Kilbourn and Chapman and Rao. Oh my.

As it happens, the decision in Trump v. Mazars USA (D.C. Cir. Oct. 11, 2019) coincides nicely with our discussion of the congressional contempt power. Although Mazars involved the validity of a congressional subpoena, not the exercise of the contempt power per se, the cases we are about to encounter are quite relevant to an analysis of the D.C. Circuit’s opinion, particularly with regard to Judge Rao’s remarkable dissent.

Kilbourn v. Thompson

Following its decision in Anderson v. Dunn, 19 U.S. 204 (1821), the Supreme Court next had occasion to consider the contempt power in Kilbourn v. Thompson, 103 U.S. 168 (1880). Kilbourn arose out of a House special committee’s investigation into the bankruptcy of Jay Cooke & Co., a private firm with large investments in a somewhat shady “real estate pool”; the House resolution  establishing the committee recited that the government of the United States was a creditor of the bankrupt firm as the result of “improvident deposits by the Secretary of the Navy” of public moneys at the firm. 103 U.S. at 171. The resolution further recited that the bankruptcy trustee  “has recently made a settlement of the interest of the estate . . . to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the government of the United States, and . . . the courts are now powerless by reason of said settlement to afford adequate redress to said creditors.” Id.

Hallet Kilbourn, a real estate broker with knowledge of the private investments in question, was subpoenaed by the House to provide testimony and documents regarding the matter. He declined to do so, denying “the right of the House to investigate private business arbitrarily,” but stated that “if either the committee or the House would assert that the production of his private papers, or the revelation of his private business, would promote any public interest, or if any private individual would assert on oath that the papers asked for would lead to the detection of corruption, he would respond freely to all demands for information or papers.” 2 Hinds’ Precedents § 1609.

The House then ordered that the Speaker issue an arrest warrant for Kilbourn, pursuant to which the recalcitrant witness was brought before the bar of the House. When he continued to refuse to answer, the House held him in contempt and ordered the Sergeant-at-Arms to keep him in custody until such time as he was willing to provide the information demanded. 103 U.S. at 175; 2 Hinds’ Precedents § 1609.

While Kilbourn was in custody, he was indicted by a federal grand jury under the criminal contempt of Congress statute. This precipitated a conflict between the legislative branch and the executive/judicial branches when the U.S. marshal, with a warrant from the D.C. court, attempted to take custody of Kilbourn from the Sergeant-at-Arms. 2 Hinds’ Precedents § 1609. The Sergeant-at-Arms refused, and the House actually considered a Blackstonian resolution that would have asserted that the House, not the courts, had the ultimate right to determine the disposition of the prisoner. Id. The House rejected this resolution, however, and authorized the Sergeant-at-Arms to obey the court’s writ of habeas corpus. Id. The court eventually determined that Kilbourn should be released by the Sergeant-at-Arms and taken into custody by the U.S. marshal. Id.

Kilbourn subsequently sued the House for false imprisonment. Perhaps due to the prior tension with the executive branch, the House was represented by private counsel in the case. See Representation of Congress and Congressional Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong., 2d sess. 511-12 (1974-75). For whatever reason, the House’s position was much less warmly received when it reached the Supreme Court than it had been in Anderson.

While the Anderson Court embraced the key arguments of the “pro-contempt” side of congressional debates (particularly the argument that the contempt power was an absolute necessity to protect the functioning of Congress), the Kilbourn Court adopts many of the principal arguments of congressional opponents of contempt. It begins with the observation that Congress’s powers are “dependent solely on the Constitution,” “either expressly or by fair implication.” 103 U.S. at 182. As no express power to punish contempts is granted, “advocates of this power have, therefore, resorted to an implication of its existence founded on two principal arguments . . . (1) its exercise by the House of Commons of England, from which country we, it is said, have derived our system of parliamentary law, and (2) the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the power the Constitution has conferred on them.” Id. at 182-83.

