Point of Order

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.

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 17^thcentury. 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.