I will take the occasion of a tweet by Representative Ted Lieu to make a point so obvious it may have been overlooked. Representative Lieu was responding to a question about why House Democrats have not subpoenaed the administrator of GSA (Emily Murphy, who goes by the adorable twitter handle of @GSAEmily) to ask her why she has not yet ascertained “the apparent successful candidates for the office of President and Vice President” in accordance with the Presidential Transition Act of 1963 (3 U.S.C. § 102 note). Lieu explained:


(You can tell he is serious by the all-caps). Lieu goes on to say that GSA would simply ignore a subpoena, and that the House should change its rules to authorize inherent contempt, which would allow the sergeant-at-arms to arrest Murphy or other recalcitrant witnesses and bring them before a committee to testify (and, if they refuse, to try them for contempt before the bar of the House).

Now no one is more concerned than I about the impotence of congressional compulsory process with respect to the executive branch. All options for addressing that problem, including the revival of inherent contempt, should be on table for discussion.

However, the most important thing that the House could do right now to restore respect for its process would be to use the criminal contempt procedure set forth in 2 U.S.C. § 194. Under that provision, when a witness fails to appear, answer questions or produce documents in a congressional investigation, the House or Senate may refer the matter “to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.”

As we have frequently discussed, this provision is normally of little value with regard to executive branch witnesses because the Justice Department, despite the apparently mandatory language of the law, takes the position that it does not require it to take action when a witness asserts an official privilege at the president’s direction. Of course, ordinarily the Justice Department that makes the decision on prosecution is the same as the one that advised the president with regard to assertion of the privilege in the first place. That circumstance does not obtain today. There will be (at least if my twitter feed is to be believed)  a new administration come January 20, 2021, which may be willing to move forward with congressional contempt prosecutions of executive officials (or former executive officials), at least under certain conditions.

In the case of Murphy, for example, there are no grounds that I am aware of, even under the views previously articulated by OLC, for her to refuse to even appear before a congressional committee to discuss her statutory duties with regard to the transition. If she were to simply ignore a subpoena to appear, as Lieu suggests she would, she would be taking a very big risk that a new U.S. attorney for the District of Columbia (the “appropriate” U.S. attorney in this and almost all contempt cases) would decide to prosecute her. I suspect that she would in fact appear pursuant to a subpoena, but if she doesn’t, the House should certainly refer her for prosecution. (If she shows up but refuses to answer particular questions, we can cross that bridge when we come to it.)

Apart from Murphy, the House should be looking at strong contempt cases which could be referred now to the U.S. attorney. Presumably the current (acting) U.S. attorney will take no action on them, but as far as I know there is no way for him to prevent his successor from doing so. If the incoming Biden Justice Department is willing to prosecute one or more of the most egregious cases of executive contempt, that may go some way to restoring effective deterrence. And if it is not willing to do so, that will tell us something as well.

Me and the Committee on Privileges

The Committee on Privileges of the House of Commons, which is reviewing the authority of select committees to compel the production of information and punish for contempt, has published my submission, which provides a general overview of similar dilemmas facing Congress in this area. If you would like to read it (and why wouldn’t you?), click here.

Justice Thomas, the Committee on Manufactures, and the Precedent of 1827

Continuing from my last post, let’s take a closer look at the precedent Justice Thomas considers “particularly significant” for purposes of determining whether Congress may subpoena private documents in a legislative investigation. In 1827, the House Committee on Manufactures (COM), which had been charged with developing a legislative proposal to raise tariffs, asked the House to pass the following resolution: “Resolved, That the Committee on Manufactures be vested with the power to send for persons and papers.” 4 Cong. Deb. 862 (Dec. 31, 1827). Members of the committee believed that it needed to hear from witnesses, particularly representatives of manufacturing interests that would benefit from tariffs, to determine both what goods should be protected and what the optimal tariff amount would be. See id. at 871-73 (Rep. Livingston); 875-76 (Rep. Buchanan).

Here is how Justice Thomas characterizes the ensuing debate over COM’s request:

This debate is particularly significant because of the arguments made by both sides. Proponents made essentially the same arguments the Committees raise here– that the power to send for persons and papers was necessary to inform Congress as it legislated. [4 Cong. Deb.] at 871 (Rep. Livingston). Opponents argued that this power was not part of any legislative function. Id. at 865-866 (Rep. Strong). They also argued that the House of Commons provided no precedent because Congress was a body of limited and enumerated powers. Id. at 882 (Rep. Wood). And in the end, the opponents prevailed. Thus, through 1827, the idea that Congress had the implied power to issue subpoenas for private documents was considered “novel,” “extraordinary,” and “unnecessary.” Id. at 874.

Dissent at 9.

Thus, Thomas argues that the record shows two things: (1) opponents of the resolution argued that Congress lacked the power to issue subpoenas for private documents as part of a legislative investigation; and (2) the opponents prevailed in the debate, thereby establishing a precedent that Congress lacked such power. As I will show below, Thomas badly misreads what happened in this debate.

The first thing to understand is that the debate was not primarily about the legal principle underlying COM’s request. Rather opponents had a practical and political objection to the request, namely that they feared it was a delaying tactic that would prevent a bill from being passed before the end of the session. See 4 Cong. Deb. 869 (Rep. Mallary) (“It certainly looked very much as if the object of the gentlemen, in introducing such a resolution as this, was merely to produce delay.”); id. at 865 (Rep. Strong) (“If the [requested] power be exercised, there will not be time to report and pass the bill during this session.”); see also id. at 866-67 (Rep. Stewart); 866-67 (Rep. Storrs); James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 177 (1926) (“Northern protection against southern free-trade appeared as the dominant issue and found violent partisans within and without Congress.”).

To be sure opponents also objected to COM’s request on the grounds that it was “novel” and “extraordinary.” See 4 Cong. Deb. 862 (Rep. Strong); id. (Rep. Wright of New York); id. at 874 (Rep. Stewart). Some doubted whether the House had the power to grant the request, although only one clearly took the position it did not. See id. at 877 (Rep. Wood).

In this regard opponents of the resolution focused on the unprecedented nature of giving a committee the power to send for “persons and papers” merely in order “to adjust the details of an ordinary bill.” 4 Cong. Deb. 866 (Rep. Strong). COM’s task, they suggested, was to exercise judgment based on a broad assessment of economic and social conditions (what might be termed “legislative facts” in modern parlance), rather than to investigate specific factual situations. See id. at 869-71 (Rep. Mallary). Thus, while Representative Wood expressed the strict view that “the only cases in which the House has a right to send for persons and papers, are those of impeachment, and of contested elections,” id. at 882, other opponents suggested a more nuanced distinction between gathering information to draft an “ordinary bill” and what today we might call “investigative oversight.” The latter position was more consistent with existing House precedent as a number of committees had been authorized to exercise compulsory powers for nonimpeachment investigations (including the St. Clair, Wilkinson, and Calhoun investigations). See Landis, supra, at 170-77; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 36-37, 53-54, 64-66, 86-93 (1928).

What is most important, however, is that no one argued that there was something special, either constitutionally or as a matter of House precedent, about giving COM the power to demand the production of private documents (or any documents). The issue was whether COM should have any compulsory powers, not whether it should have the power to call for papers in particular. Indeed, the debate makes clear that COM’s interest was in hearing from witnesses; there is no indication it wished to obtain documents.