The Kilbourn Court firmly rejected the first of these rationales, finding that the  authority to exercise the contempt power in Parliament rested in the fact that the two house of Parliament were “courts of judicature originally [and] have retained so much of that power as enables them, like any other court, to punish for a contempt of [their] privileges.” Id. at 184. This unique history having no application to Congress, the Court was “of opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament, nor from the adjudged cases in which the English courts have upheld these practices.” 103 U.S. at 189.

An important implication of this conclusion was that neither house of Congress was a court of general jurisdiction, nor could they claim a “general power of punishing for contempt” such that “by the mere act of asserting a person to be guilty of contempt, they thereby establish their right to fine and imprison him, beyond the power of any court or any other tribunal whatsoever to inquire into the grounds on which the order was made.” 103 U.S. at 197. In other words, the Court found that the Blackstonian concept of each house being the judge of its own privileges did not (generally) apply to Congress.

There is, however, an exception to this general rule. As Kilbourn makes clear, the Constitution does vest each house of Congress with certain judicial functions, in the exercise of which it possesses the same contempt power as any court:

The House of Representatives has the sole right to impeach officers of the government, and the Senate to try them. Where the question of such impeachment is before either body acting in its appropriate sphere on that subject, we see no reason to doubt the right to compel the attendance of witnesses and their answer to proper questions, in the same manner and by the use of the same means that courts of justice can in like cases.

Whether the power of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that no person can be punished for contumacy as a witness before either House unless his testimony is required in a matter into which that House has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the general power of making inquiry into the private affairs of the citizen.

103 U.S. at 190 (emphasis added).

The clear import of this language is that once it is established the House is performing a judicial function such as impeachment, it is empowered to proceed against contumacious witnesses by fine and imprisonment in the same manner as any court. A less clear but fair inference is that the House’s determinations of contempt and punishment pursuant to its impeachment power would be conclusive and not subject to judicial review.

To be sure, under Kilbourn the judiciary must determine, as an initial matter, whether the House is exercising a judicial function at all. Thus, the Court found that the resolution authorizing the investigation of Jay Cooke & Co., although referring to the “improvidence” of the secretary of the navy, gave no indication of an intent to exercise the power of impeachment. See 103 U.S. at 193 (“If, indeed, any purpose had been avowed to impeach the secretary, the whole aspect of the case would have changed.”). Furthermore, there was no indication that the matters being investigated were in the nature of potential high crimes and misdemeanors. Id. 

The Kilbourn Court did not answer the question whether the House had a separate power to punish contempt in support of its legislative function (i.e., for matters outside the scope of judicial functions such as impeachment). Although its opinion suggests it was skeptical that a legislative body needed any such power (see particularly its discussion at 103 U.S. at 187-89), it found it unnecessary to decide the question in the case before it. 103 U.S. at 189. Instead, it found that the investigation pursuant to which Kilbourn was subpoenaed was itself improper because “the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was, in its nature, clearly judicial.” 103 U.S. at 192.

The Kilbourn decision has been sharply criticized, in part because the subject of the House’s investigation in that case appears to be, at least from a modern perspective, a perfectly reasonable subject for congressional oversight. In fairness to the Kilbourn Court, however, the House resolution and the record before it did not appear to reflect oversight objectives, such as inquiring into the activities of a government department, the operation of current laws, or the need for new laws. Instead, the purpose of the investigation, as framed by the House itself, seemed to be to investigate private affairs simply for exposing suspected wrongdoing (to “investigate private business arbitrarily,” as Kilbourn protested to the House), to somehow influence ongoing bankruptcy proceedings in federal court, or to otherwise advantage the U.S. government’s claims as a creditor. See 103 U.S. at 192-96.  Based on this record, the Court found the House lacked authority to “enter upon this investigation into the private affairs of individuals who hold no office under the government.” Id. at 195.

Here it should be noted that the case came to the Supreme Court on the House’s motion to dismiss on the pleadings, and the record before the Court appears to have consisted of little more than the resolution and other formal actions approved by the House.

