As part of their investigations into banking practices, money laundering in the financial sector, foreign influence in the U.S. political process, and counterintelligence threats posed by foreign financial leverage over the President, his family, and his businesses, the House Committee on Financial Services and House Intelligence Committee subpoenaed certain financial documents from Deutsche Bank and Capital One related to President Trump’s and his businesses’ finances. President Trump and his businesses sued to block Deutsche Bank and Capital One from complying. The House Committee on Financial Services and the House Intelligence Committee both intervened to defend their subpoenas.  The U.S. District Court for the Southern District of New York heard oral arguments and subsequently denied the Plaintiffs’ motion for a preliminary injunction and denied a stay pending appeal.  President Trump and his businesses then appealed to the Second Circuit.

On July 17, 2019, CAC filed an amicus curiae brief in support of the Committees, arguing their requests are valid.  In December, the Second Circuit affirmed the district court’s order rejecting the President’s challenge to the Committees’ subpoenas for Trump’s financial records from Deutsche Bank and Capital One. Echoing our brief, the decision outlined Congress’s broad investigative authority, recognized by the Supreme Court, and held that the Committees identified valid legislative purposes for their subpoenas.  In addition, the Court held that “the public interest in vindicating the Committees’ constitutional authority is clear and substantial.” The Supreme Court granted certiorari in December 2019, and consolidated the case with Trump v. Mazars USA, LLP, a related case considering whether the House Oversight Committee can subpoena documents related to President Trump’s and his businesses’ finances from Mazars USA, LLP, a financial accounting firm.

On March 4, CAC filed an amicus brief in support of the House Committees that makes three points.  First, we described the long history of legislative investigations in the British Parliament and early American Congresses.  As early as 1792, Congress asked for records from the Washington Administration as part of its investigation of a military defeat, and numerous Members—including James Madison and other Framers—voted in favor of the inquiry.  That investigation was only the first of many other congressional investigations that have followed in the years since.

Second, consistent with this long history of congressional investigations, the Supreme Court has repeatedly affirmed Congress’s broad power to investigate, and it has reiterated that the scope of that power is co-extensive with the scope of Congress’s power to legislate.  For instance, the Supreme Court has held that Congress’s power to investigate encompasses “inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes” and “surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”

Third, the brief argued that the Committees’ request plainly serves a legitimate legislative interest.  The Committees heard information that Deutsche Bank may have provided more than $2 billion in loans to President Trump despite bank officials’ concerns about those loans, allegations that shell companies used illicit funds to purchase Trump properties, and numerous reports of the intersection between President Trump’s business interests and Russia-linked entities.  Given this, obtaining the financial documents the Committees have requested would aid their consideration of whether and how to legislate with respect to lending practices, money laundering, and fraud at financial institutions, as well as conflicts of interest that might exist if foreign actors were to have leverage over President Trump, his family, and his businesses.

The brief also responded to President Trump’s argument that this investigation is improper because, in his view, all ethical requirements applied to the President are per se unconstitutional.  That argument has no basis in the Supreme Court’s or any court’s case law and, in any event, we argued the Court should not decide the constitutionality of hypothetical legislation.  Congress may investigate so long as the investigation is not plainly irrelevant to a lawful purpose.  The investigation at issue in this case easily satisfied that deferential standard.

The Supreme Court held, in accordance with precedent and with centuries of history, that Congress has broad investigatory powers and can investigate the executive branch and even the President himself. In addition, the Court rejected the heightened standard for presidential subpoenas put forward by the President and Solicitor General, determining that standard applies only to official communications that might be subject to executive privilege.

However, the Court also held that subpoenas seeking records involving the president must meet a somewhat more stringent standard than other congressional subpoenas. For such subpoenas, the Court held that courts must balance several factors: whether Congress can get the information from a non-presidential source, whether Congress’s reasons are sufficiently valid for requesting the documents, and whether there are any special burdens on the president resulting from complying with the subpoenas. The Court remanded this case to the lower courts to apply this standard to the specific congressional subpoenas at issue.