It is simply not accurate to suggest, as the dissent does, that opponents “prevailed” on removing COM’s power to call for documents. What actually happened was that Representative Oakley proposed an amendment to the resolution adding the words “with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods.” 4 Cong. Deb. 868. The purpose of the proposed amendment (which did not affect the power to call for documents) was to address the objection that COM’s proposed resolution, unlike prior resolutions of this nature, did not specify the purpose for which the power was granted.

Oakley’s amendment mollified no one. Representative Stevenson, a supporter of the original resolution, noted that requiring the committee to submit a detailed report would create the kind of delay opponents feared. 4 Cong. Deb. 869. Representative Mallary, an opponent, remarked “that he could not perceive that the amendment varied in the least the principle of the resolution.” Id. at 869.

Nonetheless, Oakley persisted. He offered a new version of his amendment which he suggested would address the concern expressed by Stevenson. The new amendment was in the nature of a substitute for the original resolution, and it provided in full: “That the Committee on Manufactures be empowered to send for, and to examine persons on oath, concerning the present condition of our manufactures, and to report the minutes of such examination to this House.” 4 Cong. Deb. 873.

This revised amendment appears to have done nothing to soften the opposition of the pro-tariff side. See 4 Cong. Deb. 873 (Rep. Stewart) (noting that he “thought his amendment was substantially the same as the other”). Supporters of the resolution, on the other hand, found it acceptable. See id. at 875 (Rep. Buchanan) (“I am in favor of the amendment proposed by [Oakley]; not because it varies in principle from the resolution reported by the Committee on Manufactures, but because it expresses more fully and distinctly the objects which that committee had in view.”). Though Oakley’s revised amendment did not appear to change any minds, the House accepted it and ultimately approved the resolution as amended. Id. at 888, 890.

Oakley’s revised amendment did eliminate the authorization for COM to call for papers. This, however, was not the expressed purpose of the amendment, and it is unclear whether the omission was even intentional. Oakley himself never mentioned it, and it attracted little attention from anyone else. Representative Wright of New York noted the omission and suggested that Oakley might want to modify the amendment to authorize COM to require witnesses to bring the books of their establishments when they appeared to testify. 4 Cong. Deb. 879. Although no one else followed up on this suggestion, one of the opponents of the resolution (confusingly also named Wright, but from Ohio) attacked Wright of New York for making it. See id. at 885 (“Are gentlemen prepared, sir, to establish an inquisition in this country, that shall pry into the business concerns of individuals, upon common subjects of general legislation?”). Other than this rhetorical jab, no one appeared to care about the issue at all.

There is, in short, nothing to suggest that anyone, including Oakley himself, voted for the revised amendment because it eliminated COM’s power to call for papers. If there were “swing voters” who supported the resolution because of this modification, there is nothing in the record to so indicate. Not a single member argued that the power to call for papers raised a separate constitutional issue or that the elimination of this power affected the constitutionality or propriety of the resolution.

The House’s ultimate adoption of the resolution has been uniformly understood as establishing a precedent in favor of the House’s authority to use compulsory powers for purposes of aiding the drafting of legislation. See Landis, supra, at 177-78; Eberling, supra, at 94-98; Telford Taylor, Grand Inquest: The Story of Congressional Investigations 34 (1955). No commentator has suggested “the opponents prevailed” or interpreted the result as a precedent against the House’s authority to compel the production of documents. Cf. Carl Beck, Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945-1957 17 (1959) (“Throughout its history Congress has been aware that this power [to compel the production of documents and papers] is necessary to gather facts in aid of a legislative purpose and to serve as a watchdog upon the executive branch of the government.”).

As Justice Thomas notes, controversy over the extent of congressional compulsory powers did not end in 1827. Dissent at 9-11. However, his discussion of these subsequent controversies overlooks that: (1) like the 1827 debate, they involved whether compulsory powers generally, not the power to compel the production of documents in particular, could be employed in certain types of investigations; (2) those who opposed the use of compulsory powers did not assert the 1827 vote as a precedent in their favor; and (3) these later controversies also invariably were resolved in favor of the compulsory power. Thus, to the extent that Justice Thomas believes that Congress lacks any compulsory power in legislative investigations, he is not asserting a novel position, but one that has been repeatedly rejected by both houses of Congress over two centuries. On the other hand, the idea that Congress specifically lacks the power to compel the production of documents has not only been (impliedly) rejected, it does not appear to have been even asserted.

Thomas’s dissent also alludes to the possibility that congressional subpoenas for documents might violate the Fourth Amendment. See Dissent at 7. This is a different legal argument than the claim Congress lacks the power to subpoena documents in the first place. This argument was raised on at least one occasion of which I am aware, although interestingly the dissent does not cite it. When the original contempt of Congress statute was introduced in 1857, Representative Israel Washburn questioned whether making it a crime to withhold papers from Congress would be consistent with the Fourth Amendment. See David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861 222 (2005). Washburn asked “Are you not by this bill dispensing with the conditions and requirements of the Constitution and endeavoring to obtain the possession of private papers without warrant issued upon probable cause, and supported by oath or affirmation?” Id.

It was perhaps an interesting question, though Professor Currie reports that “no one condescended to answer Washburn’s objection.” Of course, if taken seriously, the objection would call into question all congressional as well as judicial document subpoenas and, as Currie notes, has long since been settled by the Supreme Court against Washburn. See id. at 222-23 & nn. 98, 100. It is unclear how throwing the Fourth Amendment into the mix advances Justice Thomas’s argument.


Justice Thomas’s Dissent in Trump v. Mazars

Today I will discuss Justice Thomas’s dissent in Trump v. Mazars USA, LLP. Specifically, I will consider how Thomas uses historical practice and precedent to support his claim that “[a]t the time of the founding, the power to subpoena private, nonofficial documents was not included by necessary implication in any of Congress’s legislative powers.” Mazars, slip op. at 3 (Thomas, J., dissenting) (hereinafter “Dissent”).

The starting point for Justice Thomas is that the House has no express power to issue legislative subpoenas and thus it may only be found to have such power if it can “be necessarily implied from an enumerated power.” Dissent at 3. This in itself is fairly noncontroversial, leaving aside the longstanding debate whether “necessary” means absolutely necessary, merely convenient, or somewhere in between. See Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 188-208 (2003).

The challenges for Justice Thomas’s position are two-fold. First, as he acknowledges, the Supreme Court long ago decided this issue against him when it declared the “power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Although Thomas points out that McGraindid not involve document subpoenas, he does not contest that its language and reasoning are broad enough to cover such subpoenas, and he acknowledges that subsequent cases have applied it to uphold legislative subpoenas for private documents. Dissent at 14. Nonetheless, he contends that McGrain and its progeny should be disregarded because “this line of cases misunderstands both the original meaning of Article I and the historical practice underlying it.” Id.

