Donald Trump v. Mazars USA, LLP

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued July 12, 2019 Decided October 11, 2019

No. 19-5142

DONALD J. TRUMP, ET AL.,

APPELLANTS

v.

MAZARS USA, LLP AND COMMITTEE ON OVERSIGHT AND

REFORM OF THE U.S. HOUSE OF REPRESENTATIVES,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01136)

William S. Consovoy argued the cause for appellants. With

him on the briefs were Cameron T. Norris and Stefan C.

Passantino.

Duane Morley Cox, pro se, filed the brief for amicus

curiae Duane Morley Cox in support of appellants.

Douglas N. Letter, General Counsel, U.S. House of

Representatives, argued the cause for appellee Committee on

Oversight and Reform of the U.S. House of Representatives.

With him on the briefs were Todd B. Tatelman, Deputy General

Counsel, Megan Barbero and Josephine Morse, Associate

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General Counsel, and Brooks M. Hanner, Assistant General

Counsel.

Elizabeth B. Wydra, Brianne J. Gorod, and Ashwin P.

Phatak were on the brief for amicus curiae Constitutional

Accountability Center in support of intervenor-defendant-

appellee Committee on Oversight and Reform of the U.S.

House of Representatives.

Hashim M. Mooppan, Deputy Assistant Attorney General,

U.S. Department of Justice, and Mark R. Freeman, Scott R.

McIntosh, and Gerard Sinzdak, Attorneys, were on the brief as

amicus curiae The United States.

Before: TATEL, MILLETT and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge RAO.

TATEL, Circuit Judge: On April 15, 2019, the House

Committee on Oversight and Reform issued a subpoena to the

accounting firm Mazars USA, LLP for records related to work

performed for President Trump and several of his business

entities both before and after he took office. According to the

Committee, the documents will inform its investigation into

whether Congress should amend or supplement current ethics-

in-government laws. For his part, the President contends that

the Committee’s investigation into his financial records serves

no legitimate legislative purpose, and he has sued to prevent

Mazars from complying with the subpoena. The district court

granted summary judgment in favor of the Committee, and we

affirm. Contrary to the President’s arguments, the Committee

possesses authority under both the House Rules and the

Constitution to issue the subpoena, and Mazars must comply.

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I.

Shortly after the 116th Congress convened on January 3,

2019, the new U.S. House of Representatives debated and

adopted a set of rules to govern its proceedings. See H.R.

Res. 6, 116th Cong. (2019). Like previous Congresses, the

116th established an oversight committee, the Committee on

Oversight and Reform, which it charged with “review[ing] and

study[ing] on a continuing basis the operation of Government

activities at all levels” and which it permitted to “conduct

investigations” “at any time . . . of any matter,” “without regard

to” other standing committees’ jurisdictions. Rules of the

House of Representatives, 116th Cong., Rule X, cls. 3(i),

4(c)(2) (2019) (“House Rules”); see also id., cl. 1(n)

(establishing the Committee on Oversight and Reform). To

“carry[] out . . . [these] functions and duties,” the Oversight

Committee may “require, by subpoena or otherwise . . . the

production of such . . . documents as it considers necessary.”

House Rule XI, cl. 2(m).

This case concerns one such subpoena. Issued on April 15

by the chairman of the House Committee on Oversight and

Reform, Representative Elijah Cummings, to President

Trump’s accounting firm, the subpoena requests financial

documents concerning the President and his companies

covering years both before and during his presidency.

In order to explain the impetus behind the subpoena, we

must go back to the Ethics in Government Act of 1978. Enacted

in the wake of the Watergate scandal, that statute requires many

aspiring and current government officials, including

presidential candidates and sitting Presidents, to file financial

disclosure reports at various times during their candidacies and

incumbencies. See 5 U.S.C. app. 4 § 101(a), (c), (d), (f)

(requiring “a candidate . . . for nomination or election to the

office of President” and “the President” to “file a report

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containing the information described” in section 102 of the

Act). In their initial reports, presidential candidates and new

Presidents must provide information concerning their income,

assets, liabilities, and employers. See id. § 102(b) (requiring

“[e]ach report filed pursuant to subsections (a), (b), and (c) of

section 101” to contain such information). Once in office,

sitting Presidents must file annual reports disclosing that same

information plus details about any covered gifts, real estate and

securities transactions, and blind trusts. See id. § 102(a)

(requiring “[e]ach report filed pursuant to section 101(d) and

(e)” to contain such information). Presidential candidates

submit their reports to the Federal Election Commission, see

id. § 103(e), while incumbent Presidents file with the Office of

Government Ethics, an “executive agency” tasked with

“interpreting rules and regulations . . . governing . . . the filing

of financial statements,” id. §§ 103(b), 401(a), 402(b)(3),

402(b)(6).

Last year, the Office of Government Ethics announced that

it had identified an error in one of the several reports that

President Trump had filed since he became a presidential

candidate in 2015. Specifically, by letter dated May 16, 2018,

the Acting Director of the Office of Government Ethics advised

the Deputy Attorney General that, “based on the information

provided” in President Trump’s 2018 financial disclosure

report (covering calendar year 2017), he had determined that

the President’s 2017 financial disclosure (covering calendar

year 2016) omitted “a reportable liability under the Ethics in

Government Act,” namely, “a payment made by Mr. Michael

Cohen,” President Trump’s former personal lawyer, “to a third

party.” Letter from David J. Apol, Acting Director, Office of

Government Ethics, to Rod J. Rosenstein, Deputy Attorney

General, Department of Justice 1 (May 16, 2018) (“Apol

Letter”). Because President Trump’s 2018 filing disclosed that

in 2017 the President had reimbursed Cohen for the 2016

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payment, the Acting Director concluded that “the payment

made by Mr. Cohen [was] required to be reported as a liability”

before it was reimbursed. Id. at 1; see also OGE Form 278e,

2017 Annual Report for Donald J. Trump, Part 8 n.3 (May 15,

2018), https://oge.app.box.com/v/Trump2018Annual278

(disclosing that “Mr. Trump fully reimbursed Mr. Cohen in

2017”).

Several months later, then-Ranking Member Cummings

wrote to White House Counsel seeking documents related to

President Trump’s payments to Cohen. See Letter from Elijah

E. Cummings, Ranking Member, House Committee on

Oversight and Reform, to Donald F. McGahn II, Counsel to the

President, The White House, and George A. Sorial, Executive

Vice President of the Trump Organization 4–5 (Sept. 12, 2018).

That letter remained unanswered as of January 2019, when

Representative Cummings, who in the intervening months had

become Chairman Cummings, reiterated his request in a

second letter. See Letter from Elijah E. Cummings, Chairman,

House Committee on Oversight and Reform, to Pat Cipollone,

Counsel to the President, The White House 1–2 (Jan. 8, 2019).

Chairman Cummings also wrote to the new Director of the

Office of Government Ethics, asking him, too, for “documents

related to President Donald Trump’s reporting of debts and

payments to his personal attorney, Michael Cohen.” Letter

from Elijah E. Cummings, Chairman, House Committee on

Oversight and Reform, to Emory A. Rounds III, Director,

Office of Government Ethics 1 (Jan. 22, 2019).

In February, White House Counsel responded that the

President would consider permitting the Committee to review,

on a limited basis, a subset of the requested documents, but

Chairman Cummings rejected this proposal as inadequate. See

Letter from Elijah E. Cummings, Chairman, House Committee

on Oversight and Reform, to Pat Cipollone, Counsel to the

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President, The White House 1 (Feb. 15, 2019) (“Cummings

Feb. 15 Letter”) (stating that the President’s offer to “consider

providing Committee staff with the ability to review limited

portions of two of the six categories of documents in camera”

would “not obviate the need . . . to fully comply” (internal

quotation marks omitted)). Citing the Oversight Committee’s

status as “the authorizing Committee for the Office of

Government Ethics,” the President’s statutory obligation to

“file . . . public financial disclosure report[s],” and Congress’s

“plenary authority to legislate and conduct oversight regarding

compliance with ethics laws and regulations,” Chairman

Cummings urged the White House “to provide documents

relevant to the Committee’s investigation of these matters.” Id.

at 7–8. “These documents will help the Committee determine,”

he explained, “why the President failed to report . . . payments

and whether reforms are necessary to address deficiencies with

current laws, rules, and regulations.” Id. at 9.

Two weeks later, Michael Cohen appeared at a hearing

before the Oversight Committee. See Hearing with Michael

Cohen, Former Attorney to President Donald Trump: Hearing

Before the House Committee on Oversight and Reform, 116th

Cong. (Feb. 27, 2019). He testified that he believed, based on

his experience working for President Trump, that the President

had “inflated his total assets when it served his purposes” in

some situations and had “deflated his assets” in others. Id. at

13 (testimony of Michael D. Cohen). Several Committee

Members questioned Cohen’s credibility; he had, after all,

recently pleaded guilty to various crimes, including lying to

Congress. See, e.g., id. at 7 (statement of Ranking Member Jim

Jordan) (“This might be the first time someone convicted of

lying to Congress has appeared again so quickly in front of

Congress.”); id. at 57 (statement of Rep. Michael Cloud)

(asking Cohen to “state what you’ve been convicted of”).

Seeking to support his testimony, Cohen produced to the

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Committee several accounting documents, all of which

predated Mr. Trump’s presidency. Two of these documents—

2011 and 2012 “Statements of Financial Condition” for Donald

J. Trump—were prepared by Mazars. See “Donald J. Trump

Statement of Financial Condition” dated June 30, 2011;

“Donald J. Trump Statement of Financial Condition” dated

June 30, 2012.

Chairman Cummings next wrote to Mazars. In a March

2019 letter, he explained that the statements of financial

condition prepared by the firm and supplied by Cohen had

“raise[d] questions about the President’s representations of his

financial affairs,” “particularly [his] debts,” “on these forms

and on other disclosures.” Letter from Elijah E. Cummings,

Chairman, House Committee on Oversight and Reform, to

Victor Wahba, Chairman and Chief Executive Officer, Mazars

USA, LLP 1 (Mar. 20, 2019) (“Cummings Mar. 20 Letter”).

Chairman Cummings highlighted several “specific concerns,”

including: (1) that “[t]he 2012 Statement of Financial

Condition prepared by [Mazars]” intentionally omitted over

$50 million in assets and $75 million in liabilities that “then-

Candidate Trump” later disclosed on his “first publicly filed

financial disclosure made . . . in 2015,” (2) that read together,

the 2012 statement of financial condition and 2015 financial

disclosure indicated that Deutsche Bank had reduced the

interest rate it was charging on a $125 million loan to then-

Candidate Trump, potentially saving him “about $625,000”

each year, and (3) that “both the 2011 and 2012 financial

statements” noted that, before becoming a presidential

candidate, Mr. Trump “ha[d] pledged” almost $20 million to a

“former partner in the Trump World Tower at United Nations

Plaza,” who, “[a]ccording to contemporaneous reports,” was

possibly “the Korean conglomerate Daewoo” or a “German

financial institution.” Id. at 2–3. “To assist [its] review of these

issues,” the Committee requested several categories of

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documents relating to President Trump’s accounts going back

to January 2009. Id. at 4.

Mazars responded that it could not provide the requested

documents voluntarily. See Letter from Jerry D. Bernstein,

Partner, Blank Rome LLP, to Elijah E. Cummings, Chairman,

House Committee on Oversight and Reform 1 (Mar. 27, 2019).

So, on April 12, Chairman Cummings sent a memorandum to

his fellow committee members explaining his intention to

issue, pursuant to the Committee’s authority under House Rule

X to “investigate ‘any matter at any time,’” a subpoena to

Mazars. Memorandum from Chairman Elijah E. Cummings to

Members of the Committee on Oversight and Reform 3

(Apr. 12, 2019) (“Cummings Memo”). The Chairman

identified four subject matters that, in his view, “[t]he

Committee has full authority to investigate”: (1) “whether the

President may have engaged in illegal conduct before and

during his tenure in office,” (2) “whether [the President] has

undisclosed conflicts of interest that may impair his ability to

make impartial policy decisions,” (3) “whether [the President]

is complying with the Emoluments Clauses of the

Constitution,” and (4) “whether [the President] has accurately

reported his finances to the Office of Government Ethics and

other federal entities.” Id. at 4. “The Committee’s interest in

these matters,” he stated, “informs its review of multiple laws

and legislative proposals under [its] jurisdiction.” Id.

