What to Look For in the Mazars Oral Argument

Tomorrow the Mazars subpoena case will be argued before the D.C. Circuit (Judges Tatel, Millett and Rao). In this appeal, President Trump (in his private capacity) has advanced a novel and audacious theory in support of his contention that the congressional subpoena at issue lacks a “legitimate legislative purpose.” Trump is asking the D.C. Circuit to reverse the decision of the district court, which denied Trump’s application for an injunction to prevent Mazars, his accounting firm, from producing financial records responsive to the subpoena.

As Judge Mehta pointed out in his decision below, the legal standards employed by the courts to review congressional subpoenas and investigations are generally so deferential that they “do not substantially constrain Congress.” Rather than fighting this proposition head on, Trump’s lawyers focus primarily on seeking a carve-out from Congress’s broad investigatory and oversight authority for those who hold constitutional offices (i.e., the president and Supreme Court justices).

The lynchpin of this argument is the distinction between Congress’s legislative and judicial powers. Although it has long been understood that Congress must have some ability to obtain information needed to consider and craft legislative measures, the scope of this power was once highly controversial. Following the Supreme Court’s decision in Kilbourn v. Thompson, 103 U.S. 168 (1880), which stressed that Congress, unlike the British Parliament, was not a court of general jurisdiction, it was widely believed that Congress’s authority to compel the production of information for legislative purposes was limited at best. This reading of Kilbourn, however, was undermined by later Supreme Court cases beginning with McGrain v. Daugherty, 273 U.S. 135 (1927). These subsequent cases, Judge Mehta noted, render Kilbourn “largely impotent as a guiding constitutional principle.”

Trump attempts to revive Kilbourn for a limited purpose. His theory goes something like this. Congress generally has broad legislative and oversight authority with respect to the departments and agencies of government, including offices created by statute. With respect to constitutional offices, however, Congress’s legislative authority is “severely constrained.” Trump Br. at 4, 38. Thus, Trump claims that Congress cannot rely on its legislative authority to seek his financial records because these records are not relevant to a subject on which legislation may be had.

To be sure, Trump acknowledges that Congress also has powers of a judicial nature. But, following Kilbourn, he stresses that these are not of general scope, but are limited to those areas expressly identified in the Constitution, namely judging elections, disciplining members, and, most importantly, impeachment. For those who hold constitutional offices, therefore, impeachment is the only method (Trump argues) by which Congress can investigate alleged wrongdoing.

Thus, “[w]hile Congress could presumably use subpoenas to advance these non-legislative powers, the Committee has not invoked them.” Trump Br. at 45. In fact, Trump takes pains to demonstrate that Speaker Pelosi has disavowed any intent to go down the path of impeachment. Trump Br. at 47-48.

The novelty of this argument is illustrated by the fact that one of the principal “authorities” cited in Trump’s brief is a three-page law student note that is more than a century old. See Note, Congressional Power to Punish for Contempt, 30 Harv. L. Rev. 384 (1917) (cited in Trump Br. at 17-18). The apparent utility of this note from Trump’s perspective is that it vividly distinguishes congressional contempt in the context of impeachment from that in the context of legislative oversight:

A committee of the House considering an impeachment is like a Grand Jury hearing evidence which may lead to the return of an indictment– it is a judicial body and it is one provided for by the Constitution. It must surely have the power to call witnesses, and the power is of little avail if these witnesses may contemptuously refuse to respond, or may be influenced or intimidated by outside contempts of the body before whom they are testifying. If the House is to sit in a judicial capacity, it must have the protection that a court has.

Note, 30 Harv. L. Rev. at 385. Yet even this note, which predates McGrain, concludes that “[t]he power to legislate . . . by necessary implication include[s] the power to examine witnesses and to compel them to respond by contempt proceedings.” Id. at 386.

Why would the Trump team rely on what seems like a very long shot argument? The short answer is I don’t know, but three possibilities come to mind. First, Trump’s lawyers may simply believe this is the best argument available to them. Second, it may be thought that stressing the lack of impeachment proceedings helps Trump’s cause beyond the confines of this particular case (e.g., with public opinion and/or with courts that will be ruling on more difficult subpoena enforcement issues in the months ahead). Third, Trump’s legal team may believe that advancing a bold legal theory is the best way to get the Supreme Court to grant certiorari, which strings out the proceedings even if it is unlikely to deliver an ultimate victory.

The two things to look for in tomorrow’s argument: (1) how much interest does the panel show in impeachment and why the House has declined to initiate impeachment proceedings to date, and (2) whether Judge Rao (the lone Republican appointee) seems at all open to Trump’s arguments. A unanimous panel opinion will make further review less likely.

Why the Mazars and New York Bank Cases are Moving So Fast, and Why Others Will Not

On Monday, May 20, 2019, Judge Mehta dismissed Trump v. Committee on Oversight and Reform, No. 19-civ-01136 (D.D.C.). The judge’s ruling came just four weeks after President Trump (in his personal capacity) and several of his businesses filed suit to enjoin enforcement of a congressional subpoena to Mazars, an accounting firm that had worked for the Trump companies.  This quick resolution may have surprised some observers because legal experts have been predicting that legal fights between the administration and Congress are likely to drag on for many months if not years and could well be still in litigation when this congress expires in January 2021.