This brings us to the second challenge. Even if we assume away the McGrain line of cases, Congress has been issuing legislative subpoenas for private documents for nearly two centuries, even by Thomas’s own reckoning. So in what sense might historical practice demonstrate that the original meaning of Article I does not encompass a congressional power to issue such subpoenas? According to the dissent, the key precedent occurred in 1827, when the Committee on Manufactures (COM) sought the power to subpoena documents and the House rejected the request as “unprecedented.” Dissent at 8. But even if this were true (and we will see that it is not), this would establish only that the issue was unsettled at that point in time. If a majority of the House had determined in 1827 that it lacked the constitutional authority to issue subpoenas for private documents, this would tell us little or nothing about the intent of the founders on this issue. Nor could it have constituted a “constitutional liquidation”  of the issue because, as Thomas acknowledges, the House reversed its (alleged) decision within the next ten years and has followed the practice of issuing such subpoenas ever since. See Dissent at 9-11; see generally William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019).

Perhaps one could make the argument that the absence of any history of issuing legislative document subpoenas prior to 1827 demonstrates that this power was not truly “necessary” in the sense required to make it incidental to the legislative power. If this is Thomas’s argument, however, he does not make it explicitly. To the contrary, he criticizes the McGrain Court for adopting “a test that rested heavily on functional considerations.” Dissent at 16. Although he offers his view that “the failure to respond to a subpoena does not pose a fundamental threat to Congress’ ability to exercise its powers,” this “functional” assertion appears in a footnote and is not central to the dissent’s analysis. See Dissent at 17 n.6.

The “key moves” in the dissent’s argument serve to define the universe of relevant practice and precedent so narrowly that none exists prior to the Committee on Manufactures’ request in 1827. First, Thomas insists that only precedent involving the production of private papers, rather than official papers or witness testimony, is relevant. See Dissent at 6. Second, he assumes that the actual exercise of the subpoena or compulsory power, as opposed to the mere authorization of such power by the legislative body, is required to establish a persuasive precedent. Third, he discounts precedents from Parliament and (to a lesser degree) the colonial and early state legislatures on the ground that these bodies are not “exact precursor[s]” to Congress, which has more limited powers. See Dissent at 3-7. Finally, he contends that precedents established in the exercise of nonlegislative functions (such as impeachment, discipline of members, and other quasi-judicial functions) are unpersuasive to establish the existence of a like legislative power. Dissent at 6-7.

This approach allows the dissent to ignore the fact that the practice of investing legislative committees with the power to send for “persons and papers” dates back to the early 17thcentury. Telford Taylor, Grand Inquest: The Story of Congressional Investigations 7 (1955). It was commonly used by Parliament, the colonial assemblies, and the early state legislatures to empower committees to conduct a wide variety of investigations, including those related to election contests, breaches of privilege, government misconduct or maladministration, and proposed legislation. See Taylor, Grand Inquest at 7-12; Ernest Eberling, Congressional Investigations: A Study of the Origin and Development of the Power of Congress to Investigate and Punish for Contempt 14-30 (1928); James M. Landis, Constitutional Limitations on the Power of Investigation, 40 Harv. L. Rev. 153, 161-68 (1926); C.S. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. Pa. L. Rev. 691, 708-15 (1926). While this power was usually provided in connection with a specific investigation, in 1781 the Virginia House of Delegates provided four standing committees (on religion, privileges and elections, courts of justice, and trade) with general power to “send for persons, papers, and records for their information.” Potts, 74 U. Pa. L. Rev. at 716.

The dissent apparently would view this ample historical precedent to be of little weight in the absence of evidence that any of these committees actually subpoenaed private papers or that any witness was punished for withholding them. But given the large number of these investigations and the wide variety of subjects they covered, it is not credible to suggest the term “papers” was understood to be limited to “official papers.” The dissent cites no evidence to suggest that anyone at the time understood these authorizations to be so limited, nor do any of the scholars who have studied these investigations advance such an interpretation.

The dissent’s narrow reading of precedent extends to early congressional practice. Take, for example, the House’s 1792 investigation into General St. Clair’s failed military expedition, which the McGrain Court viewed as significant evidence that the founders understood the power to compel the production of information as an inherent attribute of the legislative power. See McGrain, 273 U.S. at 161, 174. The House empowered the investigating committee “to call for such persons, papers and records as may be necessary to assist their inquiries.” As the McGrain Court understood (and Justice Thomas does not dispute), this language authorized the committee to demand the production of evidence with the implicit backing of the House’s compulsory powers.

According to the dissent, the St. Clair committee “never subpoenaed private, nonofficial documents, which is telling.” Dissent at 7. However, there is nothing in the language of the House’s resolution or in the contemporaneous congressional debates to suggest that the committee’s compulsory authority did not extent to private persons or papers. To the contrary, a significant part of the committee’s investigation involved evaluating the performance of private contractors and the quality of goods they supplied to General St. Clair’s army. See, e.g., I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History 1792-1974 39 (1983) (committee report of May 8, 1792 noting complaints “as to tents, knapsacks, camp kettles, cartridge boxes, packsaddles, &c. all of which were deficient in quantity and bad in quality”). If the committee were precluded from obtaining information from the contractors or compelling the production of their records, this seems like a significant limitation that would have attracted attention, particularly since the House debated at length whether the inquiry should be conducted by a congressional committee or a military tribunal. See id. at 9-10.

While it may be true that the St. Clair committee never subpoenaed “private, nonofficial documents” (a conclusion that cannot be reached with confidence given that many of the relevant records were not preserved, see id. at 17, 101), there is nothing “telling” about this fact. There is no indication that the committee lacked access to private documents it believed relevant; to the contrary, it reviewed St. Clair’s personal papers as well as information from the private contractors. See id. at 10, 95. There is simply nothing to suggest that the committee doubted its authority to subpoena private papers if necessary.

The overall effect of Justice Thomas’s approach is to narrow the scope of relevant precedent to a very small subset. In order to qualify, a precedent must involve an actual subpoena or document demand (not merely an authorization) by Congress (not by Parliament or a colonial/state legislature) for clearly private papers (not official or arguably official records) in connection with a legislative investigation (not the exercise of a judicial power such as impeachment or discipline of members). Using these restrictive criteria, Thomas contends that when in 1827 COM sought the power to subpoena documents in connection with a proposed bill to raise tariffs, its request was “unprecedented.” Dissent at 8.

Even so, Justice Thomas is wrong. About a year before the committee’s request, another House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). Moreover, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained from a number of private individuals, at least some of which was obtained by compulsory process. I Schlesinger & Bruns, Congress Investigates at 119 & 170. Thus, even by Thomas’s own standards, COM’s request was not “unprecedented.”

That being said, in my next post we will take a closer look at the 1827 debate precipitated by COM’s request for compulsory powers.




Will the D.C. Circuit’s “Unusual Moves” Allow it to Evade Supreme Court Review in the McGahn and Mnuchin Cases?

On Friday the D.C. Circuit, sitting en banc, held that the House Judiciary committee has standing to enforce its testimonial subpoena to former White House counsel Don McGahn. See Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-5331 (D.C. Cir. Aug. 7, 2020) (en banc). In so doing, the court rejected both the administration’s broad argument that Congress lacks Article III standing to sue anybody for anything and its narrower position that Congress lacks standing to bring an interbranch dispute to court. This is an important decision that, if it stands, will form the legal backdrop of executive-legislative disputes for years to come.