The Kilbourn decision can be difficult to understand because it discusses judicial functions in at least three different senses. First, it discusses the distinction between the House’s proper judicial functions (such as impeachment) and its legislative functions. Second, the exercise of the contempt power is itself a judicial function as the House “tries” the contumacious individual and delivers a verdict and sentence. Third, according to the Court, the House’s investigation of Jay Cooke & Co. was an improper attempt to exercise a judicial function that could only be legitimately performed by an actual court. It is important to distinguish these three aspects of the case.

It is interesting to wonder whether the Court’s decision would have been different had Kilbourn’s case come to it through an appeal from a conviction for violating the contempt of Congress statute. In theory, the answer should be no because the Court found that the underlying investigation, not merely the contempt proceeding, was beyond the House’s authority. In practice, though, if there had been executive and judicial involvement in Kilbourn’s punishment it might have ameliorated the Court’s concerns that the House was transgressing on the judicial sphere.

In Re Chapman

The Supreme Court’s next occasion to consider contempt of Congress was also its first opportunity to address a criminal conviction for contempt of Congress under the statute enacted in 1857. See In re Chapman, 166 U.S.  661 (1897). This case in some ways resembles the hypothetical just mentioned with regard to the Kilbourn case.

Chapman arose from a Senate investigation into allegations that certain senators had traded in sugar stocks at a time when the value of those stocks would be significantly affected by legislation then pending before the Senate. 166 U.S. at 663. The Senate established a special committee to investigate the allegations, and the committee summoned Elverton Chapman, a stock broker, and questioned him as to whether his firm had bought or sold any sugar stocks during the relevant time for or on behalf of any U.S. senator. See 2 Hinds’ Precedents § 1613. Chapman refused to answer and was prosecuted for violating the contempt of Congress statute.

Chapman appealed his indictment to the court of appeals for the District of Columbia, contending among other things that the Senate lacked the authority to conduct the investigation under Kilbourn. The court of appeals acknowledged “great difficulty in clearly and distinctly marking the boundaries  within which either House of Congress may act with coercive power to compel the disclosure of facts deemed important to it and the rights of the citizen to exemption from inquiry into his private affairs.” 2 Hinds’ Precedents § 1613. It further noted that Kilbourn established “that while within certain limits and for certain purposes either House of Congress may, where the examination of witnesses and the production of papers are necessary to the performance of its legal and constitutional functions, fine and imprison a contumacious witness, yet the Constitution invests neither House with any general power to punish for contempt.” 2 Hinds’ Precedents § 1613.

The question before the court was whether this was a matter in which the Senate was entitled to “compel the disclosure of fact deemed important to it.” Chapman argued that the Senate resolution, like the House resolution in Kilbourn, failed to expressly invoke any of its judicial authorities, such as the power to discipline or expel members, and was therefore invalid. 2 Hinds’ Precedents § 1613. The court of appeals rejected this argument, noting that the nature of the allegations being investigated were such that “if found to be true, [would] subject members of the body to reprimand and expulsion, and other guilty parties to punishment, at the hands of the Senate.” Id. It refused to  impose any “technical formality” on the Senate, to deny the Senate the right to make “preliminary investigation” to determine what the facts were, or to assume that the investigation was intended “as a mere idle, prying, inquisitive proceeding, without ultimate aim or object.” Id.

When the matter reached the Supreme Court, it took an approach similar to that of the court of appeals. It held the case was “wholly different” from Kilbourn, where the attempt was to “make inquiry into the private affairs of a citizen” and “a mere matter of private concern.” 166 U.S. at 668. By contrast, here “[s]pecific charges publicly made against senators had been brought to the attention of the Senate.” Id. Furthermore:

Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry because the preamble and resolutions did not specify that the proceedings were taken for the purpose of censure or expulsion if certain facts were disclosed by the investigation. The matter was within the range of the constitutional powers of the Senate. The resolutions adequately indicated that the transactions referred to were deemed by the Senate reprehensible and deserving of condemnation and punishment. The right to expel extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.

