SCOTUSblog by W. Burlette Carter 3/10/2020
Symposium: No. The founders did not want Congress doing criminal investigations – even of Trump
On March 31, the Supreme Court will hear oral argument in Trump v. Mazars and Trump v. Deutsche Bank. These consolidated cases involve subpoenas issued by three House of Representatives committees: the Committee on Oversight and Reform, the Permanent Select Committee on Intelligence and the Financial Services Committee. The subpoenas seek the personal financial records of President Donald Trump relating to periods both before and after he became president. Trump challenges them in his personal capacity and argues, among other things, that the House is violating separation of powers by impermissibly pursuing a law-enforcement function. Both the U.S. Court of Appeals for the District of Columbia Circuit in Mazars and the U.S. Court of Appeals for the 2nd Circuit in Deutsche Bank have upheld the subpoenas. But in my amicus brief, I raise a novel question of whether the committees had subject matter jurisdiction to issue the subpoenas under either House rules or the impeachment clause of the Constitution. I also argue that, unfortunately, the focus on Trump has obscured the real threat that such a broad construction of committee powers poses to the constitutional rights of ordinary American citizens.
To appreciate these concerns, one must briefly review the facts. These subpoenas arise out of various efforts by House Democrats to investigate Trump. During the 2016 campaign, unlike other candidates, Trump did not voluntarily disclose his tax returns. Rumors later swirled that they reflected financial improprieties. In 2018, Trump was publicly accused of failing to report, as a 2016 campaign contribution, a payment made on his behalf by former lawyer and business associate Michael Cohen. Allegedly, Cohen made the payment to silence a Trump mistress. In May of 2018, the director of the Office of Government Ethics, responding to a complaint from an advocacy group, concluded that the Cohen “loan†should have been reported as a campaign contribution. The director so advised the Department of Justice, but it had previously concluded that the president cannot be prosecuted while in office. As the minority party, Democrats made several unsuccessful attempts to investigate these and other matters related to Trump.
Democrats won a House majority in the 2018 election. In January 2019, through little-noticed changes contained in House Resolution 6, the House amended Rule X(3)(i), which defined “special oversight functions†of the Oversight Committee. Originally, the rule provided that the Oversight Committee would “review and study on a continuing basis the operation of Government activities at all levels with a view to determining their economy and efficiency.†The 2019 amendments struck the words “with a view to determining their economy and efficiency†and replaced them with “including the Executive Office of the President.†Another amendment eliminated the word “Government†from the name of the Oversight Committee. Instead of the “Committee on Oversight and Government Reform,†it became the “Committee on Oversight and Reform.â€
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