The court’s reasoning and that of the dissenters is not my focus today. (Professor Adler has a good summary of the various opinions here). Rather I want to focus on what happens next in these cases, and whether the majority has successfully insulated its decision from Supreme Court review.

The vote in McGahn was 7-2. The two dissenters were Judges Henderson and Griffith, who were the majority on the original panel to hear the McGahn case. They were also the only Republican appointees to participate in the en banc court because the two other Republicans on the court (Judges Katsas and Rao) were recused.

Although the McGahn en banc decision resolved the standing issue, it did not deal with other issues that had been raised on appeal. Instead, the full court ordered that the remaining appellate issues be “remanded to the panel to address in the first instance.” the issues remanded are (1) whether there is subject matter jurisdiction with respect to this lawsuit; (2) whether there is a cause of action for failure to comply with a congressional subpoena; and (3) assuming the Judiciary committee prevails on the first two issues, the merits of McGahn’s “absolute immunity” defense.

In addition to rejecting the majority’s standing analysis, Judge Griffith (but not Judge Henderson) protested the majority’s failure to decide all the issues in the case, noting that “the full court hurdles over Article III barriers only to decline to resolve the case.” In Griffith’s view, the court should have addressed the remaining issues and concluded, as he does, that there is no subject matter jurisdiction and no cause of action for the committee’s grievance against McGahn.

The original McGahn panel consisted of Judges Rogers, Henderson and Griffith. I assume the case will be remanded to the same panel. Judge Griffith, however, is retiring effective September 1 and therefore (I assume) will have to be replaced. Presumably this is why Griffith felt compelled/able to give his views on the issues the panel will now have to consider.

Separately, the en banc court remanded to a different panel the case of U.S. House of Representatives v. Mnuchin, No. 19-5176, in which the House is suing the Trump administration for violating the Appropriations Clause by constructing a border wall without congressional authorization. Although the en banc court initially agreed to consider the standing issue in Mnuchin (even before the original three-judge panel had ruled on it), it has now decided to send that issue back to the panel to consider the House’s standing under the principles set forth in its McGahn decision.

Judges Henderson and Griffith also dissented from the decision to remand Mnuchin, arguing that it makes no sense to have sua sponte agreed to hear the Mnuchin case en banc, requested and received supplemental briefing and argument, and then simply punted the issue back to the three-judge panel.  As Judge Henderson puts it, “[t]he majority points to no case– nor am I aware of any– in which we sua sponte consolidated two appeals for en banc rehearing and then addressed only one of them in the resulting opinion.” Mnuchin, slip op. at 2 (Henderson, J., dissenting).

Judge Griffith had some even more pointed remarks for his soon to be former colleagues. He accuses the full court of repeatedly departing from regular order by first determining that the standing question in Mnuchin was not only of such “exceptional importance” to justify rehearing en banc, but making this determination sua sponte before the three-judge panel had even issued an opinion, and then “sending the case back to the panel without answering the ‘question of exceptional importance’ that triggered rehearing in the first place.” Mnuchin, slip op. at 3 (Griffith, J., dissenting). He then asks: “What accounts for this extraordinary departure? The court offers no explanation for this unusual move, and I can think of none.” Id.

Well, I can think of an explanation (and I suspect Griffith can too). By failing to issue a final decision in either McGahn or Mnuchin, the D.C. Circuit has made it much less likely that the Supreme Court will have an opportunity to grant certiorari prior to the election. And if these cases drag on past the election, there is a good chance the Court will never hear them at all.

Let’s begin with McGahn. As everyone concedes, it is highly unlikely now that McGahn will be testifying in this congress (and certainly not before the election). Thus, there will be little urgency for the reconstituted panel to issue a final decision (and consider how slowly things moved when there was urgency). Possibly a final decision might issue before the election, but the longer it takes, the less reason the Supreme Court will have to grant review. In the first place, the expiration of the congress terminates the subpoena and therefore arguably moots the case. Furthermore, if the election changes the occupant of the White House, it is entirely possible the incoming Justice Department will not be interested in pursuing Supreme Court review.

Now consider Mnuchin. As in the case of McGahn, if the full D.C. Circuit had found in favor of the House now, the Justice Department would have undoubtedly sought Supreme Court review on an expedited basis. Even if the court found against the House (which frankly I think is more likely), the House might have felt politically that it needed to seek further review. However, if the Democrats win the White House, the House will probably lose interest in the case regardless of which way the panel decision goes, and the case will go away without Supreme Court review. Only if the House wins the panel decision and Trump retains the White House does it seem likely that the parties would pursue further review.

Note, however, that if there is a new administration, its interests will not necessarily align with those of the House. While it may not wish to take a case on congressional standing to the Supreme Court, it probably would prefer not to have the D.C. Circuit’s standing decision in McGahn as the controlling law either. Just as the Obama administration reportedly tried (unsuccessfully) to get the House to agree to dismissal of the Miers case on grounds of mootness, the issue in an incoming Biden administration may not be Supreme Court review, but whether the D.C. Circuit’s en banc decision in McGahn is rendered moot by the expiration of the congress or otherwise.

In short, the big issue in McGahn and Mnuchin is no longer whether the House will get the relief it initially sought, but whether the D. C. Circuit’s standing decision will be preserved as the law of the circuit. Interested parties should plan accordingly.



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.

Will the Mazars Court Overrule McGrain? (Part Two)

As suggested in my last post, the May 12, 2020 oral argument in Trump v. Mazars USA, LLP did not go well for the House, to put it mildly. Most of the tough questions for the House Counsel clustered around a single idea: what is the limiting principle that prevents Congress from prying into whatever it wants, whenever it wants? Before getting to that, however, let’s consider an even more fundamental issue raised by Justice Thomas.

Justice Thomas began his questioning of House Counsel Doug Letter by essentially asking what the constitutional basis is for recognizing the power to issue legislative subpoenas at all. Tr. 54-55. Letter responded by pointing to the long line of Supreme Court cases (which began with McGrain) holding that the power to conduct investigations and issue compulsory process is an inherent and integral part of the legislative power conferred by the Constitution.

Justice Thomas did not appear entirely satisfied with this answer, and he followed up by asking “can you give me the earliest example you have of Congress issuing a legislative subpoena?” Tr. 56. Letter pointed to the House’s 1792 investigation of General St. Clair’s failed expedition. This investigation was viewed by the McGrain Court as significant historical evidence of the existence of a constitutional power to issue legislative subpoenas. As the Court explained:

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry.

*           *          *

We are of opinion that the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history– the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action– and both houses have employed the power accordingly up to the present time.

McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927).

Still not satisfied, Thomas pressed further: “What’s the first example of Congress issuing a legislative subpoena to a private party for documents?” Tr. 56. Letter could not answer him directly, but referred him to the discussion of congressional investigatory history in Watkins v. United States, 354 U.S. 178 (1957).

The referenced passage in Watkins, I think, is the following:

Most of the instances of use of compulsory process by the first Congresses concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials. [Note: here the Court cites to Landis’s article]. Unlike the English practice, from the very outset, the use of contempt power by the legislature was deemed subject to judicial review.

