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On July 12, attorneys representing President Trump and the House Committee on Oversight and Reform argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Trump v. Committee on Oversight and Reform. The case is unprecedented. The sitting president of the United States and his businesses are suing a congressional committee to try to prevent that committee from obtaining documents and information from a third party—Mazars USA, Trump’s longtime accounting firm.
The committee served Mazars with a subpoena for 10 years of Trump’s financial documents on April 15, and Trump sued on April 22. The district court heard oral arguments and ruled in favor of the committee in May, finding that the committee had demonstrated a facially valid legislative purpose for its investigation and that the issuance of the subpoena was valid. As in the lower court action, Trump was represented by attorney William Consovoy, and the committee was represented by Doug Letter, general counsel for the House of Representatives.
Sometimes oral arguments at the appellate level can feel like a mundane rehash of arguments made at the district court level. This one didn’t. The parties engaged in a more robust exploration of what the appropriate standard of deference to Congress should be, given that this case involves a congressional request for information concerning the president of the United States. In particular, the discussion explored in detail whether and how a “clear statement rule” and the “constitutional avoidance doctrine” may apply to this case.
The panel, made up of Judges David Tatel, Patricia Millett and Neomi Rao, was uniformly skeptical of Consovoy’s arguments. Judge Millett’s exasperation with Consovoy came through strongly at times, and Judge Tatel interrupted him more than once to redirect the discussion toward more meaningful questions. Letter also took a bit of a beating from the judges, whose concerns seemed grounded in the lack of clear precedents and standards for evaluating what is an essentially unprecedented situation. Judge Rao focused laser-like on whether the committee’s subpoena—involving an investigation of the president—was constitutional in the absence of action by the full House.
Consovoy opens by saying that before turning to the weighty constitutional merits of the case, the court must consider the scope of the House of Representatives’ rules—specifically, that they do not provide a “clear statement” delegating authority to the House Judiciary Committee to investigate the president. If possible, he argues, the court must avoid the weightier constitutional questions that would arise from such an investigation.
Judge Millet interjects early. Is Consovoy arguing, she asks, that the House of Representatives doesn’t have the power to issue this subpoena all, or whether the House validly gave that power to the committee?
After some back and forth, Judge Tatel steps in to clarify. Consovoy’s argument, as he phrases it, is that whichever congressional body issues the subpoena must overcome both the clear statement rule and the constitutional avoidance question—without regard to its impact on the president. Regarding the clear statement rule, Judge Tatel makes clear his view that Consovoy’s reliance on the Supreme Court’s decision in Franklin v. Massachusetts and the D.C. Circuit’s decision in Armstrong v. Bush is questionable because the standard of review in those cases was quite different from the case at hand. (Franklin found that the president's actions were not reviewable under the arbitrary and capricious standard of the Administrative Procedures Act because the statute did not explicitly name the president, and respect for the separation of powers and the president’s unique constitutional position makes textual silence insufficient to subject him to its provisions; Armstrong (applied the clear statement rule by declining to apply to the president a statute creating a private right of action because it would significantly alter the balance between Congress and the president. This is a subpoena relates to rules requiring financial disclosure, Judge Tatel says—there’s no significant alteration of the balance between the president and Congress, and no arbitrary and capricious review would apply here.
Let’s assume we have to apply the clear statement rule, says Judge Tatal. The subpoena to Mazars relates to rules requiring financial disclosure. Doesn’t the Ethics in Government Act provide a clear statement that the president must make accurate financial disclosures? If the House Rules cited the Ethics in Government Act, would that be OK? Consovoy says that would be “closer,” but doesn’t concede the point.
Judge Tatel presses again: If the House rules cited the power to subpoena the president specifically, would you be making this clear statement argument? Consovoy says he would not be making “this particular argument.” The court cannot open the door to the House deposing the president and taking other intrusive actions.
