Trump v. Mazars USA, LLP (Mazars II)
Since 2019, when the House Committee on Oversight and Reform heard testimony that President Trump may have failed to disclose certain financial holdings, the Committee has been considering new legislation that would, among other things, require financial disclosures from the president, require presidents to divest from financial holdings to prevent conflicts-of-interest, and regulate the tracking of presidential emoluments. To facilitate its investigation into whether such legislation is necessary and how best to draft it, the Committee subpoenaed President Trump’s accounting firm, once in 2019 and again in 2021, for financial records that would aid the investigation. Trump objected that the subpoena was “invalid and unenforceable.” His claim was rejected in the lower courts, and the Supreme Court ultimately agreed to hear the case. In July 2020, the Court recognized that Congress has broad authority to investigate the executive branch but set forth a new four-factor test for evaluating congressional subpoenas involving a sitting president. The Court remanded the case to the lower courts to apply that standard in this case.
In August 2021, the D.C. District Court heard the case on remand and upheld the subpoena in part. Both parties subsequently appealed the ruling.
On September 30, 2021, CAC filed an amicus brief in support of the House Committee that makes four main points. First, we describe the long history of legislative investigations in the British Parliament and early American Congresses. As early as 1792, Congress asked for and received records from the Washington Administration as part of its investigation of a military defeat. Numerous members of Congress—including James Madison and other Framers of the Constitution—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 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, permitting Congress to subpoena a former president does not raise the same separation of powers concerns as permitting it to subpoena a sitting president. Trump argues that a request for a former president’s documents still invites a conflict between the branches and therefore asks the court to apply the four-part test the Supreme Court established when it first considered this case. However, the Court crafted the Mazars test to avoid enforcing subpoenas that create a “clash between rival branches of government.” Because the subpoena at issue here does not target the records of a sitting president, this concern is not present. The Constitution supports this view by giving former presidents no role in the ongoing institutional relationship between the branches. Furthermore, the brief discusses precedent for treating former presidents and sitting presidents differently. In fact, federal courts have repeatedly required disclosure of potentially privileged records from former presidents, holding that the public interest justifies such disclosure.
Finally, the brief argues that the court must uphold the congressional request for records so long as it is not “plainly incompetent or irrelevant to any lawful purpose [of Congress] in the discharge of [its] duties.” As the brief explains, the subpoena here meets this standard because Congress has an interest in obtaining information about the former president’s finances to guide its consideration of whether and how to strengthen financial disclosure laws and impose new restrictions on presidential conflicts-of-interest.
September 30, 2021
CAC files amicus brief in the D.C. Circuit Court of Appeals.D.C. Cir. Amicus Br.