U.S. District Court Judge Amit P. Mehta has issued a 41-page opinion in favor of the House Oversight Committee in its subpoena of the accounting firm Mazars USA to obtain financial documents related to President Donald Trump. It is a significant victory for the Congress in its fights with the White House given the ambiguously stated legislative purpose behind the demand. However, as I testified last week before the House Judiciary Committee, Congress is likely to win such fights over legislative purpose and courts are unlikely to entertain challenges based on alleged improper or political motives by Congress. It is important however to note that this was a subpoena of a private party to gain private records of Trump as an individual. Far more difficult questions are raised by a subpoena for someone like Don McGahn who did not appear today at the House Judiciary Committee.
As I testified last week, the current argument that Congress should be presumed to have an illegitimate or purely partisan motivation is, ironically, the same type of argument that the Trump Administration has been opposing in various courts. The Trump Administration argued that lower courts wrongly assigned a discriminatory intent in reviewing his travel ban. He also continues to argue that Congress is wrong to assume a “corrupt intent” on obstruction when non-criminal motivations were detailed in the Special Counsel Report. Yet, it is now asking the court to presume the same ill-motive in rejecting any legitimate purpose behind the exercise of oversight authority.
Judge Mehta dealt directly with the issue and came to the predicted result. The court ruled “The binding principle that emerges from these judicial decisions is that courts must presume Congress is acting in furtherance of its constitutional responsibility to legislate and must defer to congressional judgments about what Congress needs to carry out that purpose. To be sure, there are limits on Congress’s investigative authority. But those limits do not substantially constrain Congress.”
When I testified in the House Judiciary Committee there was a curious moment when Chairman Jerry Nadler asked the final question to Professor Neil Kinkopf. He stated that I have denied that the Committee could show any legitimate legislative purpose to investigate possible crimes or abuse by a sitting president and whether he agreed with me. Kinkopf responded that he vehemently disagreed with me and such a position is preposterous. As the Chairman was about to gavel an end to the hearing, I objected and asked for a chance to respond. The problem, I noted, is that my testimony stated that exact opposite as did my oral testimony over the last couple of hours. I expressly stated that Congress was likely to win on the legislative prong of the Wilkinson test. The Chair simply thanked me for the “clarification” and ended the meeting. As an academic, it was an unnerving exchange because we tend to be a tad sensitive about how our work is construed in the political melee of the Hill. That is the first time, however, that my testimony was portrayed as the complete inverse of what was submitted.
I actually like and respect Chairman Nadler a great deal and heralded his selection as Chair as a brilliant choice. I think that this was simply an ill-considered final question from staff.
For the record, this (in part) is what I said in my written testimony (and later amplified in my oral testimony):
Even on the array of demands from other committees, the purpose element is often difficult to contest without exploring the motivations of the Committee. For example, President Trump has objected that efforts to secure his tax and other records are motivated by an effort to embarrass or undermine him. Congressional investigations will often produce negative collateral consequences for witnesses that can range from job terminations to divorces to criminal charges. The Court, however, has been consistent in not treating consequences or motivations as the determinative factors. For example, in Sinclair v. United States, the Senate pursued testimony from Harry F. Sinclair who refused to answer because he was facing a criminal trial on the allegations, stating “I shall reserve any evidence I may be able to give for those courts.” His counsel objected that the Senate was trying to elicit testimony and evidence outside of the court system. The concern was a legitimate one for a criminal defense. However, it is not a legitimate objection to a subpoena, though invoking the privilege against self-incrimination would have been available absent a grant of immunity. The Court considered the collateral consequences to the trial as entirely immaterial because lawsuits or trials do not “operate[] to divest the Senate or the committee of power further to investigate the actual administration of the land laws.” The Court has spoken honestly about its disinclination to judge the propriety or wisdom of broad committee functions . . .
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Some of us have expressed skepticism about the purpose of the subpoena fight, which will serve to delay any impeachment proceeding over a public report that was over 92 percent unredacted and a non-public report to select members that was 98 percent unredacted. However, the desire to see the full report or underlying evidence can be justified as related to the need to ascertain the evidence of criminal acts. Some of the demands of Congress (like multiple years of tax and transactional evidence) could present more challenging arguments on a legislative purpose, but the Judiciary Committee’s demand for evidence underlying the Mueller report should be viewed as squarely within a legislative purpose.
Barack Obama-appointed judge Amit P. Mehta’s 41-page opinion began by comparing President Trump’s concerns about congressional overreach to those of President James Buchanan, asserting that Trump “has taken up the fight of his predecessor.”
Judge Mehta acknowledged that the motivational and confidentiality assurances of Congress can be questioned: “[T]he court is not naïve to reality.” Indeed, he acknowledged that there “is a chance that some records obtained from Mazars will become public soon after they are produced.” Yet, he followed prior case law deferring to the oversight authority of Congress on such questions.
The Trump legal team will now be able to pursue this matter to the D.C. Circuit, though the expedited schedule given by Mehta may have surprised them. One clear desire in these challenges is delay. Just as I warned Congress last week not to make bad law with bad cases, the same is true for the Trump team. They could create poor precedent for future presidents in such appeals. As someone who favors the legislative branch in such fights, I am less aggrieved by that prospect. However, the broad array of challenges by the Trump team could come at a considerable cost is allowed to extend to the appellate courts.