But isn’t this about the subpoena to Mazars? Judge Tatel asks. Consovoy isn’t arguing that he has the power to challenge the House rules, are you? Judge Millet states that Mazars is a third party who happens to have documents the president gave them, and asks Consovoy if Trump is asserting any privilege recognized by state or common law. Yes, Consovoy says; New York law does provide a privilege between accountants and clients.
Judge Rao, speaking for the first time, moves to the question of constitutional avoidance. You’re not asserting any privilege, she asks, so what specifically is the constitutional interest of the president? The issue of whether there is legitimate legislative purpose is itself a constitutional question, Consovoy responds. If the court rules that the subpoena lacks legitimate legislative purpose, the action exceeds Congress’ constitutional power. The plaintiffs raise a number of questions about this legislative purpose, foremost among them being whether “there can be valid legislation on conflicts of interest and financial disclosures.”
But what are the separation of power interests?, Judge Rao interjects. Consovoy answers that the presidency is a special office, just like the justices of the Supreme Court: As Chief Justice Burger's concurring opinion in Nixon v. Fitzgerald states, Congress’s power to control, to regulate, to try to “conquer” the president, always raises constitutional questions. Judge Tatel interrupts to point out that Burger’s concurrence was Burger’s view, but the majority view set forth in Nixon v. Administrator of General Services says that a statute disrupts a proper balance between the branches if it prevents the executive branch from accomplishing its constitutional functions. How could financial disclosure prevent the president from accomplishing his duties? Judge Millett notes that the subpoena does not require anything from the president himself; the only entity that has to do anything under this subpoena is Mazars.
Judge Tatel indicates his view that this case is closer to Clinton v. Jones, in which the Supreme Court ruled that the doctrine of separation of powers does not require courts to stay all private actions against the president while in office, only acts in performance of particular functions of the office enjoy absolute immunity), rather than Fitzgerald (in which the Supreme Court ruled that the president has absolute immunity from liability for civil damages arising from official action taken while in office).If the arguments here are about protecting the office of the Presidency, Judge Rao adds, why isn’t the Department of Justice here making those arguments? Consovoy deflects, saying that he cannot speak to anyone else’s participation in the proceedings.
Judge Tatel turns to another of Trump’s legal arguments—that the Ethics in Government Act unconstitutionally adds to the qualifications to be president. Why, Judge Tatel asks, does financial disclosure limit anybody’s ability to run for president? The judge then pivots to a second question: Why is the fourth justification for investigation listed in the House Judiciary Chairman Elijah Cummings’ letter—whether the president has accurately reported his finances to the Office of Government Ethics—not an example of congress pursuing a legitimate legislative objective? “Because it’s law enforcement,” Consovoy responds: The committee is looking for illegality. And that, he argues, is beyond the scope of Congress’s power.
Judge Tatel counters that this is routine when Congress seeks to amend legislation? Consovoy concedes the general point but argues that the situation is different when the committee is “hyper-focused on one individual” and the relevant members have repeatedly said they seek to prove illegal conduct.
But, Judge Tatel resists, the letter also says that the committee is pursuing legislation which will be informed by the information obtained through the subpoena. Moreover, there are bills relevant to this issue pending in Congress. Consovoy counters that the court does not have to naively accept any and all draft legislation as indicative legitimate legislative purpose.
But Judge Millet cuts in sharply: So we are supposed to say that all pending legislation is a ruse? How are we to determine what is genuine? Just look at what they say, Consovoy replies. “Just look at what they say?” Judge Millet interjects. “Is that what our task is?...Don’t we have to look at everything?”
Adding to what has become analytic bludgeoning, Judge Tatel notes that both H.R. 1 and H.R. 706 have passed the House and are “directly related to the subject of the subpoena…. Do we just ignore those?” No, Consovoy says, but the committee has an obligation to look at how the investigation started.
Judge Millet asks what rule tells the court how to weigh statements by politicians, statements by Cummings, draft bills, and bill that have even passed the house? The rule is a totality of evidence, Consovoy replies, and then—to some laughter—says if the court collected the evidence on both sides of the question, “my pile is way higher.”