The subpoena issued three days later. It requested, “[w]ith

respect to Donald J. Trump” and several of his affiliated

businesses—including the Trump Organization, the Trump

Corporation, and the Trump Old Post Office LLC—“[a]ll

statements of financial condition, annual statements, periodic

financial reports, and independent auditors’ reports prepared,

compiled, reviewed, or audited by Mazars . . . or its

predecessor.” Subpoena to Mazars USA, LLP, Apr. 15, 2019

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(“Subpoena”). Furthermore, with respect to Mazars’s

“preparation, compilation, review, or auditing” of those

documents, the subpoena requested all related “engagement

agreements or contracts” “[w]ithout regard to time”; “[a]ll

underlying, supporting, or source documents and records . . . or

any summaries of such documents”; and all related

“memoranda, notes, and communications,” including

“communications related to potential concerns that . . .

information . . . provided by Donald J. Trump or . . . the Trump

Organization[] [was] incomplete, inaccurate, or otherwise

unsatisfactory.” Id. Narrowed somewhat from the Chairman’s

initial request to Mazars, the subpoena sought documents from

“calendar years 2011 through 2018” “[u]nless otherwise

noted.” Id. The subpoena instructed Mazars to comply by

April 29.

Before that date arrived, however, President Trump and

several of his business entities (collectively, the “Trump

Plaintiffs”) filed this lawsuit seeking a declaratory judgment

invalidating the subpoena and a permanent injunction

prohibiting its enforcement. See Complaint at 13, Trump v.

Committee on Oversight & Reform of U.S. House of

Representatives, 380 F. Supp. 3d 76 (D.D.C. 2019) (No.

19-cv-01136) (“Complaint”). The Trump Plaintiffs also moved

for a preliminary injunction, and while that motion was

pending, the Committee agreed to defer Mazars’s deadline to

comply with the subpoena.

The district court worked quickly to provide the parties

with an answer. Following the Supreme Court’s direction to

“give[] the most expeditious treatment” to suits seeking to

enjoin congressional subpoenas, Eastland v. U.S. Servicemen’s

Fund, 421 U.S. 491, 511 n.17 (1975), the court “consolidate[d]

[its] hearing on the preliminary injunction” with a resolution of

the merits by “treat[ing] the parties’ briefing”—which raised

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no disputes of material fact—“as cross-motions for summary

judgment,” Trump, 380 F. Supp. 3d at 88, 90; see also Fed. R.

Civ. P. 65(a)(2) (permitting the court, “[b]efore or after

beginning the hearing on a motion for a preliminary

injunction,” to “advance the trial on the merits and consolidate

it with the hearing”). Then, after explaining that its “analysis

must be highly deferential to the legislative branch,” Trump,

380 F. Supp. 3d at 91, the court concluded that each of the four

investigative topics set forth in Chairman Cummings’s

April 12 memorandum represents “a subject ‘on which

legislation could be had,’” id. at 94 (quoting McGrain v.

Daugherty, 273 U.S. 135, 177 (1927)). The court thus granted

summary judgment in favor of the Oversight Committee. See

id. at 105.

The Trump Plaintiffs now appeal, challenging the district

court’s grant of summary judgment to the Committee (though

not its decision to treat the briefs as cross-motions for summary

judgment). By agreement of the parties, Mazars need not

comply with the subpoena during the pendency of this

expedited appeal. See Oral Arg. Tr. 129. After oral argument,

and at the court’s invitation, the Department of Justice filed an

amicus brief, and the Trump Plaintiffs and Committee

responded. Our review is de novo. See Teva Pharmaceuticals

USA, Inc. v. Food & Drug Administration, 441 F.3d 1, 3 (D.C.

Cir. 2006) (reviewing de novo “the district court’s legal

determination” made after “consolidat[ing] [a] motion for a

preliminary injunction with a final decision on the merits”).

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II.

This is hardly the first subpoena Congress has issued—

legislative subpoenas are older than our country itself—and the

parties draw upon the historical record to support their claims.

Accordingly, before digging into the details of this case, we

think it necessary to place the challenged subpoena in historical

context.

The story of legislative subpoenas extends all the way back

to the “emergence of [the English] Parliament,” when that

body, as part of its campaign to “challenge the absolute power

of the monarch,” asserted “plenary authority” to hold offending

parties in contempt. Watkins v. United States, 354 U.S. 178,

188 (1957). Beginning in the late seventeenth century,

Parliament armed “a host of committees” with the “powers to

send for persons and papers” in aid of their

“investigat[ions] . . . [into] the operations of government”—

from “the conduct of the war in Ireland” to “[t]he unwarranted

proclamation of martial law . . . by a commissioner of the East

India Company” to “the State of the Gaols of [the] Kingdom.”

James M. Landis, Constitutional Limitations on the

Congressional Power of Investigation, 40 Harv. L. Rev. 153,

162–63 (1926). Across the Atlantic, too, “[t]he privileges and

powers of the [House of] Commons were naturally assumed to

be an incident of the representative assemblies of the Thirteen

Colonies.” Id. at 165.

After the Revolutionary War and the Constitutional

Convention, the U.S. Congress wasted little time in asserting

its power to use compulsory process to investigate matters of

national—and potentially legislative—importance. The House

of Representatives opened the first such investigation in 1792,

when it passed a resolution appointing a committee “to inquire

into the causes of the failure of the late expedition under Major

General St. Clair,” whose troops had recently suffered an

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embarrassing defeat in the Northwest Territory, and

“empowered” that committee “to call for such persons, papers,

and records, as may be necessary to assist [its] inquiries.”

3 Annals of Congress 493 (1792); see also George C. Chalou,

General St. Clair’s Defeat, 1792–93, in 1 Congress

Investigates: A Critical and Documentary History 1, 2 (Roger

A. Bruns et al. eds., rev. ed. 2011). More investigatory

committees, similarly empowered to issue subpoenas,

followed. For example, in 1814, the House directed an inquiry

“into the causes of the success of the enemy”—that is, the

British—“in his late enterprises” in burning the Capitol, 28

Annals of Congress 310 (1814), and, in 1859, the Senate

established a select committee to “inquire into the facts

attending” John Brown’s raid on Harpers Ferry and to “report

whether . . . and what legislation may . . . be necessary . . . for

the future preservation of the peace,” Cong. Globe, 36th Cong.,

1st Sess. 141 (1859).

But not until 1880 did “the first case reach[] [the Supreme]

Court to challenge the use of compulsory process as a

legislative device.” Watkins, 354 U.S. at 193. In that case,

Kilbourn v. Thompson, 103 U.S. 168 (1881), the Court held

that the House had exceeded its investigatory authority by

opening an inquiry into the bankruptcy proceedings of a firm

into which the United States had invested money. The Court

explained that Congress’s sole route to a remedy in that

bankruptcy proceeding, like that of all other dissatisfied

creditors, was “by a resort to a court of justice.” Id. at 193.

Accordingly, because under those circumstances the House’s

investigation “could result in no valid legislation,” id. at 195,

the Court concluded that the House had impermissibly

“assumed a power which could only be properly exercised by

another branch of the government,” id. at 192.

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If Kilbourn created any doubt about Congress’s power to

conduct legislative investigations, the Supreme Court dispelled

that cloud in a pair of cases arising out of alleged corruption in

the administration of President Warren G. Harding. In the first,

McGrain v. Daugherty, the Court considered a subpoena issued

to the brother of then-Attorney General Harry Daugherty for

bank records relevant to the Senate’s investigation into the

Department of Justice. Concluding that the subpoena was valid,

the Court explained that Congress’s “power of inquiry . . . is an

essential and appropriate auxiliary to the legislative function,”

as “[a] legislative body cannot legislate wisely or effectively in

the absence of information respecting the conditions which the

legislation is intended to affect or change.” 273 U.S. at 174–

75. It mattered not that the Senate’s authorizing resolution

lacked an “avow[al] that legislative action was had in view”

because, said the Court, “the subject to be investigated was . . .

[p]lainly [a] subject . . . on which legislation could be had” and

such legislation “would be materially aided by the information

which the investigation was calculated to elicit.” Id. at 176–77

(internal quotation marks omitted). That was enough. Although

“[a]n express avowal” of the Senate’s legislative objective

“would have been better,” the Court admonished that “the

presumption should be indulged that [legislation] was the real

object.” Id. at 178.

Two years later, in Sinclair v. United States, 279 U.S. 263

(1929), the Court echoed many of the same refrains. In this

second case, Harry Sinclair, the president of an oil company,

appealed his conviction for refusing to answer a Senate

committee’s questions regarding his company’s allegedly

fraudulent lease on federal oil reserves at Teapot Dome in

Wyoming. The Court, acknowledging individuals’ “right to be

exempt from all unauthorized, arbitrary or unreasonable

inquiries and disclosures in respect of their personal and private

affairs,” id. at 292, nonetheless explained that because “[i]t was

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a matter of concern to the United States,” “the transaction

purporting to lease to [Sinclair’s company] the lands within the

reserve cannot be said to be merely or principally . . . personal,”

id. at 294. The Court also dismissed the suggestion that the

Senate was impermissibly conducting a criminal investigation.

“It may be conceded that Congress is without authority to

compel disclosures for the purpose of aiding the prosecution of

pending suits,” explained the Court, “but the authority of that

body, directly or through its committees, to require pertinent

disclosures in aid of its own constitutional power is not

abridged because the information sought to be elicited may also

be of use in such suits.” Id. at 295.

The Court returned to the question of Congress’s

investigative authority during the Cold War, as “investigations

into the threat of subversion of the United States Government”

began to raise “novel questions [about] the appropriate limits

of congressional inquiry” “into the lives and affairs of private

citizens.” Watkins, 354 U.S. at 195. At first, the Court avoided

these thorny First Amendment issues by resolving cases on

other grounds. In United States v. Rumely, the Court overturned

a defendant’s contempt-of-Congress conviction for refusing to

answer a congressional committee’s request for “the names of

those who made bulk purchases” of “books of a particular

political tendentiousness.” 345 U.S. 41, 42 (1953). Rather than

reach the “[g]rave” First Amendment question posed by such

an inquiry, the Court interpreted the House’s authorizing

resolution, which instructed the committee to study “lobbying

activities,” as failing to permit an investigation into the sale of

books. Id. at 45, 48. And a few years later, in Watkins v. United

States, the Court overturned another contempt conviction, this

time holding that the defendant, a labor organizer who had

refused “to testify about persons who may in the past have been

Communist Party members,” 354 U.S. at 185, had received

insufficient notice of “the ‘question under inquiry’” at his

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congressional hearing, id. at 214 (quoting 2 U.S.C. § 192). In

that case, the Court took the opportunity to emphasize that

although “there is no congressional power to expose for the

sake of exposure,” courts should avoid “testing the motives of

committee members for this purpose.” Id. at 200. Rather, the

crucial inquiry is whether a “legislative purpose is being

served.” Id.

The Court soon reached the First Amendment issue it had

been avoiding. In Barenblatt v. United States, the Court

considered the case of a teacher convicted of criminal contempt

for refusing, when testifying before a Subcommittee of the

House Committee on Un-American Activities, to answer

questions about his “past or present membership in the

Communist Party.” 360 U.S. 109, 126 (1959). Unlike the

Watkins defendant, the Barenblatt defendant had been

“sufficiently apprised of the topic under inquiry” by “other

sources of . . . information,” such as the Subcommittee

“Chairman’s statement as to why he had been called” to testify

and the questions posed by the Subcommittee to previous

witnesses. Id. at 124–25 (internal quotation marks omitted).