     There was very little use of the power of compulsory process in early years to enable the Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws. The first occasion for such an investigation arose in 1827, when the House of Representatives was considering a revision of the tariff laws. In the Senate, there was no use of a factfinding investigation in aid of legislation until 1859.

Watkins, 354 U.S. at 192-93.

This passage does not specifically answer Justice Thomas’s question, but it suggests why it may not have been exactly the right question. While courts pass on the validity of specific subpoenas, the scope of Congress’s investigatory authority is determined by reference to the investigation that is being conducted, not by the nature of an individual subpoena (e.g., whether it is directed to a private party or seeks documents).

Thus, for example, the investigation of the St. Clair expedition would be one of the inquiries involving “suspected corruption or mismanagement of government officials” referred to in Watkins, but that does not  mean the investigation lacked the power to compel the production of documents or other information from private parties. Indeed, one of the issues in the St. Clair investigation was the quality of military supplies provided by private contractors, and the committee received affidavits and other evidence from these contractors. See I Arthur M. Schlesinger, Jr. & Roger Bruns, eds., Congress Investigates: A Documented History: 1792-1974 95 (1983). Whether or not the committee actually issued compulsory process to a private party, there seems little doubt it had the authority to do so.

When was the first occasion on which a congressional committee actually issued a legislative subpoena to a private party for documents? The earliest I can verify is that in 1827 a House committee investigating John Calhoun’s prior administration of the War Department subpoenaed documents from an unsuccessful bidder on a government contract. See 3 Reg. of Debates in Cong. 1124 (Feb. 13, 1827). However, the House’s 1810 investigation of General James Wilkinson also obtained testimony and documents from a number of private individuals, at least some of which was obtained by compulsory process. I Congress Investigates at 119 & 170.

The passage quoted from Watkins does not distinguish between subpoenas directed to private parties and government officials, but it does suggest a distinction between (1) investigations of suspected government corruption or mismanagement (what would often be referred to as congressional oversight) and (2) inquiries to obtain facts relevant to enacting or amending legislation. Although both are “legislative” in nature, the Court implies that the latter requires more vigorous scrutiny to ensure that the information sought is pertinent to the investigation, particularly when the information sought would implicate the constitutional rights of private citizens.

This interpretation is consistent with the holding of Watkins, where a labor organizer summoned to testify before the House Un-American Activities Committee testified freely about his own activities and associations, but refused to answer questions about individuals whom he believed may have once been but no longer were members of the Communist Party. The Court reversed his conviction for contempt of Congress, holding that the committee violated his rights under the contempt statute and the due process clause by failing to clearly explain to him the pertinency of the questions to its investigation. It did not dispute that political opinions and associations protected by the Bill of Rights could nonetheless be a proper subject of congressional investigation, but “[p]rotected freedoms should not be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.” Watkins, 354 U.S. at 198, 205.

The Court emphasized that it was not dealing with congressional oversight, noting that “[t]he public is, of course, entitled to be informed concerning the workings of its government.” Id. at 198. It explained:

     We are not concerned with the power of Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: “The informing function of Congress should be preferred even to its legislative function.” From the earliest times in its history, Congress has assiduously performed an “informing function” of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 168-194.

Watkins, 354 U.S. at 200 n.33 (citation omitted). The Court thus distinguishes the inquiry in Watkins from the type of congressional oversight involved in McGrain.

This distinction may help point the way to an answer to the question asked by many of the justices at the May 12 argument in Mazars, i.e., what stops Congress from investigating virtually anything on the basis that it has some connection to a subject on which legislation could potentially be had. See, e.g., Tr. 52-54 (Chief Justice Roberts); 57 (Justice Ginsburg); 64 (Justice Alito); 74 (Justice Kavanaugh). Letter had some difficulty answering this question, perhaps because judicial doctrine since McGrain has in fact been extremely deferential to Congress on this score. As the district judge in Mazars pointed out, the governing legal standards are so deferential that they “do not substantially constrain Congress.”

However, the real constraint on Congress is that enforcing a subpoena is extremely cumbersome and therefore legal sanctions for contempt are virtually never imposed. This is in part because the Court in cases like Watkins has imposed technical and procedural requirements for criminal contempt to address the very issue raised in the Mazars argument. See Watkins,  354 U.S. at 204 (expressing concern that the committee “can radiate outward infinitely to any topic thought to be related in some way” to its mandate, that “[r]emoteness of subject can be aggravated by a probe for a depth of detail even farther removed from any basis of legislative action,” and further that “investigators [can] turn their attention to the past to collect minutiae on remote topics, on the hypothesis that the past may reflect upon the present”).

As a consequence, any witness who wishes to contest a congressional subpoena has far more leverage than the formal legal standards would imply. In addition, witnesses have the right to assert privileges, including the privilege against self-incrimination. Congress also has political incentives which further constrain its exercise of the subpoena power. Thus, the hypotheticals advanced by the justices are, for the most part, very unlikely to occur. See, e.g., Tr. 85-86 (Justice Alito) (suggesting the possibility that one house of Congress might subpoena personal records relating to a member of the other house).

Of course, some of these safeguards are inoperative in the Mazars case because it presents the fairly rare scenario of Congress seeking non-privileged records from third parties with no interest in contesting the subpoenas. Whether this  creates a significant potential of congressional abuse is debatable. After all, if Congress were to attempt to exercise this authority in an excessive or abusive manner, banks and other third party record keepers would have an incentive to contest subpoenas to protect the interests of their clients. (This is why the Court would have been wise to consider this blog’s suggestion that only the third parties themselves should have standing to contest the validity of the subpoenas).

Nonetheless, there are undoubtedly instances where Congress investigates particular factual questions which seem tenuously related to a legislative need. It is difficult to see, for example, why Congress would need to know whether a particular baseball player used steroids in order to legislate on the general subject. One could reasonably argue that if Congress is merely seeking information as a case study of a particular social, economic or national security problem, it ought to explain not only how the information is pertinent to potential legislation but why there is a legislative need to explore one specific example out of many. This should be more than adequate to protect against some of the other hypotheticals raised in the May 12 argument, such as the idea that Congress could subpoena an individual’s medical records on the ground it was considering healthcare legislation. See Tr. 65 (Justice Sotomayor).

On the other hand, there is no need for Congress to provide any additional justification for conducting oversight of government agencies and officials. As explained in McGrain and Watkins (and detailed in Professor Landis’s article, among other places), Congress has conducted searching probes into the conduct of government officials and operations since its earliest days. Such investigations are inherently justified by the need to inform itself and the public as to the working of the federal government and to uncover corruption, maladministration and inefficiency of every kind.

This distinction is reflected in Justice Kagan’s suggestion that there may be reasons for treating differently the three congressional subpoenas involved in the consolidated Mazars and Deustche Bank cases. See Tr. 88. Although all three seek similar types of information (financial records relating to President Trump’s private business interests), there are significant differences in the nature of the investigation to which each subpoena relates. The investigation by the Financial Services committee seeks the information simply to use it as a case study of a much more general problem (money laundering) in the financial sector. By contrast, the subpoena from the Intelligence committee is for the purpose of determining whether the president has financial ties to Russia or other foreign actors that might create a conflict of interest or give such actors leverage over his official decision making. The latter falls squarely within the province of congressional oversight while the former constitutes a pure case study investigation that may require additional justification.