*     *     *

We cannot assume on this record that the action of the Senate was without a legitimate object, and so encroach upon the province of that body. Indeed, we think it affirmatively appears that the Senate was acting within its right, and it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded.

166 U.S. at 669-70.

Chapman shows that as long as a matter is “within the range” of the legislative body’s constitutional (i.e., judicial) powers, it may properly investigate without expressly invoking those powers or declaring an intent to move to a more formal stage (eg, a disciplinary hearing or impeachment inquiry) in the future.

While there are differences between the resolutions involved in Kilbourn and Chapman that could explain the different outcomes, it is difficult to escape the impression that Chapman applied a much more deferential standard to reviewing the validity of the Senate’s investigatory purpose. The fact that Chapman was convicted in court, rather than being adjudged guilty by the legislative body, likely played a role.

Categorizing Congressional Investigations

It may be helpful here to break down congressional investigations into three categories: (1) judicial authority investigations (e.g., impeachment, election contests, member discipline or expulsion); (2) legislative authority investigations (i.e., gathering information for legislative purposes such as drafting potential legislation); and (3) other investigations.

Both Kilbourn and Chapman recognized that Congress could use compulsory process in connection with category 1 judicial authority investigations. Neither case, however, addressed whether it could do so in connection with legislative authority investigations. Chapman did not do so because it validated the compulsory process in question under the Senate’s judicial authority (member discipline/expulsion). Kilbourn did not do so because it found the investigation in question was not a proper use of investigatory authority in any event and therefore the Court did not need to confront the question of whether compulsory process could be used in category 2 investigations.

Note that I did not define category 3 investigations as “unauthorized” or “improper.” This is because it is not at all clear that investigations which do not fall within categories 1 or 2 are necessarily such. For one thing, they may be permissible so long as they do not employ compulsory process. Even Kilbourn, which found that the House resolution authorizing the investigation was beyond the limits of that body’s authority, did not necessarily indicate that it was improper for the House to inquire about the subject in question. Instead, the Court stated the committee “had no lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell.” 103 U.S. at 196. Thus, the Court arguably was ruling only on the availability of compulsory process, not whether the committee could inquire about the subject at all.

This may simply reflect the reality that the Court has no authority nor practical ability to stop Congress from holding hearings or making non-compulsory requests for information on any subject it pleases. Nonetheless, it seems to me an overreading of Kilbourn to say it limits Congress’s authority to conduct inquiries or gather information to subjects the Court deems sufficiently related to a valid legislative purpose.  Rather, the Court’s concern was that the House was using one judicial power (the contempt power) to investigate private business affairs in a manner that encroached upon the function of an ongoing judicial proceeding. This to the Court raised the specter of the House transforming itself into a court of general jurisdiction. 103 U.S. at 195-96. This is not an issue when Congress investigates without the use of compulsory process (or perhaps even with compulsory process enforced through the criminal contempt statute).

Furthermore, Kilbourn cannot fairly be read to limit congressional inquiries into governmental affairs. The Court stressed that the investigation involved inquiry into “private” and “personal” affairs and specifically “into the private affairs of individuals who hold no office under the government.” 103 U.S. at 190, 195. Thus, nothing in Kilbourn is inconsistent with the proposition that “Congress may have, quite apart from its legislative responsibilities, a general oversight power.” See Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).

Of course, the importance of recognizing a (legitimate) category 3 power depends on what is in category 2. Post-Kilbourn cases (which we shall discuss in future posts) not only established that Congress could use compulsory process in support of its category 2 legislative investigations, but generally employed very deferential standards for determining what constitutes a legitimate legislative investigation, such that Judge Mehta, the district judge in Mazars, suggested these standards “do not substantially constrain Congress.” If this is (and continues to be) a correct reading of the caselaw, then category 3 may be a null set or limited to extraordinary instances where Congress uses its investigatory power in a clearly improper way.