Proceeding, then, to the “precise constitutional issue”—

namely, “whether the Subcommittee’s inquiry . . . transgressed

the provisions of the First Amendment”—the Court explained

that although “Congress may not constitutionally require an

individual to disclose his . . . private affairs except in relation

to” “a valid legislative purpose,” such a purpose was present in

that case. Id. at 127. Congress’s “wide power to legislate in the

field of Communist activity . . . and to conduct appropriate

investigations in aid thereof[] is hardly debatable,” said the

Court, and “[s]o long as Congress acts in pursuance of its

constitutional power, the Judiciary lacks authority to intervene

on the basis of the motives which spurred the exercise of that

power.” Id. at 127, 132. Thus, given “the governmental

interests . . . at stake,” the Court concluded that “the First

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Amendment [had] not been offended” and affirmed the

defendant’s conviction. Id. at 134.

Presidents, too, have often been the subjects of Congress’s

legislative investigations, though fewer of these have required

judicial intervention. Historical examples stretch far back in

time and broadly across subject matters. In 1832, for example,

the House vested a select committee with subpoena power “to

inquire whether an attempt was made by the late Secretary of

War . . . [to] fraudulently [award] . . . a contract for supplying

rations” to Native Americans and to “further . . . inquire

whether the President . . . had any knowledge of such attempted

fraud, and whether he disapproved or approved of the same.”

H.R. Rep. No. 22-502, at 1 (1832) (internal quotation marks

omitted). Shortly after World War II, Congress’s Pearl Harbor

Committee published a joint report exonerating the President

of “charges” that he had “tricked, provoked, incited, cajoled, or

coerced Japan into attacking this Nation.” S. Doc. No. 79-244,

at xiii, 251 (1946). In 1987, the House established a committee

to investigate the Iran-Contra Affair, including “the role of the

President.” H.R. Rep. No. 100-433, at 21 (1987). During that

investigation, President Reagan declined to assert executive

privilege, going so far as to furnish “relevant excerpts of his

personal diaries” to Congress. Morton Rosenberg,

Congressional Research Service, RL 30319, Presidential

Claims of Executive Privilege: History, Law, Practice and

Recent Developments 14 (Aug. 21, 2008) (internal quotation

marks omitted). And in the 1990s, first the House and Senate

Banking Committees and then a Senate special committee

investigated President and Mrs. Clinton’s involvement in the

Whitewater land deal and related matters. See Douglas L.

Kriner & Eric Schickler, Investigating the President 56–62

(2016) (describing the “three-year congressional investigation

of Whitewater”); see also S. Res. 120, 104th Cong. (1995)

(establishing the Senate Special Committee to Investigate

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Whitewater Development Corporation and Related Matters).

Thanks to a last-minute compromise between the White House

and the Senate, the courts were kept out of a dispute over

whether the special committee could subpoena meeting notes

taken by President Clinton’s former lawyer. See Louis Fisher,

Congressional Research Service, RL 31836, Congressional

Investigations: Subpoenas and Contempt Power 16–18

(Apr. 2, 2003).

Of all the historical examples, perhaps the most high-

profile congressional investigation into a President—and the

only one we have found that produced an appellate-level

judicial opinion—was Congress’s investigation into President

Nixon. The Senate created the Senate Select Committee on

Presidential Campaign Activities, better known as the Senate

Watergate Committee, to investigate “illegal, improper, or

unethical activities engaged in by any persons” involved in a

campaign “conducted by . . . any person seeking nomination or

election . . . for the office of the President of the United States”

during the “Presidential election of 1972.” S. Res. 60, 119

Cong. Rec. 3255, 93rd Cong. § 1(a) (1973) (emphasis added).

In Senate Select Committee on Presidential Campaign

Activities v. Nixon, our court was asked to decide whether

President Nixon had “a legal duty to comply with” a subpoena

issued by the Senate Watergate Committee for “taped

recordings of five conversations . . . discussing alleged

criminal acts.” 498 F.2d 725, 726–27 (D.C. Cir. 1974) (en

banc). President Nixon, apparently taking no issue with the

general power of congressional committees to subpoena sitting

Presidents, instead asserted executive privilege over the

individual tapes requested, arguing that they “[could] []not be

made public consistent with the confidentiality essential to the

functioning of the Office of the President.” Id. at 727 (internal

quotation marks omitted). In the end, we agreed with the

President: although the “presumptive[] privilege[]” protecting

18

“presidential conversations” could “be overcome . . . by an

appropriate showing of public need,” id. at 730 (internal

quotation marks omitted), we explained, the Committee had

failed to make such a showing “in the peculiar circumstances

of [that] case,” id. at 733. But even though the Senate

Watergate Committee ultimately lost, Senate Select Committee

strongly implies that Presidents enjoy no blanket immunity

from congressional subpoenas. After all, if such immunity

exists, it would have been wholly unnecessary for the court to

explore the subpoena’s particulars and to weigh “the public

interest [in] favor[] [of] confidentiality” against a “showing of

need by another institution of government”—that is, Congress.

Id. at 730.

All told, from Congress’s centuries-long experience

issuing legislative subpoenas, and the courts’ (somewhat less

frequent) experience reviewing them, a few principles

emerge—principles that control our resolution of this case.

As an initial matter, “whether [a] committee [is]

authorized [to] exact the information” it has subpoenaed “must

first be settled before . . . consider[ing] whether Congress had

the [constitutional] power to confer upon the committee the

authority which it claim[s].” Rumely, 345 U.S. at 42–43. In

other words, it matters not whether the Constitution would give

Congress authority to issue a subpoena if Congress has given

the issuing committee no such authority.

That said, once a committee has been delegated “[t]he

power of the Congress to conduct investigations,” that

constitutional authority “is broad.” Watkins, 354 U.S. at 187;

accord Eastland, 421 U.S. at 504 n.15 (“[T]he power to

investigate is necessarily broad.”); Barenblatt, 360 U.S. at 111

(describing Congress’s investigative power as “broad”);

Quinn v. United States, 349 U.S. 155, 160 (1955) (same);

19

McGrain, 273 U.S. at 173–74 (same). “It encompasses

inquiries concerning the administration of existing laws as well

as proposed or possibly needed statutes,” “[i]t includes surveys

of defects in our social, economic or political system for the

purpose of enabling the Congress to remedy them,” and “[i]t

comprehends probes into departments of the Federal

Government to expose corruption, inefficiency or waste.”

Watkins, 354 U.S. at 187. In short, “[a] legislative inquiry may

be as broad, as searching, and as exhaustive as is necessary to

make effective the constitutional powers of Congress.”

Townsend v. United States, 95 F.2d 352, 361 (D.C. Cir. 1938).

Expansive as it is, however, Congress’s subpoena power is

subject to several key constraints.

First, because “the power of Congress . . . to investigate”

is “co-extensive with [its] power to legislate,” Quinn, 349 U.S.

at 160, Congress may in exercising its investigative power

neither usurp the other branches’ constitutionally designated

functions nor violate individuals’ constitutionally protected

rights. Congress may not conduct itself as “a law enforcement

or trial agency,” as “[t]hese are functions of the executive and

judicial departments.” Watkins, 354 U.S. at 187. And Congress

lacks any “general power to expose where the predominant

result can only be an invasion of the private rights of

individuals.” Id. at 200.

Next, precisely because “[t]he scope of [Congress’s]

power of inquiry . . . is as penetrating and far-reaching as the

potential power to enact and appropriate under the

Constitution,” Barenblatt, 360 U.S. at 111, Congress may

investigate only those topics on which it could legislate, see

Quinn, 349 U.S. at 161 (stating that Congress’s “power to

investigate” does not “extend to an area in which Congress is

forbidden to legislate”). If no constitutional statute may be

20

enacted on a subject matter, then that subject is off-limits to

congressional investigators.

And finally, congressional committees may subpoena only

information “calculated to” “materially aid[]” their

investigations. McGrain, 273 U.S. at 177. Even a valid

legislative purpose cannot justify a subpoena demanding

irrelevant material.

With these principles in mind, we proceed to the

particulars of this case. The Trump Plaintiffs dispute both the

Committee’s authority from the House to issue the subpoena

and the House’s authority under the Constitution to confer the

same. For reasons that shall become clear later, we address

these questions in reverse order.

III.

At the outset, we emphasize that to resolve this case we

need not decide whether the Constitution permits Congress, in

the conduct of a legislative—that is, non-impeachment—

investigation, to issue subpoenas to a sitting President. That

issue is not presented here because, quite simply, the Oversight

Committee has not subpoenaed President Trump. Rather, the

Committee has issued its subpoena to Mazars, an accounting

firm with whom President Trump has voluntarily shared

records from his time as a private citizen, as a candidate, and

as President. Neither the Trump Plaintiffs nor the Department

of Justice argues that the Constitution denies Congress

authority to subpoena non-governmental custodians of the

President’s financial information. Cf. Oral Arg. Tr. 50 (stating

that assuming a committee has authority from the House to

issue a subpoena, the relevant inquiry is whether “the subpoena

ha[s] a legitimate legislative purpose”); id. at 68 (denying that

the President is “absolutely immune from any oversight

whatsoever”); Department Br. 7–8. Nor do the Trump Plaintiffs

21

assert any property rights in, or executive or other recognized

evidentiary privilege over, the subpoenaed information. See

Complaint (failing to assert any claim of privilege or property

right in the subpoenaed materials); Oral Arg. Tr. 15

(confirming that the President asserts no claim of executive

privilege or immunity); see also Couch v. United States, 409

U.S. 322, 335 (1973) (recognizing that “no confidential

accountant-client privilege exists under federal law, and no

state-created privilege has been recognized in federal cases”);

Peerenboom v. Marvel Entertainment, LLC, 148 A.D.3d 531,

532 (N.Y. App. Div. 1st Dep’t 2017) (holding that “[t]here is

no accountant-client privilege in [New York]”). Instead, the

Trump Plaintiffs ask us to do what courts have done ever since

Kilbourn: to determine “[w]hether the Committee’s subpoena

. . . is ‘related to, and in furtherance of, a legitimate task of the

Congress.’” Appellants’ Br. 5 (quoting Watkins, 354 U.S. at

187); see also Department Br. 10 (quoting same).

Taking up that question, we consider whether the

Oversight Committee is pursuing a legislative, as opposed to a

law-enforcement, objective; whether the Committee is

investigating a subject on which constitutional legislation

“could be had,” McGrain, 273 U.S. at 177; and whether the

challenged subpoena seeks information sufficiently relevant to

the Committee’s legislative inquiry.

A.

While “[t]he power of the Congress to conduct

investigations is inherent in the legislative process,” Watkins,

354 U.S. at 187, that authority “must not be confused with any

of the powers of law enforcement,” which “are assigned under

our Constitution to the Executive and the Judiciary,” Quinn,

349 U.S. at 161. The Trump Plaintiffs contend that the

Committee has crossed this constitutional line, veering from

permissible legislative investigation into impermissible law

22

enforcement. In assessing whether Congress has strayed

outside its legislative lane, we face two analytical hurdles.

First, the case law is quite stingy in describing what

impermissible congressional law enforcement might look like

in practice. The Supreme Court has framed its primary

instruction on this point in the negative: the fact that an

investigation might expose criminal conduct does not

transform a legislative inquiry into a law-enforcement

endeavor. As the Court explained in Sinclair, Congress’s

“authority . . . to require pertinent disclosures in aid of its own

constitutional power is not abridged” merely “because the

information sought to be elicited may also be of use” in

criminal prosecutions. 279 U.S. at 295. “Nor [is] it a valid

objection,” said the Court in McGrain, that an investigation

“might possibly disclose crime or wrongdoing.” 273 U.S. at

179–80. Indeed, thanks to the Court’s clarity on this matter, all

parties here agree that “a permissible legislative investigation

does not become impermissible merely because it might expose

law violations.” Appellants’ Br. 33 (internal quotation marks

omitted); see also Appellee’s Br. 44 (“The fact that the . . .

underlying conduct might also be unlawful . . . does not

invalidate the inquiry.”).

