May 20, 2019 saw Amit P. Mehta, federal court Judge in District of Columbia, put up a 41 page memo opinion for judgment in favor of the House Oversight Committee and against Trump Plaintiffs. The court denied Plaintiffs’ request for a stay pending appeal. Below are some of the best parts of that memo. Enjoy ;)
- Congress’s Broad Investigative Authority
Article I of the Constitution grants Congress all “legislative Powers.” U.S. Const. art. I, § 1. Although Article I does not say so expressly, the power to secure “needed information . . . has long been treated as an attribute of the power to legislate.” McGrain v. Daugherty, 273 U.S. 135, 161 (1927). As the Supreme Court observed in McGrain, the power to investigate is deeply rooted in the nation’s history: “It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures.” Id. “There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation.” Quinn v. United States, 349 U.S. 155, 160 (1955).
Related to Congress’s legislative function is its “informing function.” The Supreme Court has understood that function to permit “Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). “From the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.” Id. (citing James M. Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 168–194 (1926)). The informing function finds its roots in the scholarship of President Woodrow Wilson, which the Court first cited in United States v. Rumely:
It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. 345 U.S. 41, 43 (1953) (quoting WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS, 303).
Thus, though not wholly distinct from its legislative function, the informing function is a critical responsibility uniquely granted to Congress under Article I. See Landis, 40 HARV. L. REV. at 205 n.227 (describing the informing function as “implied and inherent” within the legislative function).
In furtherance of these duties, Congress’s power to investigate is “broad.” Watkins, 354 U.S. at 187. “It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.” Id. In short, “[t]he scope of the power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Barenblatt v. United States, 360 U.S. 109, 111 (1959).
“The public is, of course, entitled to be informed concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals.”
The case law makes clear that “motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly’s legislative purpose is being served.” Watkins, 354 U.S. at 200. In Watkins, the petitioner “marshalled an impressive array of evidence that some Congressmen have believed that” their duty “was to bring down upon himself and others the violence of public reaction because of their past beliefs, expressions and associations.” Id. at 199. This evidence did not, however, carry the day with the Supreme Court because Congress also had a legitimate legislative purpose for its investigation. Id. at 200. Likewise, in McGrain, the Court rejected a lower court’s decision echoing the arguments Plaintiffs advance here: “The extreme personal cast of the original resolutions; the spirit of hostility towards the then Attorney General which they breathe; that it was not avowed that legislative action was had in view until after the action of the Senate had been challenged; and that the avowal then was coupled with an avowal that other action was had in view—are calculated to create the impression that the idea of legislative action being in contemplation was an afterthought.” McGrain, 273 U.S. at 176. The Court held that the lower court was “wrong,” because “the subject [of the investigation] was one on which legislation could be had.” Id. at 177. In short, as long as there is a facially valid legislative purpose for the investigation, Congress acts within its constitutional authority. That is the case here.27
27 For this same reason, the forceful dissenting statements of the Ranking Member of the Oversight Committee, Congressman Jim Jordan, do not change the court’s calculus. The Ranking Member views the Committee’s investigation as without legislative purpose, and its sole design to harass and embarrass the President. See Second Decl. of William S. Consovoy, ECF No. 34; Ex. B, Letter from the Honorable Jim Jordan, Ranking Member, House Comm. on Oversight & Reform, to the Honorable Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform (May 15, 2019). But, again, so long as lawmaking could follow from the Committee’s investigation, any attendant political purpose does not make the inquiry unconstitutional.
3. Pertinency of the Records Request
Plaintiffs’ third and final challenge rests on the “pertinency” of the records requested from Mazars. See Pls.’ Reply at 12–14. This argument takes multiple forms, none of which are persuasive.