The subpoena from the House Oversight committee falls somewhere in the middle. It is defended in part on the ground that it will assist the committee in determining whether to recommend changes to disclosure laws applying to federal officials generally. This is arguably closer to a case study approach, although it seems self-evident why the committee would focus on the highest-ranking federal official, particularly when it has gathered substantial evidence that he has been less than truthful in his private financial disclosures. In addition, the subpoena can be justified on the pure oversight grounds of determining whether the president has financial conflicts of interest or is in violation of the Foreign Emoluments Clause.

The line suggested by Justice Kagan would allow the Court to uphold at least one and likely two of the congressional subpoenas, while sending the other(s) back for further proceedings. It seems to me this would be a reasonable compromise that would satisfy the concerns expressed by the justices (with the possible exception of Justice Thomas) without fundamentally disturbing the legal standards established by McGrain and applied in subsequent cases.

Unlike Kagan (and several of her colleagues), however, I would be loathe to establish a special protection applicable only to the president. Historically the Court’s concerns about over broad congressional investigations focus on protecting the affairs of private citizens from arbitrary scrutiny. Even Judge Cochran, who would have applied these principles to an inquiry into the conduct of (then former) Attorney General Daugherty, claimed only that these principles applied as much to federal officials as to private citizens, not that the former were entitled to additional protection. (To date only Judge Rao, in her Mazars dissent in the D.C. Circuit, has advanced the remarkable proposition that impeachable officials enjoy an immunity from legislative investigation that is unavailable to private citizens). If the Court believes that changes are needed to the doctrine governing congressional case study investigations to avoid arbitrary intrusions into private affairs, such should apply to all citizens, not just the one who happens to sit in the Oval Office.

Whatever the Court ends up deciding in Mazars, let us hope they emulate the McGrain Court in one way but not another: the first by achieving unanimity or something close to it; and the second by not taking more than two years to issue a decision.

Will the Mazars Court Overrule McGrain? (Part One)

Nearly a century ago the Supreme Court decided the landmark case of McGrain v. Daugherty, 273 U.S. 135, 174 (1927), in which the Court declared that “the power of inquiry– with process to enforce it– is an essential and appropriate auxiliary to the legislative function.” In so holding, the Court dispelled doubts raised by Kilbourn v. Thompson, 103 U.S. 168 (1880), where, as we discussed here, the Court had expressed skepticism whether Congress could issue compulsory process outside the context of its judicial functions (such as impeachment and disciplining its members). McGrain settled this issue in Congress’s favor and, along with subsequent cases, established such a deferential judicial stance toward the validity of congressional investigations  that no congressional investigation since has been held to exceed Congress’s legislative powers. After listening to the oral argument in Trump v. Mazars USA, LLP, however, one has to wonder whether this will soon change.

The McGrain case arose from a Senate resolution calling for a broad investigation into the activities of Attorney General Harry Daugherty (our old friend) and his associates at the Department of Justice, including, but by no means limited to, Daugherty’s failure to pursue legal actions against individuals linked to the Teapot Dome scandal. Suspicions regarding Daugherty’s negligence or favoritism with regard to Teapot Dome, however, were the least of the attorney general’s troubles. Senate hearings in March 1924 featured blockbuster testimony from witnesses who claimed Daugherty and his associates had received large amounts of illicit cash which were deposited in a small Ohio bank run by Daugherty’s brother, Mally (“Mal”) Daugherty. The hearings led to Attorney General Daugherty’s forced resignation on March 28, 1924 and to a subsequent testimonial subpoena requiring Mal to appear before the Senate committee investigating his brother. When Mal refused to appear, the Senate ordered him taken into custody, and he immediately petitioned for a writ of habeas corpus in the federal district court for the Southern District of Ohio. (Fun fact: the judge who initially received the habeas petition was Smith Hickenlooper grandfather of the former Colorado governor and presidential candidate).

At this point matters stood at something of a crossroads. With Daugherty’s resignation, the major figures in the scandals of the Harding administration were out of office, and the new Coolidge administration (President Harding having passed away in 1923) was eager to disassociate itself from them. On the other hand, many Republicans argued that the congressional investigations into these scandals were political and excessive, and members of the bar warned that such investigations threatened civil liberties. Chief Justice Taft and Senator George Pepper, a well regarded Republican lawyer, were among the luminaries expressing skepticism about the investigations. See J. Leonard Bates, The Teapot Dome Scandal and the Election of 1924, 60 Am. Hist. Rev. 303, 317 (Jan. 1955).

While Mal Daugherty’s case was pending in the district court, a Harvard law professor named Felix Frankfurter wrote an article in the New Republic entitled “Hands off the Investigations,” which was reprinted in the Congressional Record on the day it was published. See 65 Cong. Rec. 9080-82 (May 21, 1924) (introduced by Senator Ashurst). Professor Frankfurter “came out squarely for the unlimited power of congressional investigations.” Louis B. Boudin, Congressional and Agency Investigations: Their Uses and Abuses, 35 Va. L. Rev. 143, 146 (Feb. 1949).

Frankfurter proclaimed “[i]t is safe to say that never in the history of this country have congressional investigations had to contend with such powerful odds, never have they so quickly revealed wrongdoing, incompetence, and low public standards on such a wide scale, and never have such investigations resulted so effectively in compelling correction through the dismissal of derelict officials.” 65 Cong. Rec. 9081. He sniggered at the suggestion that the Daugherty hearings were unfair because the witnesses who  testified were disreputable (sound familiar?), noting “[i]t is the essence of the whole Daugherty affair that the Attorney General of the United States was involved in questionable association with disreputable characters.” He also rejected the notion that congressional investigations should be subject to rules of evidence or other technical limitations applicable in court, asserting that “[t]he procedure of congressional investigation should remain as it is.” 65 Cong. Rec. 9082.

Just ten days later (May 31, 1924), Mal Daugherty’s habeas petition was granted by US District Judge Cochran (to whom the case for some reason had been reassigned). The court found that the Senate investigation of the (now former) attorney general was beyond the Senate’s constitutional power. See Ex Parte Daugherty, 299 Fed. 620 (S.D. Ohio 1924). Following the reasoning of Kilbourn, Judge Cochran expressed “very serious doubt” whether the Senate had the power to issue compulsory process in any legislative investigation, but he found it unnecessary to rest his decision on that ground. Instead, he reasoned that the Senate was not conducting a proper legislative investigation, but rather it was making an improper attempt to put Harry Daugherty on trial. See id. at __ (“What the Senate is engaged in is not investigating the Attorney General’s office; it is investigating the former Attorney General.”). This was a judicial function that could only be performed by a court or by the House of Representatives pursuant to its impeachment power. The court explained:

[T]he Senate has no power to impeach any Federal officer at the bar of public opinion, no matter what possible good may come of it. It is not within its province to harass, annoy, put in fear, render unfit, or possibly drive from office any such officer, high or low, by instituting such impeachment proceedings against him. The power to impeach under the Federal Constitution resides solely in the House of Representatives, and it has power to impeach solely at the bar of the Senate.

Id. at __.