It is important to understand, however, that the Mazars case (and the case in New York which Trump seeks to block congressional subpoena to banks for his financial records) are in a very different procedural posture from other ongoing information disputes (such as those over the Mueller report and related documents, tax returns, or the testimony of current or former administration officials). Mazars and the New York banks are third parties that have indicated they will comply with the congressional subpoenas unless ordered to do otherwise by a court. Therefore, it is Trump’s legal team which needs judicial intervention to alter the status quo, whereas in the other disputes Congress will likely be in the position of asking for judicial assistance.

In the Mazar and New York bank cases, Trump’s legal team initially asked for emergency judicial relief (i.e., a TRO) in order to prevent the cases from becoming moot by virtue of the third parties complying with the subpoenas. In both cases, however, the House Counsel’s office agreed to postpone the return date for the subpoenas until 7 days after a district court ruling on the motion for a preliminary injunction, thereby rendering it unnecessary to have a TRO. As part of the same agreement, the parties agreed to an expedited schedule for briefing and oral argument (which both courts accepted and entered as orders).

As the result of that agreement, Trump’s team was now in the position of nominally seeking expedited relief (a preliminary injunction), but actually no longer needing it so long as the court did not rule on the preliminary injunction motion. This anomaly presented itself when Judge Mehta proposed consolidating the preliminary injunction hearing with a final trial on the merits. Trump’s lawyers objected, saying that they needed more time to prepare for such a trial, and suggesting that instead the preliminary injunction hearing could be pushed back so the record could be fully developed. The House oversight committee, in contrast, had no objection to the proposed consolidation, but emphasized that the preliminary injunction hearing should go on as scheduled regardless.

Judge Mehta did in fact consolidate the merits trial with the preliminary injunction, but it is not clear this mattered much. If the judge had simply denied the preliminary injunction, Mazars would have been expected to comply with the subpoena after 7 days regardless. Presumably Trump’s lawyers would have asked for the judge to stay his ruling until a final merits decision, but they would have been in no better posture (and arguably somewhat worse) than they were as a result of the consolidation. Following the court’s ruling against them on both the preliminary injunction and the merits, they asked the court for a stay, which was denied. Now the plaintiffs’ only option is to obtain a stay from the D.C. Circuit so as to prevent the case from becoming moot before the appellate court can hear it. Had the case not been consolidated, they probably could have sought such relief from the appellate court, but it might have been even harder to get the court to intervene on a matter that was still before the district court (admittedly I am just guessing about this).

In any event, unless the D.C. Circuit issues a stay of the district court’s ruling, Mazars will be required to comply with the subpoena as early as next week. If Judge Ramos, who is presiding over Trump v. Deutsche Bank, No. 1:19-cv-03826 (SDNY) and is hearing argument today,  similarly denies Trump’s preliminary injunction motion, that case could also end within a week of the ruling unless either the district court or the Second Circuit issue a stay.

None of the other information disputes currently percolating are likely to move anywhere nearly as quickly as this. If cases are brought directly against the administration (eg, for the Mueller report or Trump’s tax returns), the congressional plaintiff will not be able to seek expedited relief (a TRO or preliminary injunction) since it will be seeking to change, not preserve, the status quo. Moreover, the executive branch defendant will have little incentive to agree to an expedited briefing or argument.

Exactly how fast a case may move at the district court level will depend on a number of factors, including the complexity of the legal issues and whether any discovery or document review is necessary to resolve the matter (going through the 1.4 million pages of Mueller documents to determine the applicability of different executive privilege claims, for example, could take a very long time). But even a case that presents a relatively straightforward legal issue is likely to take a few months with a normal briefing and argument schedule. In the Miers case, for example, Judge Bates issued his ruling in favor of the House Judiciary Committee about 4 and a half months after the action was filed.

Of course, the district court has a great deal of discretion with regard to scheduling matters. Judge Mehta clearly believed that it was important to expedite the Mazars case (even going so far as to consolidate the merits trial on his own initiative). Even there, though, the court’s reasons for acting quickly were based in part on the fact that it was being asked to interfere with the functioning of a coordinate branch of government. A district court might be less inclined to act quickly when it is being asked by the legislative branch to order the executive branch to turn over information.

Furthermore, however quickly the district court decides the case, the executive branch still has the right to appeal that decision, to seek rehearing en banc of any appellate decision, and ultimately to petition the Supreme Court for review. Even assuming that neither the en banc court nor the Supreme Court decide to hear the case, it is difficult to imagine the full process being complete in much less than a year.

One category of case that might be resolved more quickly would be enforcement actions by Congress against former executive officials like Don McGahn. These individuals are in a situation somewhat analogous to third parties like Mazars, in that they do not have (or purport not to have) a position or interest in whether or not they comply with the subpoena. On the other hand, they do purport to have an obligation to follow the president’s instructions with regard to asserting executive privilege (though opinions differ on whether such an obligation exists).

At any rate, if a district court orders such a former official to comply with a congressional subpoena, the    former official may not wish to risk possible contempt of court by continuing to defy the subpoena. Even if the Justice Department is able to obtain a stay from the district court or the court of appeals, the former official could decide that the district court’s decision is sufficient to release him from any further obligation not to comply. Thus, these cases could be resolved more quickly than direct suits against the executive branch, though probably not as quickly as the Mazars and New York bank cases.