Consovoy is getting awfully close to asking us to divine motive, says Judge Rao, which both sides have agreed is off the table. What is the difference between motive and “real reason”? It is a question of “what” versus “why,” Consovoy says. Getting the “real reason” is about understanding what this subpoena is—which is actually a law enforcement action. If you have both legislative purpose and a law enforcement purpose, isn’t that valid, Judge Rao asks? It’s the question of which is the “primary purpose,” Consovoy responds.
Judge Millet avoids engaging the law enforcement point directly. Under this test, she says, you would have to show that the information obtained by Congress through this subpoena could not inform any proper legislation, right? Consovoy says the test is the wrong one, and that United States v. Tobin, involving an investigation by the Judiciary Committee of the Port of New York Authority, is the right precedent—constitutional avoidance doctrine shows the way here.
But, Judge Tatel pushes, a law adding to the existing financial disclosure laws a requirement to report assets and liabilities of closely held corporations is not unconstitutional, is it? Yes, it would be, Consovoy responds.
Judge Millett then poses a hypothetical.Under the Constitution, Congress sets the president’s salary (but cannot diminish it during the current term). Congress could pass a law that says in January 2021, there are two salary options: A president that complies with conflicts of interest and financial disclosure laws will get salary X, and a president that does not comply will get half that amount. Is that OK? That’s an unconstitutional condition, Consovoy begins to explain.
But Judge Millet cuts him off impatiently: It’s not a condition. After all, anyone could run for president; it’s just a matter of picking your salary. There’s no constitutional right of a Presidential candidate to a certain salary level, and there is plenty of legislation Congress could pass along these lines. Judge Millett grows more and more incredulous about the scope of Consovoy’s arguments: So in the case of the President’s conflicts of interests, she says, your view is that Congress can do absolutely nothing to protect the people of the United States and the public treasury from the president’s conflicts of interest?
Suppose I think neither the clear statement rule nor the constitutional avoidance doctrine applies here, Judge Tatel begins. These rules would authorize this subpoena, right? Yes, Consovoy agrees.
Judge Millet attempts to clarify Consovoy’s position. Is your argument, she asks, that because there has been no clear statement, the Oversight Committee has not been given any power of oversight as to the office of the President or otherwise invoked by Congress? Or is it that the committee just has not been given subpoena power over the office of the President? The former, Consovoy responds—the Oversight Committee has no power of oversight at all over the office of the President.
Judge Tatel moves on to arguments about the constitutional avoidance doctrine. Is Consovoy’s theory that the doctrine would apply to any action Congress takes? she asks. Consovoy replies that if there is doubt that the subpoena is unconstitutional, then the court must invalidate the subpoena. That ducks the question, Judge Tatel says. How do we apply this doctrine to proposed legislation that doesn’t even exist yet? Consovoy responds that Tobin answers this question.
Judge Millet returns to the question of the scope of congressional oversight, asking whether Consovoy’s argument would cover presidential candidates as well The subpoena covers the pre-presidential period—what are Consovoy’s arguments there? Consovoy indicates the distinction is not important because he is challenging the constitutional basis for the entire subpoena. So you are arguing, Judge Millett asks, that even if the rules and the subpoena were clear about the applicability of oversight authority to the office of the President, the House simply does not structurally have any power at all to oversee the office of the President in any capacity? Congress cannot react in any way to presidential corruption?
Consovoy points to the Presidential Records Act as an example. The legislation is relatively innocuous, he says, and it posed difficult constitutional cases but survived scrutiny.
The conversation returns to the merits of the legitimate legislative purpose issue. Judge Tatel questions what principle the court would be able to apply to disregard proposed legislation as merely a ruse.Consovoy says the court would have to look at all of the evidence, and that in his view the evidence is clear. The judges do not seem to agree with that conclusion.