Second, the Supreme Court has made plain that “in

determining the legitimacy of a congressional act,” courts may

“not look to the motives alleged to have prompted it.” Eastland,

421 U.S. at 508; see also Watkins, 354 U.S. at 200 (stating that

“a solution to our problem is not to be found in testing the

motives of committee members for [legislative] purpose”);

Barenblatt, 360 U.S. at 132 (“So long as Congress acts in

pursuance of its constitutional power, the Judiciary lacks

authority to intervene on the basis of the motives which spurred

the exercise of that power.”). This is true both because “it is not

for [the courts] to speculate as to the motivations that may have

23

prompted the decision of individual [committee] members,”

Wilkinson v. United States, 365 U.S. 399, 412 (1961), and

because, in any event, those “motives alone would not vitiate

an investigation which had been instituted by a House of

Congress if that assembly’s legislative purpose is being

served,” Watkins, 354 U.S. at 200. On this point, too, the parties

agree. See Appellants’ Reply Br. 11 (“To determine whether a

subpoena is pursuing [the] impermissible goal” of law

enforcement, “courts . . . cannot delve into legislators’ hidden

motives . . . .”); Appellee’s Br. 43 (“[C]ourts cannot examine

Congress’s motives to determine the validity of a subpoena.”).

Thus stranded between Charybdis and Scylla, we must

determine whether Congress’s “legislative purpose is being

served,” Watkins, 354 U.S. at 200, without taking into account

either whether the investigation will reveal, or whether the

investigators are motivated to reveal, criminal conduct.

According to the Committee, the way out of this dilemma is

simple: just “‘presume Congress is acting in furtherance of its

constitutional responsibility to legislate and . . . defer to

congressional judgments about what Congress needs to carry

out that purpose.’” Appellee’s Br. 46 (quoting Trump, 380 F.

Supp. 3d at 82). In most cases, such a presumption would be

entirely appropriate. As the Court instructed in Tenney v.

Brandhove, “[t]o find that a committee’s investigation has

exceeded the bounds of legislative power it must be obvious

that there was a usurpation of functions exclusively vested in

the Judiciary or the Executive,” 341 U.S. 367, 378 (1951)

(emphasis added); or, as it said in McGrain, even absent an

“express avowal” by Congress that the purpose of an

“investigation was to aid it in legislating,” “the presumption

should be indulged that this was the real object,” 273 U.S. at

178.

24

The trouble, however, is that this deferential presumption

finds its roots in the principle that “every reasonable

indulgence of legality must be accorded to the actions of a

coordinate branch of our Government,” Watkins, 354 U.S. at

204, and here, we arguably confront not one but two

“coordinate branch[es] of our Government”—Congress and

the President. We say “arguably” because it is far from obvious

that President Trump, proceeding in his individual capacity,

carries the mantle of the Office of the President in this case.

The challenged subpoena seeks financial records totally

unrelated to any of the President’s official actions; indeed, for

six of the eight years covered by the subpoena, President

Trump was merely Mr. Trump or Candidate Trump. Cf.

Clinton v. Jones, 520 U.S. 681, 697 (1997) (“[W]e have never

suggested that the President . . . has an immunity that extends

beyond the scope of any action taken in an official capacity.”).

That said, the fact remains that the constitutional authority

assigned to the Office of the President can be exercised only by

the flesh-and-blood human occupying that office, so as a

practical matter, a restriction on the person might constrain the

branch of government. Cf. In re Lindsey, 158 F.3d 1263, 1286

(D.C. Cir. 1998) (“Because the Presidency is tied so tightly to

the persona of its occupant[,] . . . official matters . . . often have

personal implications for a President” and vice versa.) (Tatel,

J., concurring in part and dissenting in part). In short, although

the challenged subpoena, which seeks financial documents

related to President Trump in his pre-presidential, private

capacities, presents no direct inter-branch dispute, separation-

of-powers concerns still linger in the air. Cf. United States v.

Nixon, 418 U.S. 683, 702 (1974) (explaining that where a

pretrial “subpoena is directed to a President of the United

States, appellate review, in deference to a coordinate branch of

Government, should be particularly meticulous”).

25

Assuming for the moment that we owe Congress no

deference, we must figure out how to assess whether the

subpoena serves “a valid legislative purpose,” Barenblatt, 360

U.S. at 127, without resorting to the “presumption” “that

[legislation] was the real object” of Congress’s investigation,

McGrain, 273 U.S. at 178. The Trump Plaintiffs, arguing that

“‘purpose’ and ‘motive’” are different, suggest that we may

rely upon “available evidence”—that is, “what [the

Committee] is doing and what it has stated publicly”—to

“discern for [ourselves] what the Committee’s actual purpose

is.” Appellants’ Br. 29–30. Following that course, we conclude

that the public record reveals legitimate legislative pursuits, not

an impermissible law-enforcement purpose, behind the

Committee’s subpoena. As a result, we need not decide

precisely what deference we owe Congress, as we would reach

the same conclusion absent any deference at all.

We start with Chairman Cummings’s April 12

memorandum, in which he laid out the “need for [the]

subpoena” issued to Mazars. Cummings Memo 1. As the

document most closely tied in time and subject matter to the

subpoena, that memorandum offers a natural starting point for

our analysis. Cf. Shelton v. United States, 404 F.2d 1292, 1297

(D.C. Cir. 1968) (identifying “the opening statement of the

Chairman at [committee] hearings” and the “statements of the

members of the committee” as “‘sources [that might] indicate

the existence of a legislative purpose’” (quoting Wilkinson, 365

U.S. at 410)). The Trump Plaintiffs and the Committee appear

to agree, as does the dissent. See Appellee’s Br. 30–31 (relying

on Chairman Cummings’s memorandum to supply a list of the

subjects of the Committee’s investigations); Appellants’ Reply

Br. 20–21 (dismissing as “retroactive rationalizations”

potential legislative purposes that did not “appear[] in the

Chairman’s memorandum” (alterations and internal quotation

26

marks omitted)); Dissenting Op. at 2 (tracing the “reasons” for

the subpoena to Chairman Cummings’s Memo).

Chairman Cummings’s memorandum identifies four

questions that the subpoena will help answer: “whether the

President may have engaged in illegal conduct before and

during his tenure in office,” “whether [the President] has

undisclosed conflicts of interest that may impair his ability to

make impartial policy decisions,” “whether [the President] is

complying with the Emoluments Clauses of the Constitution,”

and “whether [the President] has accurately reported his

finances to the Office of Government Ethics and other federal

entities.” Cummings Memo 4. But even more important than

this list, the Chairman’s very next sentence explains that “[t]he

Committee’s interest in these matters informs [the

Committee’s] review of multiple laws and legislative proposals

under [its] jurisdiction.” Id. Such an “express avowal of the

[Committee’s] object” offers strong evidence of the

Committee’s legislative purpose. McGrain, 273 U.S. at 178.

The April memorandum does not stand alone. Just two

months earlier, Chairman Cummings articulated the same

remedial legislative objective in his letter to White House

Counsel. In that letter, he explained that obtaining the

requested financial documents would “help the Committee

determine why the President failed to report . . . payments and

whether reforms are necessary to address deficiencies with

current laws, rules, and regulations.” Cummings Feb. 15 Letter

9. “Since the earliest days of our republic,” the Chairman

emphasized, “Congress has investigated how existing laws are

being implemented and whether changes to the laws are

necessary.” Id. And “[f]or decades,” he concluded, “this has

included laws relating to financial disclosures required of the

President.” Id.

27

What’s more, although the House is under no obligation to

enact legislation after every investigation, the fact that the

House has pending several pieces of legislation related to the

Committee’s inquiry offers highly probative evidence of the

Committee’s legislative purpose. See In re Chapman, 166 U.S.

661, 670 (1897) (“[I]t is certainly not necessary” to identify

future legislation “in advance.”); see also Eastland, 421 U.S.

at 509 (“The very nature of the investigative function—like any

research—is that it takes the searchers up some ‘blind alleys’

and into nonproductive enterprises.”). The House has already

passed one such bill, H.R. 1, which requires Presidents to list

on their financial disclosures the liabilities and assets of any

“corporation, company, firm, partnership, or other business

enterprise in which” they or their immediate family have “a

significant financial interest.” H.R. 1, 116th Cong. § 8012

(2019). Another bill currently pending, H.R. 706, would

require both sitting Presidents and presidential candidates to

“submit to the Federal Election Commission a copy of the

individual’s income tax returns” for the preceding nine or ten

years, respectively. H.R. 706, 116th Cong. § 222 (2019). And

still another, H.R. 745, would amend the Ethics in Government

Act to make the Director of the Office of Government Ethics

removable only for cause. See H.R. 745, 116th Cong. § 3

(2019) (making the Director “subject to removal only for

inefficiency, neglect of duty, or malfeasance in office”).

Despite these indicia of legislative purpose, the Trump

Plaintiffs contend that “[t]he subpoena’s actual purpose is law

enforcement.” Appellants’ Reply Br. 9 (emphasis added). They

make four principal arguments.

First, the Trump Plaintiffs question whether the

Committee’s avowals of legislative purpose are genuine.

Quoting our court’s opinion in Shelton v. United States, they

argue that “Congress cannot cure [a] constitutional violation

28

through ‘the mere assertion of a need to consider remedial

legislation.’” Appellants’ Br. 34 (quoting Shelton, 404 F.2d at

1297). But the Trump Plaintiffs stop at a key conjunction.

“[T]he mere assertion of a need to consider ‘remedial

legislation’ may not alone justify an investigation,” we

explained in Shelton. 404 F.2d at 1297. “[B]ut,” we continued,

“when the purpose asserted is supported by references to

specific problems which in the past have been or which in the

future could be the subjects of appropriate legislation, then we

cannot say that a committee of the Congress exceeds its broad

power.” Id. (emphasis added).

That is just this case. We do not confront an insubstantial,

makeweight assertion of remedial purpose. To the contrary,

Chairman Cummings’s April 12 memorandum to his

colleagues lists four investigative topics; his March 20 letter to

Mazars details several “specific concerns raised by the [firm’s]

financial statements,” Cummings Mar. 20 Letter 2; and his

February 15 letter to White House Counsel states his intent to

assess whether “changes to the laws . . . relating to financial

disclosures required of the President” “are necessary,”

Cummings Feb. 15 Letter 9. These “references to specific

problems,” Shelton, 404 F.2d at 1297, together with actual

legislation now pending, see supra at 26–27, are more than

sufficient to demonstrate the Committee’s interest in

investigating possible remedial legislation.

Second, the Trump Plaintiffs contend that, far from

“avow[ing]” a legislative intent, McGrain, 273 U.S. at 178,

Chairman Cummings’s memorandum and statements by other

Representatives have “affirmatively and definitely avowed an

unlawful law-enforcement purpose,” Appellants’ Reply Br. 13

(internal quotation marks omitted); see also Dissenting Op. at

43. In particular, the Trump Plaintiffs take issue with the first

investigative rationale offered in Chairman Cummings’s

29

memorandum: “to investigate whether the President may have

engaged in illegal conduct before and during his tenure in

office.” Cummings Memo 4. But even if such an investigation

would not by itself serve a legitimate legislative purpose, we

can easily reject the suggestion that this rationale spoils the

Committee’s otherwise valid legislative inquiry. Simply put, an

interest in past illegality can be wholly consistent with an intent

to enact remedial legislation.

