other things, this would mean that central
provisions of the Ethics in Government Act are
unconstitutional as applied to the President, even though every President has
complied with them for many years.
That’s not merely an implication of Trump attorney William
Consovoy’s argument—it’s an express centerpiece (see Mazars
Opening Br. at 44): “The provisions of the Ethics in Government
Act that require the President to disclose his finances to Congress once
he is in office are unconstitutional, so any effort to ‘strengthen[]’ or
‘enhance[]’ them is too.” Nor, on this
view, could Congress enact any laws establishing when and under what
circumstances a President can or cannot receive foreign emoluments or gifts
(something Congress has occasionally done).
And I suppose it would also follow a
fortiori (although the briefs don’t get into this) that Congress lacks any
power to regulate or limit the President’s exercise of the authorities the
Constitution confers upon him, such as his power to command the military in war
(shades of John Yoo’s arguments about Congress’s inability to prohibit the
President from ordering torture or warrantless surveillance), or his authority to authorize covert actions.
As I hope most Balkinization readers will notice right away, there are at least
three significant problems with this argument.
First, it would mean that all of the
famous congressional investigations of Presidents were unconstitutional—even though
virtually no one during those proceedings thought to make such an
argument. A couple of high-profile
examples should suffice to illustrate the point:
In 1973, the Senate established the Select
Committee on Presidential Campaign Activities—the famous “Sam Ervin” Committee—to
investigate the Watergate break-in and any subsequent cover-up of criminal activity,
as well as “all other illegal, improper, or unethical conduct occurring during
the presidential election of 1972, including political espionage and campaign
finance practices.” Of course, the Ervin
Committee investigated President Nixon’s
possible wrongdoing, in particular.
Recall Senator Howard Baker’s famous question: “What did the President know, and when did he
know it?” (This was more than a year
before any impeachment proceedings.) As
far as I know, no one at the time suggested that Congress lacked the constitutional authority to conduct that investigation.
In 1987, Congress conducted the Iran-Contra
investigation, which concerned, among other things, whether President Reagan
was responsible for violations of the Boland Amendment and other laws. A group of Representatives in Congress, led
by Richard Cheney and his staffer David Addington, famously issued a “MinorityReport” to accompany the Iran-Contra Committee’s report, in which they raised
constitutional doubts about the Boland restrictions. If memory serves, however, even that (very)
high-water example of pro-executive constitutional theory did not suggest that
the congressional investigation itself was invalid.
Judge Mehta was right to be dubious that these and other high-profile investigations of the President were
unconstitutional. “It is simply
not fathomable,” he
wrote (p.24), “that a Constitution that grants Congress the power to remove
a President for reasons including criminal behavior would deny Congress the
power to investigate him for unlawful conduct—past or present—even without
formally opening an impeachment inquiry.”
Invoking both the 1973 Watergate investigation and the 1995 Special
Committee investigation of the Whitewater Development Corporation, in particular, as evidence that “Congress plainly views itself as having sweeping authority to
investigate illegal conduct of a President, before and after taking office,” Judge
Mehta understandably concluded that he was “not prepared to roll back the tide
of history.”
Second, if
Trump were correct that Congress lacks the power to investigate a president at
all, it would follow, I suppose, that there’d rarely if ever be any need to adjudicate
claims of executive privilege involving congressional efforts to discover
presidential communications: If the
whole subject of the President’s conduct is one that’s off limits to Congress,
what difference does privilege make? Yet
in all the many cases in which the political branches of Congress have clashed
about questions of executive privilege, I’m not aware that the Executive has
ever argued that Congress categorically lacks authority to investigate the
President.
Third, and most
fundamentally, of course Congress can
enact legislation to regulate the President, even though the legislature itself
did not establish his constitutional office.
It can enact laws to regulate the conditions under which he may accept
foreign emoluments; to require disclosure of his finances (such as under the
Ethics in Government Act); and to require him to divest himself of certain
assets that would create conflicts of interest with his constitutional duties. It may even enact laws requiring the
President to preserve records created during his service in office in order to,
inter alia, protect “the American
people’s ability to reconstruct and come to terms with their history.” Nixon
v. Administrator, 433 U.S. 425, 452-53 (1977); accord id. at 478 (noting that “Congress’ interest in and expansive
authority to act in preservation of monuments and records of historical value
to our national heritage are fully established”). And, more broadly, although there are
certainly some limits on how Congress may regulate the President’s exercise of
his constitutional authorities, the legislature nevertheless has the power to
“make all Laws which shall be necessary and proper for carrying into Execution
. . . all . . . vested by this
Constitution in the Government of the United States, or in any Department
or Officer thereof,” including the Office of the President. That’s why, for example, Congress has
historically enacted
numerous laws regulating the President’s constitutional authority to
command the armed and naval forces, including in the prosecution of wars, and extensively regulates (and oversees) his superintendence of the Intelligence Community.