Judge Rao, perhaps eager to be done with the extended discussion about legislative purpose, asks what Consovoy’s argument would be if the court assumes that Congress does have a legitimate legislative purpose. Is the point that there is no connection between the subpoena and the legislative purpose? Yes, Consovoy says. The subpoena seeks communications, notes, and engagement letters—there is no connection between those types of things and whether the financial disclosures are accurate. Judge Tatel says that he takes the point when applied to engagement letters, but he’s skeptical as to how it applies to communications and notes. If Congress thinks the president is inflating or deflating his assets, wouldn’t it want to look at communications with his auditing firm? Not if this is really about legislation, Consovoy replies, though a special counsel or grand jury might.
Judge Tatel points out that Congress is attempting to determine whether the existing financial disclosure laws are adequate to capture the real values of liabilities and assets, given testimony by Michael Cohen that these values have been manipulated. Consovoy responds that Congress cannot target an individual in order to correct legislation—an argument that, Judge Tatel later indicates, he finds “stunning.” Likewise, Judge Millett comments later in the hearing that Consovoy cannot equate the President with any private individual on the street.
What if Congress is investigating an office of the government, Judge Millet asks, rather than an individual? Consovoy responds that the office of the president is not part of the executive branch “in any conventional sense”—an argument that generates considerable laughter in the courtroom. Statutes that apply to offices, departments, and agencies do not apply to the president, Consovoy continues. But Judge Millett replies, clearly annoyed, that she’s not asking about a statute—the issue is that Congress is investigating possible corruption within an office of the United States government. “That sounds OK to me,” she says.
Not the office of the president, Consovoy replies.
Can Congress undertake investigations to expose corruption?, Judge Millet asks.
Not the office of the president, Consovoy replies. There’s more latitude with other government offices and agencies because they created those agencies by statute.
And then a key point about the difference between Congress’s legislative power and the impeachment power emerges: Congress has no authority to undertake a probe to expose corruption in the Office of the President?, Millet asks. “Not using its legislative powers,” Consovoy replies. (The unspoken assumption here is that the Congress can only make such inquiries as part of an impeachment proceeding—though Consovoy does not say that explicitly.)
Consovoy’s argument ends on a note of intense skepticism by Judge Millett at the idea that, when it comes to the president, Congress has no power to look at any thing to expose corruption or to make wise judgments about the use of appropriated funds. Is it really the case that when it comes to the president—unlike in the case of a private individual or any other government official—Congress can get no information and cannot ask questions? Does this mean that the president is absolutely immune from any oversight until the next election—and if the president is in his second term, then he is immune from any oversight whatsoever?
“Is that right? Is that right?” Judge Millett asks.
“It’s not,” Consovoy responds. Again, he argues that the Presidential Records Act survived constitutional review, but acknowledges that he does not have a litany of possibilities at the ready.
“I don’t want a litany, I’d like another example,” Judge Millett responds. “You must have a theory of what can be done...You want us to adopt a rule, so you must have a theory of where that rule stops and where it ends.” She’s looking for one other thing Congress could do exercise any form of oversight over the office of the president.
Consovoy responds that, in almost all fights between the president and Congress, the remedy will be political rather than judicial. When pressed by Judge Millett, he says that he is not arguing that the current case presents a political question; he is only trying to explain why the parade of horribles does not exist.
Letter takes his place at the lectern but ekes out only a sentence before Judge Tatel interrupts, apparently eager to get to what he considers to be the heart of the case: What is the standard the court should use for evaluating whether Congress is pursuing a legitimate legislative purpose when the case involves the president of the United States? This case is different from the precedent relied on by Letter and by the lower court in reaching its decision,because this case involves the president himself. Why should the court grant more deference to Congress than the President in this case? Asks Judge Tatel. Why not look objectively—rather than deferentially—at whether Congress is pursuing a legitimate legislative purpose?
Letter responds that the Speech or Debate clause means that Trump can’t really question what Congress is up to, and that the legislation Congress is pursuing might be broader in application than just the president. But his answers seem to leave Judge Tatel unsatisfied and even a bit restless.
Judge Millet asks Letter the same question she posed to Consovoy earlier: is Trump suing as the president or as a private citizen? Is this case like Clinton v. Jones, or more like Fitzgerald?