Take Hutcheson v. United States, in which the Court

considered the activities of a Senate committee tasked with

“investigat[ing] . . . the extent to which criminal . . . practices

or activities” were occurring “in the field of labor-management

relations” and “determin[ing] whether any changes [were]

required in the laws . . . to protect . . . against . . . such practices

or activities.” 369 U.S. 599, 600–01 (1962) (quoting S. Res. 74,

85th Cong. (1957)). The president of the United Brotherhood

of Carpenters and Joiners of America, called before the

committee to testify regarding whether he had used “union

funds . . . to ‘fix’ a 1957 criminal investigation . . . by a state

grand jury,” id. at 603, refused to answer such questions and

was convicted of criminal contempt, see id. at 605. Even

though “[t]he Committee’s concern . . . was to discover

whether . . . [union] funds . . . had been used . . . to bribe a state

prosecutor,” and even though “[i]f these suspicions were

founded, they might . . . have warranted a separate state

prosecution for obstruction of justice,” the Supreme Court

nonetheless affirmed the contempt conviction. Id. at 617–18.

What mattered to the Court was that the committee’s

investigation into the details of the defendant’s illegal conduct

“would have supported remedial federal legislation for the

future.” Id. at 617. “[S]urely,” the Court concluded, “a

congressional committee . . . engaged in a legitimate legislative

investigation need not grind to a halt whenever . . . crime or

30

wrongdoing is disclosed.” Id. at 618 (internal citations

omitted).

Sinclair teaches a similar lesson. Shortly before the Senate

summoned the oil tycoon Sinclair to testify, it had passed a

joint resolution “recit[ing] that [his company’s] leases . . . were

executed under circumstances indicating fraud and corruption”

and “direct[ing] the President . . . to prosecute such . . .

proceedings, civil and criminal, as were warranted by the

facts.” 279 U.S. at 289. When Sinclair appeared for the hearing,

the Senate committee considered but rejected a motion that

would have prohibited “inquir[ies] . . . relat[ing] to pending

controversies before any of the Federal courts in which Mr.

Sinclair [was] a defendant.” Id. at 290. “If we do not examine

Mr. Sinclair about those matters,” one committee member

lamented, “there is not anything else to examine him about.”

Id. Despite all this, the Court held that “[t]he record [did] not

sustain [Sinclair’s] contention that the investigation was

avowedly not in aid of legislation.” Id. at 295. The failed

motion and the member’s statement were “not enough to show

that the committee intended to depart from the purpose to

ascertain whether additional legislation might be advisable,”

explained the Court, because “[i]t [was] plain that investigation

of the matters involved in” pending or future “suits . . . might

directly aid in respect of legislative action.” Id.

So too here. Like the committees in Hutcheson and

Sinclair, the Oversight Committee has expressed an interest in

determining whether and how illegal conduct has occurred. But

also like the committees in Hutcheson and Sinclair—indeed,

even more so—the Oversight Committee has repeatedly

professed that it seeks to investigate remedial legislation. In

fact, the House has even put its legislation where its mouth is:

it has passed one bill pertaining to the information sought in

the subpoenas and is considering several others. See supra at

31

26–27. The Committee’s interest in alleged misconduct,

therefore, is in direct furtherance of its legislative purpose.

Third, the Trump Plaintiffs argue that the subpoena’s

“laser-focus[] on the businesses and finances of one person”

evinces “a particularity that is the hallmark of executive and

judicial power.” Appellants’ Br. 35. But again, Supreme Court

precedent forecloses this contention. In McGrain, for example,

the Senate authorized a select committee “to investigate . . . the

alleged failure of Harry M. Daugherty, Attorney General of the

United States, to prosecute properly violators of” anti-trust

laws and “further directed [the committee] to inquire into,

investigate and report . . . the activities of the said Harry M.

Daugherty, Attorney General, and any of his assistants . . .

which would in any manner tend to impair their efficiency or

influence as representatives of the government of the United

States.” 273 U.S. at 151–52 (internal quotation marks omitted).

Untroubled by the resolution’s “direct reference to the then

Attorney General by name,” the Court held that “the resolution

and proceedings” of the investigatory committee “g[a]ve no

warrant for thinking the Senate was attempting or intending to

try the Attorney General . . . before its committee for any crime

or wrongdoing.” Id. at 179.

The lesson of McGrain is that an investigation may

properly focus on one individual if that individual’s conduct

offers a valid point of departure for remedial legislation. Again,

such is the case here. It is not at all suspicious that the

Committee would focus an investigation into presidential

financial disclosures on the accuracy and sufficiency of the

sitting President’s filings. That the Committee began its inquiry

at a logical starting point betrays no hidden law-enforcement

purpose.

Finally, the Trump Plaintiffs detect something untoward in

32

the Committee’s interest in the President’s finances. “If this

subpoena is valid,” they argue, “then Congress is free to

investigate every detail of a President’s personal life, with

endless subpoenas to his accountants, bankers, lawyers,

doctors, family, friends, and anyone else with information that

a committee finds interesting.” Appellants’ Reply Br. 24.

But unlike a subpoena to, say, a doctor or an attorney, the

congressional request at issue in this case implicates no

material subject to a recognized legal privilege or an asserted

property interest. See supra at 20. Moreover, as the Court

explained in Sinclair, although Congress may not make

“unauthorized, arbitrary or unreasonable inquiries” into

individuals’ “personal and private affairs,” Congress most

assuredly does possess authority “to require pertinent

disclosures in aid of its . . . constitutional power” when those

affairs become a “matter of [public] concern” amenable to a

legislative solution. 279 U.S. at 292, 294–95; see also

Barenblatt, 360 U.S. at 127 (explaining that “Congress

may . . . constitutionally require an individual to disclose his

political relationships or other private affairs” if “in relation to”

“a valid legislative purpose”). The same rationale applies here.

Whether current financial disclosure laws are successfully

eliciting the right information from the sitting President,

occupant of the highest elected office in the land, is

undoubtedly “a matter of concern to the United States.”

Sinclair, 279 U.S. at 294; cf. Washington Post Co. v. U.S.

Department of Health & Human Services, 690 F.2d 252, 265

(D.C. Cir. 1982) (“[T]he [Ethics in Government] Act shows

Congress’ general belief that public disclosure of conflicts of

interest is desirable despite its cost in loss of personal

privacy.”).

In its amicus brief, the Justice Department argues that the

subpoena is invalid for still another reason, namely that the

33

House (or at least the Committee) failed to offer a “clear,

specific statement . . . of the legislative purpose that it believes

justifies its subpoena.” Department Br. 12 (emphasis added).

In the Department’s view, general indicia of legislative purpose

are not enough; the House must identify “with sufficient

particularity the subject matter of potential legislation.” Id. at

14. In support, the Department cites Watkins, where, it argues,

“the Supreme Court demanded just such a clear statement of

purpose.” Id. at 13. But the Watkins Court demanded no such

thing. That case concerned not the legitimacy of an

investigative subpoena, but rather an appeal of a criminal

conviction for contempt of Congress under 2 U.S.C. § 192,

which makes it a misdemeanor to refuse to answer any question

posed by a member of Congress “pertinent to the question

under inquiry.” Watkins, 354 U.S. at 207 (quoting 2 U.S.C.

§ 192). Because the committee’s “authorizing resolution, the

remarks of the chairman or members of the committee, [and]

even the nature of the proceedings themselves,” id. at 209,

failed to articulate “the ‘question under inquiry,’” id. at 214,

the Court reversed the conviction, holding that an individual

risking criminal contempt must “have knowledge of the subject

to which the interrogation is deemed pertinent . . . with the same

degree of explicitness and clarity that the Due Process Clause

requires in the expression of any element of a criminal

offense.” Id. at 208–09. The fact that the Watkins Court probed

the committee’s statements in an attempt to remedy “the vice

of vagueness”—present for criminal contempt of Congress, “as

in all other crimes,” id. at 209—provides no support for the

Department’s contention that Congress must identify its

legislative purpose “with sufficient particularity” in order to

justify an investigative subpoena. See Barenblatt, 360 U.S. at

123 (explaining that in Watkins, the Court “rest[ed] [its]

decision on [the] ground” that “a conviction for contempt

under 2 U.S.C. § 192 cannot stand unless the questions asked

are pertinent to the subject matter of the investigation”).

34

Far from finding support in Watkins, the Department’s

argument conflicts with binding Supreme Court precedent.

Over a century ago, the Court made clear in In re Chapman that

it is “certainly not necessary that the resolutions should declare

in advance what the [Congress] meditate[s] doing when the

investigation [i]s concluded.” 166 U.S. at 670. The Court has

twice reiterated this holding, stating in McGrain that “it was

not essential that the Senate declare in advance what it

meditated doing,” 273 U.S. at 172, and then in Eastland—

issued nearly two decades after Watkins—that “to be a valid

legislative inquiry there need be no predictable end result,” 421

U.S. at 509. After all, the purpose of an investigation, as the

Court explained in McGrain, is to gather “information

respecting the conditions which the legislation is intended to

affect or change,” 273 U.S. at 174–75; it is, as the Court added

in Eastland, “research” that informs future Congressional

action, 421 U.S. at 509. Congress’s decision whether, and if so

how, to legislate in a particular area will necessarily depend on

what information it discovers in the course of an investigation,

and its preferred path forward may shift as members educate

themselves on the relevant facts and circumstances. Requiring

Congress to state “with sufficient particularity” the legislation

it is considering before it issues an investigative subpoena

would turn the legislative process on its head.

Moreover, it is not at all clear what such a statement would

accomplish. The Department suggests that a clear statement

rule is “mandate[d]” by the “particular separation-of-powers

issues that arise when Congress attempts to compel the

President to produce information.” Department Br. 9. Setting

aside the fact that this subpoena, which is addressed to Mazars,

“compel[s] the President to produce” nothing, we still see no

justification in the Department’s brief for why specificity is

required in this scenario as opposed to any other. To be sure,

35

“[t]he President occupies a unique position in the constitutional

scheme.” Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). But

that unique position has little bearing on our ability to

determine whether Congress has strayed from the realm of

legitimate legislation into improper law enforcement—an

inquiry that, as we have just demonstrated, we can

meaningfully conduct without the specific articulation the

Department seeks. Nor does the Department explain how

specificity would meaningfully protect the President beyond

simply burdening Congress’s exercise of its own Article I

power.

The Department’s argument also ignores how much

Congress has already revealed about its legislative objectives.

In his February 15 letter and April 12 memorandum, Chairman

Cummings explained that the Committee was reviewing

“multiple laws and legislative proposals under [its]

jurisdiction,” Cummings Memo 4, including whether “changes

. . . are necessary” to “laws relating to financial disclosures

required of the President,” Cummings Feb. 15 Letter 9. The

House has already passed H.R. 1, which would require

Presidents to disclose businesses in which they or their

immediate families have significant interests, and is

considering legislation which would require Presidential

candidates and Presidents to submit their income tax returns to

the Federal Election Commission and make the Director of the

Office of Government Ethics removable only for cause. See

supra at 26–27. To be sure, as the Department points out, the

House passed H.R. 1 without the information the subpoena

seeks. But House passage is far from the end of the legislative

process. Information revealed by the subpoena could inform

the Senate as it considers the bill, as well as any subsequent

conference committee or the House itself, should it reconsider

the bill post-conference.

36

Based on all the foregoing, we conclude that in issuing the

challenged subpoena, the Committee was engaged in a

“legitimate legislative investigation,” Hutcheson, 369 U.S. at

618, rather than an impermissible law-enforcement inquiry.

We next assess whether that legislative investigation concerned

a subject “on which legislation could be had.” McGrain, 273

U.S. at 177.

B.

Because “Congress may only investigate into those areas

in which it may potentially legislate or appropriate,”

Barenblatt, 360 U.S. at 111, a congressional committee may

issue only those subpoenas that are “intended to gather

information about a subject on which legislation may be had,”

Eastland, 421 U.S. at 508; see also McGrain, 273 U.S. at 177

(stating that “the subject” of investigation “was one on which

legislation could be had”). The Trump Plaintiffs argue that the

challenged subpoena fails this test because, in their view, “[t]he

subpoena could not result in valid legislation regarding the

President.” Appellants’ Reply Br. 17.

In addressing this argument, we emphasize that the

relevant inquiry is whether legislation “may be had,” Eastland,

421 U.S. at 508 (emphasis added), not whether constitutional

legislation will be had. Accordingly, we first define the

universe of possible legislation that the subpoena provides

“information about,” id., and then consider whether Congress

could constitutionally enact any of those potential statutes.