To begin, according to Plaintiffs, for the Mazars subpoena to be valid the records sought must be “‘reasonably relevant’ to [the subpoena’s] legitimate legislative purpose,” and the records demanded fail that test. Id. at 13 (citing McPhaul, 364 U.S. at 381–82). This argument suffers from two problems. The first is that Plaintiffs conflate the concept of “pertinency” with the notion of “relevancy” as used in civil proceedings. “Pertinency” does not require the court to ask, as it would in a civil discovery dispute, whether the documents requested are likely to yield useful evidence. Instead, pertinency “is a jurisdictional concept . . . drawn from the nature of a congressional committee’s source of authority.” Watkins, 354 U.S. at 206. The concept appears most often in the context of a criminal conviction for contempt of Congress, in which a person has refused to comply with a subpoena or answer questions posed at a hearing. Pertinency, in this setting, is an element of criminal contempt. See 2 U.S.C. § 192 (making it a misdemeanor for a person summoned as a witness before Congress either to not appear or, if “having appeared, [to] refuse to answer any question pertinent to the question under inquiry . . .”) (emphasis added). The pertinency inquiry therefore asks whether the question posed to a witness is one that fell within the scope of the Committee’s investigative authority, which typically is defined by the resolution authorizing the investigation. See Watkins, 354 U.S. at 207–10; Sinclair, 279 U.S. at 292 (stating that, under the contempt statute, “a witness rightfully may refuse to answer where the bounds of the power are exceeded or where the questions asked are not pertinent to the matter under inquiry”). This is not a contempt case and therefore the pertinency inquiry, properly understood, has no role here.
But even if the court were to treat pertinency as akin to a relevance determination, that test is satisfied here. The standard adopted by the Supreme Court is a forgiving one. The subpoenaed records need only be “not plainly incompetent or irrelevant to any lawful purpose [of the Committee] in the discharge of its duties.” McPhaul, 364 U.S. at 381 (cleaned up). Here, the Oversight Committee has shown that it is not engaged in a pure fishing expedition for the President’s financial records. It is undisputed that the President did not initially identify as liabilities on his public disclosure forms the payments that Michael Cohen made to alleged mistresses during the presidential campaign. Furthermore, Michael Cohen has pleaded guilty to campaign finance violations arising from those payments. These events, when combined with Cohen’s testimony and the financial statements he supplied, make it reasonable for the Oversight Committee to believe that the records sought from Mazars might reveal other financial transgressions or improprieties. As already discussed, it is not unreasonable to think that the Mazars records might assist Congress in determining whether ethics statutes or regulations need updating to strengthen Executive Branch accountability, promote transparency, and protect against Executive Branch officials operating under conflicts of interest. Additionally, the Mazars records could provide the Oversight Committee with clues about the President’s foreign interests or sources of foreign income, if any, which would assist in determining Congress’s obligations under the Foreign Emoluments Clause. This concern is not a new one. In other letters seeking records, one sent to the Trump Organization and the other to the GSA, Chairman Cummings expressly stated that the records sought would be useful in assessing the President’s compliance with the Foreign Emoluments Clause. See n. 7 & 8, supra. The records from Mazars likewise could advance this legislative purpose. Pertinency, to the extent it may apply, is thus satisfied.
Two more arguments remain. First, Plaintiffs insist that the Oversight Committee cannot be seeking pertinent material because the legislative actions contemplated “extend to an area in which Congress is forbidden to legislate,” Quinn, 349 U.S. at 161. See Pls.’ Reply at 15–16. For example, Plaintiffs argue that H.R. 1 is unconstitutional insofar as it adds qualifications for the presidency beyond those contained in Article II of the Constitution. See id. at 16. More broadly, Plaintiffs maintain that any regulation of the “President’s finances or conflicts of interest” would be unconstitutional for the same reason. Id.
Plaintiffs’ contention flies in the face of decades of legislation covering the President. For example, the Ethics in Government Act requires the President to report the source, type, and amount of certain income and assets to the Office of Government Ethics. See 5 U.S.C. App. 4 §§ 101(a), (f); id. §§ 102(a), (b); id. § 103(b). The Stop Trading on Congressional Knowledge Act of 2012 provides that no “executive branch employee,” including the President, may use “nonpublic information derived from such person’s position” “as a means for making a private profit,” and further states that “executive branch employees,” including the President, “owe a duty arising from a relationship of trust and confidence to the United States Government and the citizens of the United States with respect to material, nonpublic information derived from [their] position.” Pub. Law No. 112-105 § 9. And, the Presidential Records Act “directs the President to ‘take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records.’” Armstrong v. Bush, 924 F.2d 282, 285 (D.C. Cir. 1991) (citing 44 U.S.C. § 2203). Plaintiffs’ argument, if accepted, would wipe out some, and perhaps all, of these statutes.