On the other hand, if there is a robust test for determining what constitutes a proper category 2 investigation, many types of congressional information gathering may fall within category 3 due to lack of any immediate or apparent connection to legislative action. These would include routine congressional inquiries to executive agencies for general information or constituent assistance. They would include thousands of statutes imposing requirements that agencies make periodic reports to Congress of a tremendous variety of information. The would include laws that authorize congressional committees or other legislative branch entities to obtain particular types of information from the executive branch (tax return information, for example). They would include the legal requirement that the President keep the intelligence committees “fully and currently informed” of intelligence activities. They would include laws that authorize whistleblowers and require inspectors general to report various types of wrongdoing to Congress. And so on.

Any attempt to narrowly limit the types of congressional investigations that fall within category 2 would either mean calling into question the constitutionality of these long-established means of congressional information gathering or recognizing a separate category 3 of legitimate congressional oversight activities.


This brings us to the D.C. Circuit’s decision in Trump v. Mazars, which, you may recall, involves a subpoena issued by the House Committee on Oversight and Reform to President Trump’s accounting firm for the production of the president’s personal financial records. [Note: as you may know, the chairman of the committee, Elijah Cummings, sadly passed away in recent days. RIP].  President Trump brought suit against the accounting firm to prevent it from complying with the congressional subpoena.

At the outset, it could be questioned whether this subpoena implicates Kilbourn, Chapman, or other compulsory process cases because the parties objecting to the subpoena (Trump and his companies) were not subject to compulsory process. Mazars for business and legal reasons had insisted on a subpoena before providing documents to Congress, but it did not object to complying with the subpoena. Given that the Trump plaintiffs have neither a claim of legal privilege nor an asserted property interest in the documents, see Majority Op. at 32, it is puzzling to me as to why the courts should be involved here at all. Nonetheless, the House did not contest standing and no judge thus far has questioned it either. See Dissent at 9 (noting that the majority “declin[ed] to question President Trump’s standing to challenge the subpoena’s validity.”).

Instead, the argument in Mazars has focused on whether the subpoena is supported by a “legitimate legislative purpose” and therefore reflects a proper category 2 investigation. Here it should be acknowledged that the Mazars subpoena at least arguably involves something out of the ordinary for a congressional investigation. Congress often investigates allegations of corruption, fraud or other illegal conduct in the executive branch, but these investigations almost always relate to some sort of misconduct in office. (An exception would be the initial congressional investigation into Whitewater). Here the records sought related to President Trump’s personal business affairs, and most of them preceded his time in office. To be sure, the committee argued that these records could shed light on possible misconduct in office (e.g., potential violations of the emoluments clauses), but it is not unfair to note that the gravamen of the investigation appears to be Trump’s potentially illegal conduct as a private businessman.

Trump’s legal team advanced two legal arguments in challenging the subpoena. First, it argued that the purpose of the subpoena was to “investigate alleged legal violations,” which is not a proper legislative function but one entrusted to the other branches. See Br. of Appellants at 12, Trump v. Mazars (filed June 10, 2019). The problem with this argument is that the committee had identified specific issues it was investigating with respect to the president (e.g., potential conflicts of interest, emoluments clause violations and accuracy of financial reporting) and contended that this information was relevant to various laws and legislative proposals within its jurisdiction. While one could debate the plausibility of these legislative rationales, as noted earlier courts have generally given Congress great deference as to its legislative purposes, and they have also consistently refused to examine Congress’s actual motives in conducting investigations. Thus, it was unlikely Trump could prevail on this argument alone.

Trump’s team therefore advanced a second argument. It essentially argued that “constitutional offices” (namely the president, the vice-president and justices of the Supreme Court) are generally not within Congress’s legislative jurisdiction because Congress’s authority to legislate with regard to these constitutional offices is “severely constrained.” Br. of Appellants at 4, 38. Therefore, Congress could not conduct this investigation using its category 2 powers. While the committee could “presumably” use its category 1 powers (i.e., impeachment) to issue the subpoena in in question, it had not invoked them here. Br. of Appellants at 45.