We must, however, tread carefully. As the Committee

points out, our limited judicial role gives us no authority to

reach out and “[s]trik[e] down a statute before it is even

enacted.” Appellee’s Br. 41; see also Nashville, Chattanooga

& St. Louis Railway v. Wallace, 288 U.S. 249, 262 (1933)

(explaining that courts may not make “abstract

37

determination[s] . . . of the validity of a statute” or issue

“decision[s] advising what the law would be on an uncertain or

hypothetical state of facts”). That said, as the Trump Plaintiffs

observe, see Appellants’ Br. 21 (“[b]ecause valid legislation

could not ‘be had’ if it would be unconstitutional, the court

ha[s] to decide whether this subpoena is designed to advance

unconstitutional legislation”), the only way to determine

whether the Committee’s investigation informs “a subject on

which legislation may be had” is to ask, abstract as the inquiry

may be, whether “legislation may be had” on that “subject,”

Eastland, 421 U.S. at 508 (emphasis added). Although we must

avoid passing on the constitutionality of hypothetical statutes,

we must also fulfill our responsibility to decide the case in front

of us, even if the road to resolution passes through an issue of

constitutional law. See Cohens v. Virginia, 19 U.S. 264, 404

(1821) (“The judiciary cannot, as the legislature may, avoid a

measure because it approaches the confines of the

[C]onstitution. . . . [W]e must decide [a case] if it be brought

before us.”). Accordingly, in order to resolve this case, we need

to identify a statutory litmus test. The Committee and the

Trump Plaintiffs each offer one, but neither quite fits our needs.

The Committee urges us to consider whether any law

“concerning government ethics and conflicts of interest

affecting Executive Branch officials” could pass constitutional

muster. Appellee’s Br. 30. But this test is too broad. The

challenged subpoena—or, more specifically, the portion of the

subpoena that seeks a sitting President’s financial

information—would produce no relevant “information about,”

id., laws that apply to ordinary Executive Branch employees.

Because “[t]he President occupies a unique position in the

constitutional scheme,” Fitzgerald, 457 U.S. at 749,

Congress’s constitutional authority to regulate the President’s

conduct is significantly more circumscribed than its power to

regulate that of other federal employees, see supra at 35–36.

38

Just as a congressional committee could not subpoena the

President’s high school transcripts in service of an

investigation into K-12 education, nor subpoena his medical

records as part of an investigation into public health, it may not

subpoena his financial information except to facilitate an

investigation into presidential finances. Thus, to determine

whether the records of pre-Candidate, Candidate, and President

Trump provide “information about a subject on which

legislation may be had,” Eastland, 421 U.S. at 508, we must

train our attention on laws that apply to Presidents (and

presidential hopefuls).

In that vein, the Trump Plaintiffs urge us to focus on the

constitutionality of laws that “impose conflict-of-interest

restrictions on the President.” Appellants’ Br. 37. As the Trump

Plaintiffs point out, such restrictions raise difficult

constitutional questions. Statutes mandating divestment from

financial interests or recusal from conflicted matters might

impermissibly “disempower [Presidents] from performing

some of the functions prescribed [by] the Constitution or . . .

establish a qualification for . . . serving as President . . . beyond

those contained in the Constitution.” Memorandum from

Laurence H. Silberman, Deputy Attorney General, to Richard

T. Burress, Office of the President, Re: Conflict of Interest

Problems Arising out of the President’s Nomination of Nelson

A. Rockefeller to be Vice President Under the Twenty-Fifth

Amendment to the Constitution 5 (Aug. 28, 1974) (“Silberman

Memo”). But we need not grapple with those constitutional

issues because the Mazars subpoena seeks information related

to a class of statutes that impose far fewer burdens than laws

requiring Presidents to change their behavior based on their

financial holdings. This less burdensome species of law would

require the President to do nothing more than disclose financial

information. Such statutes might amend the Ethics in

Government Act, for example, to require Presidents and

39

presidential candidates to file reports more frequently, to

include information covering a longer period of time, or to

provide new kinds of information such as past financial

dealings with foreign businesses or current liabilities of closely

held companies. We take this category of statutes as the

appropriate object of our litmus test in this case.

The Trump Plaintiffs argue that the Constitution prohibits

even these. Relying on Chief Justice Burger’s concurrence in

Nixon v. Fitzgerald, they contend that financial disclosure laws

unconstitutionally “‘impinge[] on and hence interfere[] with

the independence that is imperative to the functioning of the

office of a President.’” Appellants’ Br. 44 (quoting Fitzgerald,

457 U.S. at 761 (Burger, C.J., concurring)).

But that is not the rule—at least not quite. As the Court

explained in Nixon v. Administrator of General Services (Nixon

II), the mere act of “regulat[ing] . . . Presidential materials,”

“without more,” does not “constitute[] . . . a violation of the

principle of separation of powers.” 433 U.S. 425, 441 (1977).

Instead, rejecting “the argument that the Constitution

contemplates a complete division of authority between the

three branches,” the Court reaffirmed its reliance on “the more

pragmatic, flexible approach of Madison in the Federalist[]

Papers.” Id. at 442–43. “In . . . dividing and allocating the

sovereign power among three coequal branches,” the Court

explained, “the Framers of the Constitution” did not intend “the

separate powers . . . to operate with absolute independence.”

Id. at 443 (internal quotation marks and emphasis omitted). The

Court therefore announced the following test: “in determining

whether [a statute] disrupts the proper balance between the

coordinate branches, the proper inquiry focuses on the extent

to which it prevents the Executive Branch from accomplishing

its constitutionally assigned functions.” Id. Applying this rule,

we have no basis for concluding that complying with financial

40

disclosure laws would in any way “prevent[] the [President]

from accomplishing [his] constitutionally assigned functions.”

Id.

The most persuasive evidence on this score comes from

the Constitution itself. The very same document that “vest[s]”

“[t]he executive Power . . . in [the] President,” U.S. Const.

art. II, § 1, cl. 1, and directs him to “take Care that the Laws be

faithfully executed,” id. art. II, § 3, also imposes two separate

requirements pertaining to the President’s private finances. The

first, the so-called Domestic Emoluments Clause, prohibits the

President from receiving “any . . . Emolument” from the

federal or state governments other than a fixed

“Compensation” “for his Services.” Id. art. II, § 1, cl. 7. And

the second, the so-called Foreign Emoluments Clause,

prohibits any federal official “holding any Office of Profit or

Trust”—the President included—from “accept[ing] . . . any

present, Emolument, Office, or Title, of any kind whatever,

from any King, Prince, or foreign State” without “the Consent

of the Congress.” U.S. Const. art. I, § 9, cl. 8; see also

Applicability of the Emoluments Clause & the Foreign Gifts &

Decorations Act to the President’s Receipt of the Nobel Peace

Prize, O.L.C. slip op. at 4, 2009 WL 6365082, at *4 (Dec. 7,

2009) (“The President surely ‘hold[s] an[] Office of Profit or

Trust’ . . . .” (alterations in original) (quoting U.S. Const. art. I,

§ 9, cl. 8)). If the President may accept no domestic

emoluments and must seek Congress’s permission before

accepting any foreign emoluments, then surely a statute

facilitating the disclosure of such payments lies within

constitutional limits.

The United States Code, too, provides ample precedent for

laws that regulate Presidents’ finances and records. Cf. Nixon

II, 433 U.S. at 445 (noting the “abundant statutory precedent

for the regulation and mandatory disclosure of documents in

41

the possession of the Executive Branch”). The Foreign Gifts

and Decorations Act requires all federal employees, including

the President, to “file a statement” regarding any gift they

receive “of more than minimal value.” 5 U.S.C. § 7342(c). The

STOCK Act prohibits all “executive branch employees,”

including the President, from “us[ing] nonpublic information

derived from such person’s position . . . as a means for making

a private profit.” Pub. L. No. 112-105, §§ 2, 9, 126 Stat. 291,

291, 297. And the Presidential Records Act—whose

constitutionality the Trump Plaintiffs readily concede—

establishes a whole statutory scheme for “categoriz[ing],”

“fil[ing],” “dispos[ing]” of, and “manag[ing]” “Presidential

records.” 44 U.S.C. § 2203; see Appellants’ Br. 40 (“The

Presidential Records Act . . . did not cause a disruption of

executive functions significant enough to trigger separation of

powers analysis” (internal quotation marks omitted)). History

discloses no evidence that these statutes have disrupted

presidential functions.

The history of past Presidents’ financial disclosures offers

a particularly useful guide. As explained above, see supra at 3–

4, the Ethics in Government Act requires Presidents to file

periodic reports detailing, among other things, “[t]he source,

type, and [approximate] amount or value of income . . . from

any [non-federal] source,” “[t]he identity and [approximate]

value of . . . total liabilities owed,” and “the date . . . and

[approximate] value of any purchase, sale or exchange [of real

property and securities] during the preceding calendar year.”

5 U.S.C. app. 4 § 102(a). Every President to have served since

the Ethics in Government Act became law in 1978—Presidents

Carter, Reagan, H.W. Bush, Clinton, W. Bush, Obama, and

now Trump—has complied with these disclosure requirements.

See, e.g., Philip Taubman, Carter Drops ‘Blind Trust’ Secrecy

and Divulges Finances for 1978-9, N.Y. Times, May 31, 1979,

at A1; Edward T. Pound, Reagan’s Worth Put at $4 Million,

42

N.Y. Times, Feb. 23, 1981, at A1; Associated Press,

President’s Trust Grows in Value, N.Y. Times, May 15, 1992,

at A17; Stephen Labaton, Most of Clintons’ Wealth Held by

Mrs. Clinton, Disclosure Form Shows, N.Y. Times, May 18,

1994, at A20; Richard W. Stevenson, Bushes’ Assets Put at

$8.8 Million in Filing, N.Y. Times, May 16, 2003, at A22; U.S.

Office of Government Ethics, Presidential and Vice

Presidential Financial Disclosure Reports,

https://extapps2.oge.gov/201/Presiden.nsf/President%20and%

20Vice%20President%20Index (financial disclosure reports of

Presidents Obama and Trump); see also Appellants’ Br. 44

(acknowledging that “President [Trump] has voluntarily

complied with those statutory requirements”). In fact,

Presidents Carter, Reagan, H.W. Bush, Clinton, W. Bush, and

Obama exceeded statutory disclosure requirements by

releasing their personal federal income tax returns to the public.

See Presidential Tax Returns, TaxNotes,

taxnotes.com/presidential-tax-returns (collecting presidential

tax records).

Of course, as the Trump Plaintiffs point out, “compliance

is not the measure of constitutionality.” Appellants’ Br. 44. But

when asked to decide whether an act of Congress “disrupts the

proper balance between the coordinate branches,” Nixon II, 433

U.S. at 443, a court would be foolish to ignore those branches’

prior pattern of conflict—or, as here, cooperation. See id. at 441

(finding it significant that “[n]either President Ford nor

President Carter support[ed] [former-President Nixon’s]

claim” that the challenged statute’s “regulation of the

disposition of Presidential materials . . . constitutes, without

more, a violation of the principle of separation of powers”); cf.

Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091 (2015) (“In

separation-of-powers cases this Court has often ‘put significant

weight upon historical practice.’” (quoting NLRB v. Noel

Canning, 573 U.S. 513, 524 (2014))). Though not dispositive,

43

the fact that every President during the last four decades has

filed financial disclosures offers persuasive evidence that such

disclosures neither “prevent[]” nor “disrupt[],” Nixon II, 433

U.S. at 443, the President’s efforts to “take Care that the Laws

be faithfully executed,” U.S. Const. art. II, § 3.