Judge Cochran’s analysis in many respects mirrors that of Judge Rao in her Mazars dissent in the D.C. Circuit. Indeed, Judge Rao makes a point of identifying her position with that of Judge Cochran. See Trump v. Mazars USA LLP, No. 19-5142, slip op. at 49-50 n. 16 (D.C. Cir. Oct. 11, 2019). She claims that the Supreme Court did not disagree with the district judge on legal principle, but “simply disagreed with the district court’s characterization of the proceedings, which were not about the wrongdoing of the Attorney General but the administration of the Department of Justice as a whole.” Id. This betrays a lack of familiarity with the McGrain case since Mal Daugherty had no connection to the Department of Justice other than his knowledge of his brother’s wrongdoing.

In any event, Judge Cochran’s decision was music to the ears of Harry Daugherty’s defenders and critics of the congressional investigations. One can easily imagine that the Coolidge administration was tempted to endorse the decision (which would have undermined future congressional oversight) or at least to decline to get involved on the Senate’s side. Instead, however, Harlan F. Stone, Daugherty’s successor as attorney general, undertook to represent the Senate on appeal to the Supreme Court, thereby putting both political branches squarely on the side of congressional investigatory authority. Conveniently, though, briefing and oral argument did not take place until after the presidential election of 1924. (Stone’s opening brief was filed six days after the election).

Meanwhile, Frankfurter’s camp was preparing legal scholarship to support the Senate. In December 1924, as the McGrain case was being argued, the Harvard Law Review published a student note critical of Judge Cochran’s decision. See Note, The Power of Congress to Subpoena Witnesses for Non-Judicial Investigations, 38 Harv. L. Rev. 234 (Dec. 1924). Among other things, the note took issue with Cochran’s conclusion that the impeachment power implicitly limited the Senate’s power to conduct legislative investigations of executive wrongdoing. See id. at 238 (“Impeachment is a ponderous method of rectifying gross misconduct and consequently has been seldom employed.  By limiting the exercise of this extraordinary remedy, the Constitution could not have intended to restrict more common powers of investigation shown by experience to be necessary to the practical exercise of a federal power.”).

Although the note is unsigned, there is little doubt it reflects Frankfurter’s influence. The articles editor was Thomas G. Corcoran, a Frankfurter protege who would go on to clerk for Justice Oliver Wendell Holmes at Frankfurter’s recommendation during the 1926-27 term. (Another fun fact: Corcoran in later life became a lobbyist who notoriously once “lobbied” the Supreme Court on behalf of a client. See Bob Woodward & Scott Armstrong, The Brethren 79-86 (1979)).

A more significant piece of scholarship came from Professor Landis, Frankfurter’s Harvard colleague and frequent co-author. See James M. Landis, Constitutional Limitations on the Congressional Power of Investigations, 40 Harv. L. Rev. 153 (Dec. 1926). Landis argued that the meaning of the legislative power conveyed by the Constitution could only be understood in light of historical experience; he then marshaled British and colonial history to demonstrate that “[a] legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin.” Id. at 159. When combined with the unbroken practice of legislative investigations since the adoption of the Constitution, he concluded that “[t]he Daugherty inquiry of 1924 is thus a direct descendant of a more ancient lineage, ancient enough, when constitutional history begins for the United States in 1789, to demand recognition as a convention entitled to constitutional standing.” Id. at 193-94.

Many years later, during the conference in Watkins v. United States, 354 U.S. 178 (1957), then Justice Frankfurter remarked that “Landis’s article on investigations turned the trick in the Daugherty case in this Court and led it to uphold the powers of Congress.” The Supreme Court in Conference (1940-1985) 299 (Del Dickinson, ed. 2001). Whether this is exactly true or not (see below), Landis’s article seems to have had a powerful effect on legal thinking about the subject of congressional investigations by “completely demolish[ing]” the historical and logical foundations of Kilbourn‘s cramped reading of the legislative power of inquiry. Boudin, 35 Va. L. Rev. at 147; see also id. at 165-66.

Several factors thus converged to support the Senate’s position before the Supreme Court in McGrain. Politically, there was little motivation for anyone to defend the conduct of the Harding administration, particularly after President Coolidge won reelection in 1924. The fact that both the executive and legislative branches agreed on a common legal position likely weighed heavily in the Senate’s favor. The intellectual firepower of Harvard law school surely did not hurt either.

Nonetheless, it appears that the outcome in McGrain was, like Waterloo, a damn close run thing. Although it was argued in December 1924, it was not decided until January 1927. (Another strike against Professor Jonathan Turley’s theory that the courts will resolve such issues quickly). This in itself suggests more internal dissension than betrayed by the ultimate unanimous decision (Harlan Stone, who was appointed to the Court during the intervening period, did not for obvious reasons participate). Cf. McGrain, 273 U.S. at 154 (“We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy.”).

According to this March 1927 letter to Frankfurter from John Gorham Palfrey, a longtime aide to Justice Holmes, in an earlier vote on the case Justices Holmes and Brandeis were “standing out against the whole bunch,” apparently meaning that the other justices would have affirmed the district court. Although Palfrey indicated that Holmes had read “Jim’s article” and that Brandeis had distributed it to other justices including Justice Van Devanter, who was assigned the opinion, he did not believe that was the real reason for the majority switch. Instead, “Van Devanter, who has been away behind on his opinions, go around to writing the opinion for the majority a couple months ago– and found he couldn’t do it to reach the majority result.”

Whatever the true reason, Van Devanter ultimately produced a strong and unanimous opinion in support of a broad congressional investigatory authority, one that has driven a largely deferential judicial attitude toward congressional investigations ever since.

Until now. We will turn to that in our next post.

More Standing Confusion in Mazars/Deutsche Bank

Since my last post on standing in Mazars/Deustche Bank, the Supreme Court ordered the parties to file supplemental briefs on the question whether the political question doctrine or “related justiciability principles” bear on the Court’s consideration of these cases. These letter briefs have now been filed and, not surprisingly, none of the parties have changed their position that the case is justiciable and the Court should decide it on the merits.

It is important to note that the Court’s order was specifically focused on political question-type issues, which presumably means the Court wants to know whether there is a problem in deciding what is in substance, if not form, a dispute between the legislative and executive branches. In my interpretation, the Court was asking the Solicitor General in particular how to explain the Justice Department’s position that Article III does not permit the Court to adjudicate subpoena disputes between the branches, yet somehow allows the Court to decide exactly the same type of separation of powers issue raised by President Trump’s attack on the congressional subpoenas to third parties here.

That is a good question and the Solicitor General’s answer, IMHO, amounted to gobbledygook. Hopefully this question will be pursued in oral argument and we may discuss it further in due course. For today, however, I want to focus on the logically antecedent question of what gives Trump standing to complain about the congressional subpoenas in the first place. Although this was not the focus of the Court’s order, Trump’s lawyers spent the first page and a half of their letter brief attempting to explain why such standing exists. Their argument, however, did nothing to assuage my skepticism.

They begin by asserting that the disclosure of Trump’s “private records” or “private papers” is a “tangible” and “concrete” injury. The nature of the injury is not further explained. Is it based upon the premise that Trump owns the records or information in question? As discussed in my prior post, it is not apparent that the records in question necessarily belong to Trump personally. Indeed, the letter brief refers to “Petitioners’ private records,” but “petitioners” include corporate entities which are legally distinct from Trump. Similarly, to the extent that standing is premised on an alleged legal right to prohibit the third party accountant and banks from disclosing the information in question, such right may belong to various business entities, only some of which are even parties to the lawsuit.