The Justice Department (at the request of the D.C. Circuit) submitted an amicus brief reflecting the views of the United States. See Br. for the United States as Amicus Curiae, Trump v. Mazars (filed Aug. 6, 2019). It declined to go as far as Trump’s lawyers in suggesting a carveout for constitutional offices from Congress’s power to conduct category 2 legislative investigations. Instead, it proposed a clear statement rule when the president is the “target” or “subject” of a category 2 legislative investigation. The proposed rule would require the full legislative body to both clearly authorize a subpoena for the president’s records and identify “with sufficient particularity the subject matter of potential legislation to which the information sought is pertinent and necessary.” Br. for the United States at 2.

It should come as no surprise that Trump’s novel argument failed to persuade the D.C. Circuit to invalidate the subpoena to Mazars. Majority Op. at 65-66. While the Justice Department’s position was more modest and therefore more reasonably calculated to win the support of sympathetic judges, its failure hardly a shock either. See id. at 32-35. What does come as a shock is Judge Rao’s dissent, which was completely different in its reasoning and far more radical in its conclusion than either the Trump or Justice Department arguments.

Rao’s view is that “the House cannot investigate the illegal conduct of an impeachable officer pursuant to the legislative power.” Dissent at 37. She bases this conclusion on the theory that “the House’s legislative and judicial powers are wholly distinct and the House cannot target conduct that could constitute a high crime or misdemeanor through the legislative power.” Dissent at 37-38. In other words, if the House undertakes an investigation that could ordinarily be conducted pursuant to its category 2  legislative power, it may not do so if its category 1 judicial power could be employed.

Rao purports to derive her theory from a combination of constitutional text and structure, the “original understanding of Congress’s separate legislative and impeachment power,” and “consistent historical practice.” Dissent at 11. She relies in large part on (her interpretation of) nonjudicial precedents and practices, such as executive branch statements and congressional investigative practices. See Dissent at 20-37.

There is a lot to be said about these aspects of Judge Rao’s opinion, but neither time nor space permit me to do so today. Instead, I want to focus on her treatment of judicial precedent and particularly the two cases we have just discussed. While Rao does not cite Chapman, her opinion relies heavily on Kilbourn. See Dissent at 3, 5, 7, 14, 17, 46, 50, 52, 58 & 60. Most importantly, though Rao concedes her theory “has never been squarely addressed by the Supreme Court,” Dissent at 11, she also asserts (somewhat inconsistently) that Kilbourn stands for the proposition that “Congress cannot undertake a legislative investigation of an impeachable official if the ‘gravamen’ of the investigation rests on ‘suspicions of criminality.'” Dissent at 7 (quoting Kilbourn, 103 U.S. at 193, 195). If this were true, of course, it would make Kilbourn direct authority for Rao’s position.

Unfortunately, Kilbourn plainly does not say what Rao claims it says. Because the Court found that the investigation could  be supported neither as a category 1 impeachment inquiry nor as a category 2 legislative investigation, it had no occasion to consider what would happen if the investigation could be supported as either or both. Nothing in the Court’s discussion, moreover, suggests that Congress is required to choose one or the other category under which to proceed; if anything, Kilbourn and Chapman tend to suggest the precise opposite.

Judge Rao apparently reads Kilbourn as if the underlying investigation were “targeted” (a word that has both subjective and objective connotations) at impeachable or potentially impeachable offenses by the secretary of the navy. Thus, she states that in Kilbourn “the Court invalidated a subpoena against the Secretary of the Navy because it lacked a legitimate legislative purpose.” Dissent at 50. Where she got the idea the subpoena was “against” the secretary of the navy is unclear. It was obviously not directed to the secretary of the navy. Moreover, there is no indication in the opinion or the record before the Court that Kilbourn had anything to do with the secretary of the navy, nor that the subpoena to him had either the purpose or effect of gathering information regarding the secretary’s conduct.