But there is an even more fundamental problem with Plaintiffs’ position. It is not the court’s role in this context to evaluate the constitutionality of proposed or contemplated legislation. Doing so would go beyond its limited powers. The Supreme Court said as much in Rumely: “Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to tread warily in this domain.” 345 U.S. at 46. Consequently, courts must avoid declaring an investigation by Congress unconstitutional, unless “no choice is left.” See id. In this case, not only is there no need to confront difficult constitutional questions, it would be improper to do so. Federal courts do not “render advisory opinions. For adjudication of constitutional issues ‘concrete legal issues, presented in actual cases, not abstractions’ are requisite.” United Pub. Workers of Am. (C.I.O.), et al., v. Mitchell, et al., 330 U.S. 75, 89 (1947) (citations omitted). The court here faces only abstract constitutional questions about prospective legislation that is not yet law. The court cannot declare a congressional investigation unconstitutional in such ill-defined circumstances.
Finally, Plaintiffs suggest that the court has the authority to “narrow overbroad [congressional] subpoenas,” and should consider doing so here. Pls.’ Reply at 13. But the federal courts enjoy no such power. “A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress.” Townsend, 95 F.2d at 361 (citation omitted). “There is no requirement that every piece of information gathered in such an investigation be justified before the judiciary.” McSurely, 521 F.2d at 1041. The court therefore cannot “engage in a line-by-line review” of the Mazars subpoena and narrow its demands. Bean LLC, 291 F. Supp. 3d at 44; see also Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17, 20 (D.D.C. 1994) (“This [c]ourt . . . has no authority to restrict the scope of the Ethics Committee’s investigation.”).
Plaintiffs have cited no case since Kilbourn from 1880 in which the Supreme Court or the D.C. Circuit has interfered with a congressional subpoena—because it either intrudes on the law enforcement prerogatives of the Executive or Judicial branches, seeks personal information unrelated to a legislative purpose, or demands records that lack “pertinency.” This case does not merit becoming the first in nearly 140 years.
As for irreparable harm, this court has recognized that “the disclosure of confidential information is, by its very nature, irreparable ‘because such information, once disclosed, loses its confidential nature.’” Robert Half Int’l Inc. v. Billingham, 315 F. Supp. 3d 419, 433 (D.D.C. 2018) (citations omitted). That concern is somewhat mitigated here, however, because of the recipient of the records. Unlike Robert Half Int’l, where the challenged disclosure was to a market competitor, the disclosure here is made to Congress, and the D.C. Circuit has held that “courts must presume that the committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties.” Exxon, 589 F.2d at 589 (citation omitted). That said, the court is not naïve to reality—a reality confirmed by the fact that the Oversight Committee has said that the decision whether to make the records public lies within its discretion. See Hr’g Tr. at 59. Thus, there is a chance that some records obtained from Mazars will become public soon after they are produced. The second factor of irreparable harm therefore favors a stay.
The final two factors—the balance of equities and the public interest—merge when, as here, “the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). These factors tip the balance in favor of denying a stay. In Exxon, the plaintiff had challenged Congress’s right to obtain records from the Federal Trade Commission that contained its trade secrets. 589 F.2d at 586–87. The district court denied the plaintiff’s request for injunctive relief. In affirming that decision on appeal, the D.C. Circuit held that the public interest favored Congress having access to the records. The court stated that the plaintiff’s burden to obtain injunctive relief was “considerably heightened by the clear public interest in maximizing the effectiveness of the investigatory powers of Congress . . . It would, then, require an extremely strong showing by the appellants to succeed in obtaining an injunction in light of the compelling public interest in denying such relief.” Id. at 594 (emphasis added). The court concluded: “To grant the injunction appellants request, this court would be required to interfere with the operation of Congress, and also to depart from traditional doctrine concerning the availability of equitable relief.” Id. The same would be true in this case.
The court is well aware that this case involves records concerning the private and business affairs of the President of the United States. But on the question of whether to grant a stay pending appeal, the President is subject to the same legal standard as any other litigant that does not prevail. Plaintiffs have not raised a “serious legal question[] going to the merits.” Population Inst., 797 F.2d at 1078. And, the balance of equities and the public interest weigh heavily in favor of denying relief. The risk of irreparable harm does not outweigh these other factors. The court, therefore, will not stay the return date of the subpoena beyond the seven days agreed upon by the parties.
VI. CONCLUSION
For the foregoing reasons, the court will enter judgment in favor of the House Oversight Committee and against Plaintiffs. The court denies Plaintiffs’ request for a stay pending appeal. A separate final order accompanies this Memorandum Opinion.
l-to-r: H.Res257 Sponsors on Oversight Cmte.
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