The brief cites no authority for the proposition that an individual generally has standing to object to a subpoena for his private papers or financial information in the hands of a third party. It does cite Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which holds that Congress’s effort to curb the dissemination of false personal information in the Fair Credit Reporting Act does not establish that such dissemination results in a concrete harm to an individual whose information was so disclosed. How this case supports Trump’s standing is left to the imagination.

The brief also quotes United States v. Nixon, 418 U.S. 683, 696 (1974), for the proposition that “‘resistance to [a] subpoena present[s] an obvious controversy in the ordinary sense.'” Hopefully, however, an enterprising Supreme Court clerk will look up the full quote, which goes like this:

The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here [the matter is justiciable because] at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President.

Id. at 696-97. In Trump’s case, of course, he is not “resisting” a subpoena at all; instead, he is attempting to enlist the assistance of the courts to prohibit third parties from complying with subpoenas. Moreover, he is not claiming that those subpoenas violate either an official privilege (as President Nixon did) or a personal privilege. Instead, he argues that the subpoenas exceed the authority of the committees that issued them because those committees lack a legitimate legislative need for the information sought. True, he bases this argument in part on the idea that Congress lacks the power to enact certain legislation relating to the presidency, but he does not claim that the production of the information itself violates some legal right or privilege belonging to him.

To see the difference, consider the congressional hearing at which Trump’s former personal lawyer, Michael Cohen, testified about various legal and ethical improprieties in the conduct of Trump’s personal and financial affairs. Trump undoubtedly would have had standing to sue Cohen to prevent him from testifying as to information protected by the attorney-client privilege (why he chose not to do so is something of a mystery). But I don’t see why he would have standing to object to Cohen’s testimony on the ground that the committee’s investigation lacked a legislative purpose, any more than he could complain that the subject of the investigation fell within the jurisdiction of a different committee under the House rules. These are objections that Cohen himself could have raised, but third parties would not, at least ordinarily, be permitted to do so.

Finally, Trump’s brief cites Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975), which suggests that a third party may be able challenge a congressional subpoena for lack of a legitimate legislative purpose. As we have discussed before, however, the language in Eastland was dicta in the context of a claim that the subpoena violated the third party’s constitutional rights. As explained by another case cited in Trump’s brief, “[t]he plaintiffs have standing to challenge the legality of [congressional] subpoenas on the ground that the forced disclosure of the materials requested would allegedly violate their federal constitutional rights . . .” Bergman v. Senate Special Comm. on Aging, 389 F. Supp. 1127, 1130 (S.D.N.Y. 1975).

There are undoubtedly many cases in which an individual would be injured by a subpoena to a third party seeking private or personal information about that individual. The fact that Trump cannot identify any authority for applying the Eastland dicta outside the context of a claimed violation of constitutional right or privilege is reason to be skeptical that it applies to mere attacks on the validity of a subpoena to a third party.


Could Standing Still be an Issue in Mazars/Deutsche Bank?

When we first discussed the Mazars case (almost one year ago), I suggested that one of the issues would be whether President Trump had standing to object to congressional document subpoenas directed to third parties when he was not claiming constitutional or other privilege in the subpoenaed documents. While Trump and his companies objected to the subpoenas on the grounds that the underlying investigation lacked a legitimate legislative purpose, it was not clear that anyone other than the subpoena recipients should be able to challenge them on that basis.

However, the House did not raise standing as an issue in either the Mazars (involving a subpoena to Trump’s accounting firm) or Deutsche Bank (involving subpoenas to two banks for records relating to Trump’s finances) cases. Nor did any of the judges in those cases question standing. In her Mazars dissent, Judge Rao asserts “[a] subpoena’s force extends beyond its recipient, which the majority has implicitly acknowledged by declining to question President Trump’s standing to challenge the subpoena’s validity.” In Deutsche Bank, the Second Circuit notes “there is no dispute that Plaintiffs had standing in the District Court to challenge the lawfulness of the Committees’ subpoenas by seeking injunctive relief against the Banks as custodians of the documents. See United States Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1260 (D.C. Cir. 1973) (‘[T]he plaintiffs have no alternative means to vindicate their rights.’) (italics omitted), rev’d on other grounds without questioning plaintiffs’ standing, 421 U.S. 491 (1975).” In their Supreme Court brief, Trump’s counsel simply observe that neither the DC Circuit nor Second Circuit  questioned standing and cite a footnote in the Supreme Court’s Eastland decision for the proposition that third parties can challenge legislative purpose. Brief for Petitioners at 59 n.7 (filed Jan. 27, 2020); see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501 n. 14 (1975).

Eastland, however, involved a claim that the subpoena to a bank for an organization’s financial records violated its First Amendment rights. Here there is no claim that the subpoena violates any constitutional privilege or right; Trump simply objects to the validity of the investigation in which the subpoena was issued. As I noted in my original post, I would not read the footnote in Eastland as allowing third parties to challenge the legislative purpose of a congressional subpoena when that purpose is not relevant to an asserted constitutional privilege. And the conclusory references to Eastland  suggest that there is no other caselaw supporting the argument for standing.

In any event, Trump’s standing is premised on the idea, suggested by the Second Circuit, that the subpoenaed records belong to him, and the banks (and the accounting firm) are merely “custodians.” But it is not at all clear that this is true for many of the documents in question. As the House points out       “[m]any of the subpoenaed documents are internal bank records that the President may never have seen or even known about.” Brief for Respondents at 65 (filed Feb. 26, 2020). 

Furthermore, an amicus brief filed by two Boston University law professors points out that most of the records at issue are not Trump’s personal financial records but records of various business entities that are legally separate from him. Indeed, in many cases these entities no longer exist, no longer are owned by Trump and/or are not parties to the litigation. They argue that Trump has no rights in these corporate records and cannot assert any of his legal objections with respect to them. See Brief of Boston University School of Law Professors Sean J. Kealy and James J. Wheaton as Amici Curiae in Support of Respondents at 23-26 (filed Mar. 3, 2020). They also argue that even those entities which are parties to the litigation cannot assert claims based on alleged lack of legitimate legislative purpose because those claims are founded in separation of powers concerns which have no possible application to these business organizations. Id. at 27-29; see also Brief for Respondents at 65 (“The fact that the President is the principal owner of the Trump Organization cannot provide it immunity from Congressional investigation.”).

All of which suggests to me it remains possible that the Court could dispose of this case for lack of standing (which, of course, is a non-waivable jurisdictional requirement). The chief justice will undoubtedly want the Court to speak with one voice if at all possible, and standing might be the way to achieve that result. I suspect, moreover, that the justices will have qualms about opening up the federal courts to litigants seeking to delay and disrupt congressional investigations, a point that was well argued by an amicus brief filed on behalf of former House general counsels and congressional staff. See Brief of Former House General Counsels and Former Congressional Staff as Amici Curiae Supporting Respondents (filed Mar. 4, 2020).

We will see if standing comes up in the (telephonic) oral argument now scheduled for May 12.