All of this
constitutional boilerplate would be called into question if the Supreme Court
were to accept Trump’s argument.
What Does the Department
of Justice Think?
At the recent
oral argument in Mazars, Judge Rao
asked Trump’s lawyer, William Consovoy, a very good question: If Consovoy were right that Congress lacks any
regulatory and investigative authority concerning the President, why hasn’t the
Department of Justice filed a brief in the case opposing such an
unconstitutional intrusion upon presidential prerogatives? (Consovoy responded that he didn’t know why
DOJ had not participated.)
The court of
appeals subsequently invited DOJ to file a brief, which is due next Thursday
(August 8). And in the Deutsche Bank case, the U.S. Court of
Appeals for the Second Circuit has extended a similar invitation—DOJ’s deadline
for filing in that case is August 19.
What will the
Department of Justice say? It’s too soon
to tell, of course. For the reasons I’ve
described above, I certainly hope the
Department rejects the extreme arguments Trump’s lawyers have tendered. But one recent development gives some reason
for concern.
In the case of the
Ways and Means Committee’s request for Trump’s federal tax returns, Treasury
Secretary Mnuchin asked the Office of Legal Counsel whether he was required to
furnish those returns to the Committee.
OLC issued an
opinion on June 13 concluding that the Secretary does not have to furnish
the records. OLC’s reasoning was that,
as a constitutional matter, the Committee may request information
from the Executive Branch only to further a legitimate legislative purpose, and
the principal purpose articulated by the Committee in this case—namely, to assess the extent
to which the IRS audits and enforces the federal tax laws against a President”—is
“pretextual,” and “blinks reality” because “[n]o one could reasonably believe
that the Committee seeks six years of President Trump’s tax returns because of
a newly discovered interest in legislating on the presidential-audit process.”
That
conclusion—as well as OLC’s antecedent view that the Departments of
Treasury and Justice, unlike the courts, may assess the bona fides of a congressional committee's asserted interest—is certainly open to debate. (In its new suit against the Treasury
Secretary, the Ways and Means Committee continues to emphasize its stated purpose of
assessing the IRS’s auditing of presidential returns. This is, in my humble opinion, a mistake: Even if oversight of the IRS is
one of the reasons the Committee is
seeking the information, Ways and Means should be more forthright about
the much more significant and pressing reasons that Congress needs the tax returns—namely, to assess whether Trump has any possible conflicts of
interest or is subject to foreign influence.
Those rationales are far more compelling, not less, than those the Committee is citing, and the scope and nature of the Committee’s request are much better
explained by those rationales.)
For present purposes, however, OLC’s opinion
is especially problematic because of two other things contained in it.
First, OLC suggested
(pp. 18-19) that Congress’s “informing function” encompasses “merely”
Congress’s power to inform itself of
“facts needed to carry out legislative affairs,” and does not give Congress any
authority to inform the public of
information concerning its public officials. In support of this counterintuitive notion,
OLC selectively cited from an excerpt of the Court’s 1979 decision in Hutchinson v. Proxmire, 443 U.S. 111.
Even if OLC were correct that Congress's informing function doesn't extend to informing the public of vital information about federal officials, that would only raise a question about the Ways and Means Committee's ability to disclose information from Trump's tax returns to the public--it wouldn't affect the Committee's authority to itself obtain and review those returns. For what it's worth, however, OLC's description of the "informing" function relies upon a distorted reading of the Court’s
opinion in Hutchinson. There, the Court merely held that Speech and Debate Clause didn't immunize an individual member of Congress from liability when he
issued a press release defaming a scholar’s research as “nonsense.” “[W]ide-ranging inquiries by individual
Members on subjects of their choice,” explained the Court, are not part of what Wilson described as Congress's “informing function.” But in
so doing, the Court embraced Wilson’s
understanding that the legitimate "informing function" of Congress is critically
tied to the need to educate the People of
the ways in which their elected and appointed officials are acting. The Court quoted with approval Wilson’s
explanation that “[u]nless Congress have and use every means of acquainting
itself with the acts and the disposition of the administrative agents of the
government, the country must be helpless
to learn how it is being served; and unless Congress both scrutinize these
things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the
very affairs which it is most important that it should understand and direct.” The Court even quoted approvingly Wilson’s
famous line that “the only really self-governing people is that people which
discusses and interrogates its administration.”
