Justice Thomas and Judge Rao: A Tale of Two Mazars Dissents

Justice Thomas’s dissent in Trump v. Mazars USA, LLP, 591 U.S. __ (2020), has been compared to Judge Rao’s dissent in the D.C. Circuit below, with the implication that this somewhat vindicates Rao’s widely panned opinion. However, the two dissents are in fact quite different, and it seems pretty clear that Justice Thomas was not persuaded by his former clerk’s opinion.

To be sure, there are similarities between the two dissents. Both ignore the presidency-centered arguments offered by President Trump’s personal legal team and the Department of Justice in favor of broader theories not raised by any party or amicus. Both evince skepticism if not outright hostility toward legislative investigations generally and clearly prefer the stance taken by the Court in Kilbourn v. Thompson, 103 U.S. 168 (1881) to that of McGrain v. Daugherty, 273 U.S. 135 (1927). Both indicate that these congressional subpoenas seeking the president’s personal financial information would be valid, if at all, only through the exercise of the impeachment power. Both rely to a great extent on historical practice, particularly a kind of negative historical practice (i.e., drawing conclusions from things that allegedly did not happen).

Despite these similarities, the two dissents employ different reasoning, rely on different “precedents,” and reach very different conclusions. The textual and structural lynchpin of Judge Rao’s analysis is the impeachment power, which she claims “provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process.” Trump v. Mazars USA, LLP, 940 F.3d 710, 751 (D.C. Cir. 2019) (Rao, J., dissenting). While Rao acknowledges Congress’s general legislative power to conduct investigations, this power in her view does not extend to matters within the “impeachment zone” (my term, not hers). How one determines what falls within the impeachment zone is somewhat unclear, but Rao finds that the subpoenas for Trump’s financial information are ones that can only be pursued through the impeachment power.

Much of Rao’s opinion is devoted to her contention that “consistent historical practice” supports her conclusion. Id. at 753. To wit, she endeavors to show that Congress has never investigated matters within the impeachment zone except through the use of the impeachment power. Id. at 758-67.

Thomas takes a different approach. Although he agrees with Rao that the personal financial records at issue may be obtained by Congress, if at all, only through the exercise of the impeachment power, he reaches this result because he believes Congress lacks the power to subpoena private, nonofficial documents in any legislative investigation. Unlike Rao, he does not claim that the impeachment power somehow displaces otherwise available legislative power to investigate.

A simple illustration of the difference between the two dissents is to imagine Donald Trump had never been elected president. (It’s easy if you try). Under Rao’s theory, Congress would be able to subpoena his financial records for legislative purposes, such as to investigate the operation of money-laundering laws (which was the asserted purpose of the subpoena issued by the Committee on Financial Services). Under Thomas’s theory, on the other hand, these records could never be subpoenaed for a legislative purpose.

Put another way, Thomas would proscribe a particular legislative tool (subpoenas for private documents) for all legislative investigations, while Rao would proscribe the use of any compulsory process for certain investigative subjects (legislative investigations of matters falling within the impeachment zone). Thus, Rao would allow subpoenas for private documents in legislative investigations outside the impeachment zone; Thomas would not. Thomas would allow subpoenas for testimony or official documents in legislative investigations within the impeachment zone; Rao would not. Though they produce the same result in this particular case, the two theories are entirely different.

Furthermore, Thomas evidently rejects Rao’s interpretation of historical practice. While Rao claims that investigations of wrongdoing by impeachable officials have occurred exclusively through the exercise of the impeachment power, Thomas makes this observation:

     For nearly two centuries, until the 1970s, Congress never attempted to subpoena documents to investigate wrongdoing by the President outside the context of impeachment. Congress investigated Presidents without opening impeachment proceedings. But it never issued a subpoena for private, nonofficial documents as part of those non-impeachment inquiries.

Trump v. Mazars USA, LLP, 591 U.S. __, slip op. at 20-21 (2020) (Thomas, J., dissenting) (citation omitted) (emphasis added).

As Thomas acknowledges, Congress has investigated wrongdoing by presidents (not to mention other impeachable officials) in “non-impeachment inquiries” both before and after the 1970s. Whatever the factual accuracy or legal significance of the claim that these non-impeachment inquiries did not subpoena private, nonofficial documents “until the 1970s,” Thomas clearly does not see the historical pattern asserted by Rao as the key to her dissent.

None of this is to say that Justice Thomas’s dissent is correct (it is not) or even more plausible than Judge Rao’s (we will leave that to another day). It is fair to say, though, that Thomas was unpersuaded by Rao’s analysis and finds his own to be more plausible.

Leave a Reply

Your email address will not be published.