To be sure, it is possible that some hypothetical statute

could go too far. One could certainly imagine disclosure

mandates so onerous that they begin to “prevent[] the

Executive Branch from accomplishing its constitutionally

assigned functions.” Nixon II, 433 U.S. at 443; see, e.g., Oral

Arg. Tr. 17 (positing “a statute [requiring] the President . . . to

submit 100,000 pages of financial disclosures and [to] meet

with Congress once a month to discuss them”). But to accept

the Trump Plaintiffs’ suggestion that Congress may impose no

disclosure requirements whatsoever on the President, see Oral

Arg. Tr. 51–52 (stating it is “very difficult to think of” a

constitutional law Congress “could pass” with respect to the

President)—or, put another way, that the challenged subpoena

could result in no valid legislation—would be to return to an

“archaic view of the separation of powers” that “requir[es]

three airtight departments of government,” Nixon II, 433 U.S.

at 443 (internal quotation marks omitted). That is not the law.

Instead, “our constitutional system imposes upon the

Branches a degree of overlapping responsibility, a duty of

interdependence as well as independence[,] the absence of

which ‘would preclude the establishment of a Nation capable

of governing itself effectively.’” Mistretta v. United States, 488

U.S. 361, 381 (1989) (quoting Buckley v. Valeo, 424 U.S. 1,

121 (1976)). As the Supreme Court has observed, “separation

of powers does not mean that the branches ‘ought to have no

partial agency in, or no controul over, the acts of each other.’”

Clinton, 520 U.S. at 702–03 (quoting The Federalist No. 47, at

325–326 (J. Cooke ed.1961) (emphasis in original)); see also

44

Nixon II, 433 U.S. at 442-43 & n.5 (affirming “the more

pragmatic, flexible approach of Madison in the Federalist

Papers and later of Mr. Justice Story” to the separation of

powers); Nixon, 418 U.S. at 703 (“In designing the structure of

our Government and dividing and allocating the sovereign

power among three coequal branches, the Framers of the

Constitution sought to provide a comprehensive system, but the

separate powers were not intended to operate with absolute

independence.”). As the Nixon cases teach, the “proper inquiry

focuses on the extent to which [another branch’s actions]

prevent[] the Executive branch from accomplishing its

constitutionally assigned functions.” Nixon II, 433 U.S. at 443

(citing Nixon, 418 U.S. at 711-712). Congress can require the

President to make reasonable financial disclosures without

upsetting this balance.

The Trump Plaintiffs challenge the constitutionality of

legislation that “may be had” on another basis. Eastland, 421

U.S. at 508. Drawing on the principle announced in Powell v.

McCormack, 395 U.S. 486 (1969), and U.S. Term Limits,

Inc. v. Thornton, 514 U.S. 779 (1995), that “[n]either Congress

nor the states can add to the constitutional qualifications for

holding federal elective office,” Walker v. United States, 800

F.3d 720, 723–24 (6th Cir. 2015), they argue that imposing

conflict-of-interest laws on the President would impermissibly

“change or expand the qualifications for serving as President,”

Appellants’ Br. 38 (citing Powell and Thornton). But once

again, we need not reach this issue. Regardless of whether

Congress may require Presidents to “eliminat[e] [their]

financial conflicts” through divestment or recusal, the Trump

Plaintiffs offer no reason to suspect that a statute requiring

nothing more than disclosure of such conflicts might also

“‘establish a qualification for . . . serving as President.’”

Appellants’ Br. 38 (quoting Silberman Memo 5). Financial

disclosure laws would not, as in Powell, prevent a “duly

45

elected” official from assuming office, 395 U.S. at 550, nor, as

in U.S. Term Limits, add a term limit to “the exclusive

qualifications set forth in the text of the Constitution,” 514 U.S.

at 827; cf. Appellants’ Br. 39 (conceding that “[t]he

Presidential Records Act does not add or alter the qualifications

for office”). In the end, laws requiring disclosure exclude

precisely zero individuals from running for or serving as

President; regardless of their financial holdings, all

constitutionally eligible candidates may apply.

In sum, we detect no inherent constitutional flaw in laws

requiring Presidents to publicly disclose certain financial

information. And that is enough. Without treading onto any

other potentially fertile grounds from which constitutional

legislation could flower, we conclude that given the

constitutionally permissible options open to Congress in the

field of financial disclosure, the challenged subpoena seeks

“information about a subject on which legislation may be had.”

Eastland, 421 U.S. at 508.

To the dissent, however, this makes no difference.

Although acknowledging that the Committee is pursuing a

“valid legislative inquiry,” the dissent insists that the Mazars

subpoena is nonetheless invalid because it “seeks to investigate

individual suspicions of criminality against the President,” an

inquiry that “may be pursued only through impeachment.”

Dissenting Op. at 44. In support, the dissent claims to rely on

the “text and structure of the Constitution, its original meaning

and longstanding practice.” Id. at 3.

Of course, the Constitution always serves as our starting

point, and particularly in separation-of-powers disputes, we

“put significant weight upon historical practice.” Zivotofsky,

135 S. Ct. at 2091 (internal quotations omitted). Indeed, this is

a path the Supreme Court and this court have already

46

trod. Nearly a century of precedent has laid out an established

test that resolves this inter-branch dispute in a way that, unlike

the dissent, respects the co-equal status and roles of both the

legislative and executive branches. Settled Supreme Court

precedent teaches that—at least where, as here, no party argues

that compliance with the subpoena would impair the

President’s execution of the Article II power—the Constitution

protects both branches’ prerogatives by determining whether

the subpoena serves “a valid legislative purpose.” Barenblatt,

360 U.S. at 127. Both the Trump Plaintiffs and the Department

of Justice agree that this is the relevant inquiry. See Appellants’

Br. 16 (“When Congress issues subpoenas in aid of valid

legislation, it needs a legitimate legislative purpose”);

Department Br. 10. (“The court must first determine whether

the subpoena serves a ‘valid legislative purpose.’”).

To be sure, a Congress pursuing a legitimate legislative

objective may, as the many examples recounted in the dissent

demonstrate, choose to move from legislative investigation to

impeachment. But the dissent cites nothing in the Constitution

or case law—and there is nothing—that compels Congress to

abandon its legislative role at the first scent of potential

illegality and confine itself exclusively to the impeachment

process. Nor does anything in the dissent’s lengthy recitation

of historical examples dictate that result. All involved

investigations targeted at individual conduct; none involved a

Congressional effort to investigate the need to amend existing

laws or enact remedial legislation. Instead, those examples

merely demonstrate that Congress has, at various points

throughout our history, debated and decided when it wishes to

shift from legislating to impeaching. Where legislation may be

had—and especially here, where bills are pending and no

intrusion on the President’s execution of his official duties is

alleged—the Constitution assigns that decision to Congress.

47

Unable to prevail under the test the Supreme Court has

enforced for more than a century, the dissent moves the

goalposts. The dissent proposes a brand-new test for the

President (and other “impeachable officials,” Dissenting Op. at

44) that would enfeeble the legislative branch. According to the

dissent, once some Members—or perhaps just one Member—

raise “suspicions of criminality” by an impeachable official,

Congress must “end[]” all legislative investigation and either

do nothing at all or “move[] that part of the investigation into

impeachment.” Dissenting Op. at 19.

In other words, Congress must either initiate the grave and

weighty process of impeachment or forgo any investigation in

support of potential legislation. Under the dissent’s novel test,

“even a valid legislative purpose” cannot “justify” the

investigation. Id. at 19. The dissent identifies nothing in the

text, structure, or original meaning of Article I or Article II of

the Constitution to support such a sweeping rule of legislative

paralysis. As the Trump Plaintiffs and the Department of

Justice agree, the Supreme Court has said just the opposite: “a

congressional committee which is engaged in a legitimate

legislative investigation need not grind to a halt whenever . . .

crime or wrongdoing is disclosed.” Hutcheson, 369 U.S. at 618.

The dissent tries to house its theory in the Supreme Court’s

decision in McGrain. Quoting the Court’s observation that an

investigation would be invalid “if the Senate was ‘attempting

or intending to try the Attorney General at its bar or before its

committee for crime or wrongdoing,’” the dissent insists that

“[i]t was essential to the Court’s decision that the investigation

did not target the unlawful behavior of the Attorney General,”

Dissenting Op. at 49 (quoting McGrain, 273 U.S. at 179–80)

(emphasis added). But as the sentence quoted by the dissent

reveals, the Court said nothing about “targeting” specific

conduct. Instead, the Court made clear that the investigation

48

was not invalid because the authorizing “resolution, like the

charges which prompted its adoption . . . [made] reference to

[the Attorney General] by name,” nor was it “a valid objection

to the investigation that it might possibly disclose crime or

wrongdoing on his part.” McGrain, 273 U.S. at 179–80.

Indeed, the district court in McGrain had adopted the dissent’s

view, invalidating the subpoena because the authorizing

resolution alleged “specific instances of . . . neglect” and the

Senate was “proposing . . . to determine the guilt of the

Attorney General of the shortcomings and wrongdoings set

forth in th[ose] resolutions.” Id. at 177. The Senate was, as the

district court saw it, “exercising the judicial function,” a power

“impliedly negatived by th[e] Constitution, in its provision

conferring the sole power of impeachment on the House of

Representatives.” Ex parte Daugherty, 299 F. 620, 639 (S.D.

Ohio 1924). The Supreme Court labeled this reasoning

“wrong,” explaining “that the object of the investigation . . .

was to obtain information for legislative purposes.” McGrain,

273 U.S. at 177.

The dissent points to McGrain’s language that “[i]t [wa]s

not as if an inadmissible or unlawful object were affirmatively

and definitely avowed,” arguing that, here, the subpoena is

invalid because “[t]he Committee has ‘affirmatively and

definitely avowed’ its suspicions of criminality against the

President.’” Dissenting Op. at 50–51 (quoting McGrain, 273

U.S. at 180). The dissent misreads that sentence. According to

the Court, the Senate resolution in McGrain sought

“information necessary as a basis for such legislative and other

action as the Senate may deem necessary and proper.” 273

U.S. at 179 (emphasis added). But there was “no other action,”

the Court explained, “which would be within the power of the

Senate.” Id. It was the Senate’s “indefinite and untenable

suggestion” of non-legislative action—not an avowal of

suspicions of individual wrongdoing—that the Court held did

49

not “invalidate[] the entire proceeding.” Id. McGrain thus

squarely forecloses the dissent’s theory.

It is unsurprising that no case law supports the

dissent. Under its view, Congress’s power to investigate, when

it comes to the President and all other impeachable officials,

would no longer be “co-extensive with [its] power to legislate.”

Quinn, 349 U.S. at 160. The dissent would reorder the very

structure of the Constitution. Throughout history, the

Constitution has left to Congress the judgment whether to

commence the impeachment process. But the dissent’s

approach would not even allow Congress to make the

quintessentially legislative judgment that some concerns about

potential misconduct or illegality are better addressed through

oversight and legislation than impeachment. Worse still, the

dissent’s novel approach would now impose upon the courts

the job of ordering the cessation of the legislative function and

putting Congress to the Hobson’s Choice of impeachment or

nothing.

To be sure, the dissent would still allow Congress to “enact

legislation.” Dissenting Op. at 64. But it would have to do so

uninformed and with its oversight function informationally

crippled. This would mean that, at times when oversight and

legislation are most urgent, such as to prevent executive branch

overreach or to keep officials’ behavior within ethical

boundaries going forward, Congress would be legislatively

hamstrung unless it were to pull the impeachment trigger. And

if Congress chooses not to pursue impeachment, or if

impeachment is unavailable because Congress believes the

alleged misconduct falls short of a high crime or misdemeanor,

then there can be no investigation of—and thus no viable

legislative check on—the President at all. A proposition that so

strips Congress of its power to legislate would enforce only the

Executive’s arrogation of power, not the separation of powers.

50

At bottom, this subpoena is a valid exercise of the

legislative oversight authority because it seeks information

important to determining the fitness of legislation to address

potential problems within the Executive Branch and the

electoral system; it does not seek to determine the President’s

fitness for office.

C.

