OP-ED: Congress Has Every Right to Keep Investigating Trump After He’s Gone
On Friday, the Supreme Court postponed oral arguments over a House request to obtain the full, unredacted Mueller report after an attorney for House Democratic leadership suggested that the Judiciary Committee would need to reevaluate its inquiry in January after the new Congress begins and Joe Biden becomes president. Importantly, however, after being stymied for the past two years by delay tactics and slow-moving courts in this and other critical investigations of Trump-era corruption, the new Congress does not need to end its investigations. Congress has sound legal justification to continue to seek information regarding President Donald Trump’s finances, the testimony of high-level Trump officials, and the full, unredacted Mueller report in the new year.
Let’s start with Trump’s finances. As I’ve written before, as part of Congress’ investigations into Trump’s financial entanglements and failures to disclose his financial holdings, Congress subpoenaed various documents from Trump’s accounting firm, Mazars, and two banks, Deutsche Bank and Capital One. Though Congress issued these subpoenas in the spring of 2019, these subpoenas have been mired in litigation that has effectively allowed Trump to obstruct them. Indeed, the cases went all the way up to the Supreme Court, which ruled in July that Congress can lawfully issue subpoenas for the president’s personal records so long as they meet a heightened standard that takes into account the separation of powers principles at stake. But the court failed to resolve the question of whether these subpoenas met that standard, instead sending that question back to the courts of appeals, where the cases remain pending.
But just because Trump is leaving office in January does not mean that Congress cannot continue to seek these materials. After all, these subpoenas concern Congress’ power to, as the Supreme Court said in July, “conduct inquiries to obtain the information it needs to legislate effectively.” Specifically, the House is seeking this financial information to investigate issues ranging from whether to strengthen federal financial disclosure laws to how to combat foreign interference in our elections. Those issues are just as legitimate topics for legislation in 2021 as they were in 2019. And it would be just as relevant to understand Trump’s and his businesses’ finances for the purpose of crafting legislation on those topics next year as it would now. The same vulnerabilities to our election system, and the same ability of future presidents to avoid complying with financial disclosure laws, remain even once Trump is no longer in office.
To be sure, the House is not a continuing body, and the current House exists only until Jan. 3, 2021, at which point its ongoing investigations end, its subpoenas expire, and a new House is sworn in. But on Jan. 3, the House can simply reissue these subpoenas for the same legislative purposes it did last year and continue to seek that information in court. In fact, many of the arguments concerning the special solicitude reserved for the president and his materials will no longer be as salient once Trump is out of office, so these cases should be able to be resolved much more quickly.
Notably, Congress has also subpoenaed the Internal Revenue Service for Trump’s tax returns as part of its investigation into the way that the IRS audits and enforces the federal tax laws against the president. That subpoena is languishing in federal district court and will likely not be addressed by the time this congressional term ends. But again, the new Congress can simply reissue the subpoena in January, because its efforts to investigate the IRS auditing system will still be relevant. In fact, the only reason this subpoena is still outstanding is because Treasury Secretary Steven Mnuchin has refused to comply and has fought it in court. President Biden’s Treasury secretary could decide to be more cooperative, which might speed resolution of this case.
In addition to these financial cases, Congress has also been investigating matters pertaining to the Mueller report, in which special counsel Robert Mueller concluded that Russia interfered in the 2016 election and demonstrated that Trump attempted to obstruct his investigation of that interference. Specifically, Congress has sought the testimony of Don McGahn, the former White House counsel, who was a central figure in at least two incidents considered in that investigation: Trump’s attempt to fire Mueller in June 2017 and Trump’s effort to get McGahn to issue a false statement about the attempted firing in February 2018. For a year and a half, the Trump administration has fought this subpoena, asserting a theory of absolute immunity for the president’s close advisers that no court has ever approved. The D.C. Circuit Court of Appeals is currently considering the case, en banc, on the question of whether Congress has the legal right to bring an action in court to enforce this subpoena.
In its most recent filing, the Department of Justice argued that the case will be moot by the time the court hears argument in February because the subpoena will have expired. It is true that the House will need to reissue that subpoena at the start of the next term in order to continue to seek his appearance. Whether that means the case is moot is an open question: There is a strong argument that because of the likelihood that these types of disputes will repeat themselves, and because of the difficulty of resolving such a case within a two-year congressional term, the case is not actually moot and the House can see it through. But even if it is moot, Congress could easily reissue this subpoena at the start of the next term and take the case back to court to seek his testimony.
Congress would have solid legal justification for doing any of this. To be sure, the primary reason Congress sought McGahn’s testimony during this congressional term was to decide whether to impeach Trump for obstruction of justice. Impeachment, of course, will be a less urgent reason to continue such an investigation. But there is another good reason to request McGahn’s testimony: an investigation into legislation concerning the independence of the Department of Justice and its investigations. Even a new Congress would have ample reason to inquire into the ways in which Trump sought to interfere with Mueller’s investigation in order to try to determine what new legislation, including potential reforms to the current special counsel statute, might prevent such interference in the future.
Finally, the House has also sought the portions of the Mueller report that were redacted as grand jury materials from a district court judge in Washington. Its theory for obtaining those materials during this Congress was that the federal rules of criminal procedure allow a district court to release such materials as part of a “judicial proceeding,” and a possible impeachment of the president constituted such a proceeding. That theory will likely take a back seat in a new Congress given that impeachment will no longer be at the forefront, which is probably why the Supreme Court granted the House’s motion to postpone oral argument in this case that had previously been scheduled for Dec. 3. But, as with McGahn’s testimony, the new Congress could have an alternative reason for seeking these redacted materials: enacting legislation to prevent foreign interference in our elections and to prevent presidential obstruction in Department of Justice investigations. And there are strong arguments that district courts have inherent authority to disclose grand jury materials, although admittedly courts are divided on the issue. A new DOJ could also cooperate rather than maintaining the current Justice Department’s unprecedented obstruction that flies in the face of Watergate-era precedent.
In short, Congress has many valid justifications for continuing to seek information concerning Trump’s financial entanglements, as well as further information about the Mueller report, in a new Congress. Just because Trump has managed to delay resolution of these cases for the past two years does not mean that Congress should be forever prevented from seeing the materials it has sought. If the new Congress wishes to continue pursuing those materials, it has the legal authority, and plenty of justifications, to do so.