Letter argues that some of the records being sought are from before Trump was president. Of course, one cannot ignore that the subpoena is directed at records of the president. But it does not limit the president’s ability to perform his functions—it is to a third party, and there is no accountant-client privilege. Interestingly, though, Letter distinguishes the potential arguments that might be available to Trump in a different ongoing case—the Deutsche Bank/Capital One case in the Second Circuit—where the records at issue are banking records and there are at least arguments that privacy concerns might apply. (This issue will be one to watch in the Second Circuit.)
Judge Rao’s line of questioning seems to reveal her principal discomfort with the case: What evidence is there that the House has given the committee the power to investigate the president? Is there any precedent for investigating the President, or issuing a subpoena that implicates the president, without a full vote of the House? Doesn’t such an unprecedented move by a committee raise serious constitutional questions?
Letter responds that through its rules, the House has given the Oversight Committee all of the investigative powers of the House. He believes there are some precedents from the Civil War era in which the House acted as Judge Rao describes. In any event, the House operates differently now than it did long ago—these days committees have a lot more powers and responsibilities delegated to them by the full House. He emphasizes that the courts have been, and should continue to be, deferential to Congress on how it organizes its internal rules.
Judge Tatel tries to offer some clarity. The rules are sufficient to delegate subpoena and investigative authority generally, he says, but is this case different because it involves the president? Letter is adamant that the clear statement rule does not apply here, and the cases Consovoy cites are not applicable. The clear statement rule makes sense for legislation, he argues, but does not apply to investigations.
What about Tobin?, Judge Rao asks. Tobin, Letter argues, was different—it was a criminal contempt case that involved interstate compacts. There’s nothing like that in the present case.
For her part, Judge Millett asks why neither the committee in its briefings nor the district court in its decision developed arguments regarding either the clear statement rule or the question of waiver of the Emoluments Clause arguments (which were identified as one component of the committee’s investigation). Letter responds that the Emoluments Clause arguments were not waived—and notes that Judge Amit Mehta addressed them in the lower court decision—but concedes the briefing did not squarely address the clear statement rule because he did not think the argument had any merit.
Judge Tatel then turns to the substance of the investigation’s connection to a legitimate legislative purpose—can the subpoena be sustained solely on the need to expose corruption? (The district court found that a congressional investigation into illegal conduct before and during the president’s tenure in office fits comfortably within the broad scope of Congress’s investigative powers, and that Congress’s “informing function” includes the power to inquire into and publicize corruption.) Yes, says Letter. When Tatel asks whether the court needs to examine the three other justifications for the investigation, Letter replies that it doesn’t need to.
On the Emoluments Clause, Judge Rao asks whether impeachment proceedings would be more appropriate for a backward-looking inquiry such as the one being conducted by the committee? How would a statute address that issue? Letter argues that one possibility is that Congress could, in theory, decide to consent to Trump’s emoluments. (So no, impeachment is not the exclusively relevant mechanism.) Judge Millett is preoccupied with how the subpoena covers conduct both before and during Trump’s presidency—for one thing, the Emoluments Clause only applies once the president is in office. Why would the committee have legislation interests in the period for Trump was president? Letter argues that financial records are complicated and prior-year records are crucial to understanding changes in later years. Prior-year records are needed to know if the president is under the influence of a foreign power. Congress is also entitled to explore avenues even if they end up being “blind alleys.”
Judge Rao searches for limiting principles. Is the only limiting principle, she asks, that the Congress cannot abuse its powers such that the president is prevented from performing any of his Article II functions? Should the president be treated any differently from a cabinet secretary? Letter responds that this president has created this situation by choosing to mix his personal businesses with his official duties. Judge Rao once again indicates her lack of comfort with the lack of a Resolution voted on by the full House.
At the end of the day, it is difficult to see how Trump might win over this panel. But the judges’ obvious discomfort with an unprecedented set of facts—and a lack of clarity on what standards apply—makes this case more interesting than it was at the district court level. If the panel rules against the president, the question will become whether Trump will appeal the issue to the Supreme Court, and how the justices will weigh the issue in deciding whether to review it.