Recall that the case as it was presented to the Court was on the pleadings and, as best can be determined by the reported argument, the House defendants relied solely on the resolution authorizing the investigation and other formal actions by the House. See 103 U.S. at 170-78. These indicate neither an interest in impeachment nor a legislative purpose. The same is true of the congressional reports of the case. See 2 Hinds’ Precedents §§ 1608-11. (Indeed, the House seems to have ignored Kilbourn’s offer to provide the requested information if the House or committee would assert that doing so would “promote any public interest.”).

It was on this record that the Kilbourn Court concluded that the House had authorized “a fruitless investigation into the private affairs of individuals,” explaining that by “fruitless” it meant “it could result in no valid legislation on the subject to which the inquiry referred.” 103 U.S. at 195.

Because there was no legislative purpose, Kilbourn found no need to decide whether a contumacious witness could be punished by the House in the course of a valid legislative (category 2) investigation. It made clear, however, that such punishment was permissible in the course of an impeachment or other judicial (category 1) investigation. Had the House “avowed” a purpose to conduct an impeachment inquiry, the Court suggests that the contempt would have been upheld. See 103 U.S. at 193 (“If, indeed, any purpose had been avowed to impeach the secretary, the whole aspect of the case would have been changed.”).

Even in the absence of an express avowal, the Court suggests that the contempt could be upheld if the “purpose” of investigating impeachment could be inferred from the resolution authorizing the investigation. However, although the resolution referred to the secretary’s conduct as “improvident,” the “absence of any words implying suspicion of criminality repel the idea of any such purpose, for the secretary could only be impeached for ‘high crimes and misdemeanors.'” 103 U.S. at 193.

In other words, Kilbourn implies that an investigation can be justified as an exercise of Congress’s category 1 judicial powers even in the absence of an express avowal of an intent to invoke those powers. Chapman confirms this interpretation because there the Court upheld the validity of the Senate’s investigation as an exercise of its category 1 judicial power under the discipline/expulsion clause even thought the Senate had not expressly invoked its authority under that clause. The Court in fact recognized that the Senate’s investigation had not yet reached the stage of formal disciplinary proceedings and might never do so. Nevertheless, the Senate was free to investigate because the allegations in question “were deemed by the Senate reprehensible and deserving of condemnation and punishment” and therefore, if established, could fall within the ambit of “cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.” 166 U.S. at 669. This was sufficient to establish the Senate’s investigatory jurisdiction, and “it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing why the investigation was concluded.” Id. at 670.

Kilbourn and Chapman therefore establish the proposition precisely opposite to that advanced by Judge Rao. Assuming, as Rao does, that the facts being investigated by the House committee in Mazars are sufficient to invoke the House’s impeachment jurisdiction, these precedents indicate that the subpoena would be valid even in the absence of a legitimate legislative purpose. Moreover, Chapman demonstrates this is true even if the investigation is preliminary in nature and does not formally invoke Congress’s judicial powers or any procedural protections associated therewith. Compare Dissent at 58 (claiming that Congress may not “gather information that may be used for impeachment without the protections inherent in an impeachment investigation or proceeding”).

Rao’s dissent is also contrary to Kilbourn in another way. That case stressed that it was only limiting Congress’s authority to inquire into private or personal affairs of individuals who hold no government office. Rao turns this principle on its head by contending that Congress enjoys greater leeway to investigate illegal conduct of private individuals than of impeachable government officials. See Dissent at 44. This is emphatically not the teaching of Kilbourn (or, for that matter, of any other case of which I am aware).

As noted earlier, I will not make this blog post any longer by analyzing other aspects of Rao’s dissent. I must, however, close with one general comment. Rao suggests that her novel and radical theory merely represents long-settled conventional wisdom, while repeatedly accusing the majority of “break[ing] new ground,” “a novel holding” and overturning “longstanding historical practice.” Dissent at 1, 8; see also id. at 9, 36, 43, 51, 55, 57 & 68. If there were even a grain of truth to these claims, one would expect that the Trump legal team or the Department of Justice would have thought to advance her theory. The fact that neither did so speaks volumes.




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