Second, and even more
troublingly, in its June opinion (principally in footnote 19) OLC identified
many of what it considers to be the genuine
reasons the House is seeking
Trump’s tax returns—predominantly, reasons related to foreign influence and
conflicts of interest—and thereby suggested, at least implicitly, that those reasons
are not constitutionally sufficient
justifications for Congress’s inquiry.
It cited, for example, the following statements made by House members before
the Democrats took control of the House in 2019:
• Then-Ranking Member (now Chairman) Neal’s
statement that the tax returns would “help protect against violations of the
Emoluments Clause of the Constitution and conflicts of interest, including with
foreign adversaries such as Russia.”
• Representative Pascrell’s question about why
Republican members in the majority in the previous Congress wouldn’t “use their
authority in the law to provide oversight and make sure the president and his
family are not hiding financial ties that could cause conflicts in the
decision-making.”
• Statements of Representatives Pascrell and
Eshoo that “disclosure of the President’s tax returns could help those
investigating Russian influence in the 2016 election.”
• A statement by Reps. Neal and Pascrell that
“[t]ax returns provide the clearest picture of a president’s financial health”
and will allow the public “to gain a more complete understanding of how tax reform will benefit President Trump
and his vast business empire.”
• Then-Minority Leader Pelosi’s statements
that “[w]e think [the returns] will show us some connection that will be useful
in the investigation of what do the Russians have on Donald Trump politically,
personally, financially,” and that “there’s concerns about recent actions by
the Chinese government, in relation to the Trump Organization.”
• Representative Jeffries’s statement that “[t]he
release of the President’s tax returns will help the American people better
understand the extent of Trump’s financial ties to Putin’s Russia.”
If these are, as OLC suggests, the actual (or at least among the primary) reasons why the House is
seeking Trump’s tax information—and obviously they are—then how could OLC have
concluded (p.17) that “the Committee lacked a legitimate legislative purpose” for subpoenaing those records unless OLC shared Trump’s personal lawyers’ view that Congress is powerless to
inquire into any financial
arrangements that might threaten to compromise the President’s duty of
undivided loyalty to the public interest?
I hope DOJ doesn’t make such a radical argument when it files its briefs in the
Mazars and Deutsche Bank cases in the coming weeks. But we shall see.
[1] “The House lacks authority to
investigate/legislate” argument is Trump’s principal assertion in both cases,
but he makes other arguments, as well, such as that the House hasn’t given the
Oversight Committee a sufficiently clear authorization to investigate Trump (in
the Mazars case); that the Right to
Financial Privacy Act limits the records Deutsche Bank and Capital One may
share with the committees in that case; and that the subpoenas are overbroad in
light of the committees’ asserted interests.
I don’t discuss these other arguments in this post, except to note here that the House's passage of H. Res. 507 last Wednesday should eliminate any possible question of the whether the House has plainly authorized the committees in question to take the actions they have to obtain the President's tax and financial information.
[2]
Trump’s lawyers identify only one case in which a court has suggested that a
congressional committee overstepped its bounds by engaging in an alleged “law
enforcement” function. In United States v. Icardi, 140 F. Supp.
383 (D.D.C 1956), the defendant was charged with having committed perjury in his sworn testimony
before a congressional subcommittee. The
district court dismissed the indictment, in large measure based upon the
judge’s conclusion that because the subcommittee already had all the information
it needed about the subject matter, it must have elicited answers from the witness
under oath merely in order to spring a perjury trap. Id.
at 389. In its discussion of the case,
the court also criticized one aspect of the subcommittee’s published report,
which had stated that there was “probable cause” for charging Icardi and another
individual with murder of a military officer and embezzlement but that they
weren’t subject to prosecution under the Uniform Code of Military Justice. “The use of this language,” wrote the court, “indicates
the functioning of the subcommittee as a committing magistrate.” Id. at
387. The court added that the
subcommittee report’s “adjudication of crime” was “invalid[].” Id. at
388. There’s reason to doubt whether the
judge in Icardi was right to
characterize the subcommittee’s judgments as an “adjudication” of crime, or as
equivalent to functioning “as a committing magistrate.” After all, the subcommittee’s
conclusions—unlike those of a grand jury—did not and could not trigger a
criminal trial, nor suffice to “adjudicate” Icardi’s guilt. In any event, Icardi does not call into question the Supreme Court’s repeated
recognition of Congress’s power to investigate wrongdoing by federal government
officials.