Thus far we have concluded that the Committee is

pursuing a legislative, non-law-enforcement purpose and that

at least one kind of constitutional legislation may be had on the

subject matter of the Committee’s investigation. What is left to

decide is whether the documents requested in this subpoena are

relevant to that investigation. The Trump Plaintiffs insist that

at least some are not.

As the Watkins Court described it, the requirement that a

subpoena request only those documents that are relevant to a

committee’s legitimate investigation “is a jurisdictional

concept of pertinency drawn from the nature of a congressional

committee’s source of authority.” 354 U.S. at 206. Though

complex sounding, the relevancy requirement functions merely

as a corollary to the other restraints on congressional

committees’ investigative powers: if a committee could

subpoena information irrelevant to its legislative purpose, then

the Constitution would in practice impose no real limit on

congressional investigations.

The Supreme Court has used various formulations to

describe the relevancy standard that applies to congressional

subpoenas. In McGrain, the Court held that Congress could

subpoena any information that would “materially aid[]” a

legitimate investigation. 273 U.S. at 177. In Watkins, it

explained that committees may subpoena information “to be

used . . . in coping with a problem that falls within [their]

51

legislative sphere.” 354 U.S. at 206. And in McPhaul v. United

States, the Court offered not one but two explanations,

validating a subpoena because, in the Court’s words, the

subcommittee had requested records that “were not plainly

incompetent or irrelevant to any lawful purpose . . . , but, on

the contrary, were reasonably relevant to the inquiry.” 364 U.S.

372, 381–82 (1960) (alterations, citations, and internal

quotation marks omitted). We read all these statements, varied

as they are, as conveying essentially the same straightforward

proposition: Congress may subpoena only that information

which is “reasonably relevant” to its legitimate investigation.

Id.; accord Appellants’ Br. 19 (“If the congressional subpoena

is not ‘reasonably relevant to the inquiry,’ then it lacks a

legitimate purpose.” (quoting McPhaul, 364 U.S. at 381–82)).

With this standard in mind, we turn to the challenged

subpoena. Recall that it seeks four categories of documents: for

“calendar years 2011 through 2018,” (1) “statements of

financial condition, annual statements, periodic financial

reports, and independent auditors’ reports,” (2) “underlying,

supporting, or source documents and records,” and (3) related

“memoranda, notes, and communications;” and, (4) “[w]ithout

regard to time,” all related “engagement agreements or

contracts.” Subpoena. For clarity, we label these four

categories Accounting Records, Source Documents, Related

Communications, and Engagement Agreements, respectively.

In our view, all are reasonably relevant to remedial legislation

addressing at least two of the topics listed in Chairman

Cummings’s Memo: the President’s potential “undisclosed

conflicts of interest” and the President’s “report[s] . . . to the

Office of Government Ethics and other federal entities.”

Cummings Memo 4.

We begin with Accounting Records and Source

Documents for calendar years 2014 through 2018. Because

52

then-Candidate and now-President Trump filed financial

disclosure reports covering these years, financial records from

this period are highly relevant to the Committee’s inquiry into

whether Candidate and President Trump “accurately reported

his finances to . . . federal entities,” id., and, by extension,

“whether reforms are necessary to address deficiencies with

current laws, rules, and regulations,” Cummings Feb. 15 Letter

9. A clear line connects the Office of Government Ethics’s May

2018 determination that President Trump’s financial disclosure

form failed to list “a reportable liability” to Michael Cohen,

Apol Letter 1; to Chairman Cummings’s January 2019 requests

to the White House and the Office of Government Ethics for

further information on President Trump’s payments to Cohen;

to Cohen’s February 2019 production of Mazars accounting

documents revealing financial information different from and

additional to Candidate and President Trump’s financial

disclosures; and finally to the Committee’s March 2019 request

and April 2019 subpoena to Mazars. From this logical

progression we discern “no indication” that the subpoena

“follow[ed] from indiscriminate dragnet procedures, lacking in

probable cause for belief that” Mazars “possesse[s]

information which might be helpful to the” Committee.

Barenblatt, 360 U.S. at 134. Tellingly, the Trump Plaintiffs

raise no relevance objection to this subset of subpoenaed

documents.

We next consider the same two categories of records—

Accounting Records and Source Documents—for years 2011

through 2013. According to the Trump Plaintiffs, these

documents are irrelevant to the Committee’s investigation

because they “reach[] back many years before the President

was even a candidate for public office.” Appellants’ Reply Br.

16–17. This is true, but beside the point. The fact that the Ethics

in Government Act currently requires candidates and

Presidents to disclose information for “the preceding calendar

53

year,” e.g., 5 U.S.C. app. 4 § 102(b)(1)(A), hardly forecloses

Congress from amending the Act to require filers to go back a

reasonable amount of additional time to provide a more

accurate financial picture. That is especially true here because

the sitting President possesses financial holdings that are

arguably more complex than past Presidents held, has elected

while in office to handle his finances differently than past

Presidents did, and has declined to voluntarily release the sorts

of tax-return information that past Presidents disclosed. See,

e.g., H.R. 1: Strengthening Ethics: Hearing Before the House

Committee on Oversight and Reform, 116th Cong. 125 (Feb. 6,

2019) (statement of Walter M. Shaub, Jr.) (describing the

President’s decision not “to divest his conflicting financial

interests” as a “radical departure” from previous Presidents).

Congress might therefore reasonably wonder whether the

Ethics in Government Act needs an update, and even pre-

candidacy documents from the President would shed light on

that inquiry. Requiring presidential candidates and Presidents

to disclose earlier years’ information might, for example,

reveal forgiven debts, financial partnerships, or favorable deals

that Congress determines should be disclosed to the public—

that is, “undisclosed conflicts of interest.” Cummings Memo 4.

In fact, at least one bill now pending before the House would

require presidential candidates to “submit to the Federal

Election Commission a copy of [their] income tax returns for

the 10 most recent taxable years.” H.R. 706, 116th Cong.

§ 222(b)(1)(A) (2019).

Of course, the Committee may discover nothing notable in

Mazars’s 2011 through 2013 records. But that is not the test for

relevancy. As the Supreme Court has explained, “[t]he very

nature of the investigative function—like any research—is that

it takes the searchers up some ‘blind alleys’ and into

nonproductive enterprises.” Eastland, 421 U.S. at 509; see also

54

Appellants’ Br. 32 (conceding that “Congress cannot be

penalized if an otherwise valid investigation turns out to be a

dead end”). To be sure, information from the past may at some

point become so stale as to be irrelevant to present inquiries,

but the eight-year mark falls comfortably on the relevant side

of the line.

We last turn to the Committee’s request for Related

Communications and Engagement Agreements. According to

the Trump Plaintiffs, these documents “have nothing to do with

the financial statements the Committee says it needs.”

Appellants’ Reply Br. 17. But again, we think the records’

relevancy is quite clear. As the Committee explains, the import

of the Mazars accounting documents hinges on the conditions

under which they were prepared—for example, whether

Mazars accepted documents “as a given,” whether Mazars

prepared its reports intending third parties to rely upon them,

and whether Mazars had the “power[] or responsibilit[y]” to

conduct independent audits. Oral Arg. Tr. 108. Obviously not

every “agreement[]” or “note[]” will provide this information.

Subpoena. But absent foreknowledge of the documents’

contents, congressional investigators have no way to reliably

determine before issuing a subpoena which specific

communications might reveal relevant information. It is

enough that the categories of information sought are

“reasonably relevant” to the Committee’s legitimate legislative

inquiry.

IV.

Having found no constitutional defect in the Committee’s

subpoena to Mazars, we at last arrive at the question of

authority: “whether the committee [is] authorized” by the full

House “to exact the information” it seeks. Rumely, 345 U.S. at

42–43; see also Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C.

Cir. 1978) (“To issue a valid subpoena, . . . a committee or

55

subcommittee must conform strictly to the resolution

establishing its investigatory powers.”). The Trump Plaintiffs

urge us to interpret the House Rules narrowly to deny the

Committee the authority it claims. But we have no need—and

most important, no authority—to do so.

A.

We start with the proposition, undisputed by the Trump

Plaintiffs, that under the most natural reading of the House

Rules, the full chamber has authorized the Committee to issue

the challenged subpoena. See Oral Arg. Tr. 38–39 (Trump

Plaintiffs conceding that the Rules, under a “normal reading,”

authorize the subpoena). A brief tour through the Rules

confirms as much.

To begin with, the Rules vest the Oversight Committee

with standing authority to institute investigations and issue

subpoenas without first “obtain[ing] such authority . . . by a

separate resolution.” House Rules and Manual, 115th Cong.,

§ 788 note (2017); see also Morton Rosenberg, When Congress

Comes Calling: A Study on the Principles, Practices, and

Pragmatics of Legislative Inquiry 33–34 & 34 n.5 (2017)

(explaining that although “[t]he required authorization from the

full House . . . may take the form of a statute, a resolution, or a

standing rule of the House,” “[t]his [last] mode is the most

common today” (footnotes omitted)). Clause 1(b)(1) of House

Rule XI permits “[e]ach committee [to] conduct at any time

such investigations and studies as it considers necessary.” And

Clause 2(m) of the same Rule authorizes committees—or,

when the committees so choose, their chairs—“to require, by

subpoena or otherwise, . . . the production of such books,

records, correspondence, memoranda, papers, and documents

as [they] consider[] necessary” “[f]or the purpose of carrying

out any of [their] functions and duties under . . . rule X.” House

Rule XI, cl. 2(m)(1); see also id. cl. 2(m)(3)(A)(i) (permitting

56

committees to “delegate[] to the[ir] chair” “[t]he power to

authorize and issue subpoenas”); Rules of the House

Committee on Oversight and Reform, 116th Cong., Rule 12(g)

(2019) (authorizing the Oversight Committee Chair to “issue

subpoenas as provided in House Rule XI, clause 2(m), in the

conduct of any investigation or activity or series of

investigations or activities within the jurisdiction of the

Committee”).

Rule X, in turn, establishes the Oversight Committee’s

jurisdiction, which unquestionably includes financial-

disclosure and other ethics-in-government laws. Rule X, clause

1(n) assigns the Committee jurisdiction over the “[f]ederal civil

service . . . and the status of officers and employees of the

United States,” “[g]overnment management and accounting

measures generally,” and “[p]ublic information and records.”

Pursuant to this clause, the Oversight Committee has for

decades exercised jurisdiction over the Ethics in Government

Act and served as the authorizing committee for the Office of

Government Ethics. See, e.g., 165 Cong. Rec. H1209 (daily ed.

Jan. 24, 2019) (referring H.R. 745, a “bill to amend the Ethics

in Government Act of 1978 to provide for reform in the

operations of the Office of Government Ethics, . . . to the

Committee on Oversight and Reform”); Letter from Jason

Chaffetz, Chairman, House Committee on Oversight and

Government Reform, to Walter M. Shaub, Jr., Director, Office

of Government Ethics 2 (Jan. 12, 2017) (stating that the

Oversight Committee “has jurisdiction in the House of

Representatives for reauthorizing the [O]ffice” of Government

Ethics); see also H.R. Rep. No. 95-642, pt. 1 (1977) (report of

the Committee on Post Office and Civil Service, predecessor

to the Oversight Committee, on H.R. 6954, predecessor to the

Ethics in Government Act of 1978). Furthermore, Rule X,

clause 3(i) directs the Oversight Committee to “review and

study on a continuing basis the operation of Government

57

activities at all levels, including the Executive Office of the

President.” And lest any confusion remain regarding the

Oversight Committee’s authority to oversee, Rule X,

clause 4(c)(2) states that the Committee “may at any time

conduct investigations of any matter without regard to [any

other] clause conferring jurisdiction over the matter to another

standing committee.”

Having placed “any matter” within the Oversight

Committee’s wide purview, the Rules nowhere disclose an

intent to carve out the President. It would be quite strange for

the Rules to permit the Oversight Committee to “review and

study,” House Rule X, cl. 3(i), financial disclosure laws in all

their applications save for one—their application to the

President. See 5 U.S.C. app. 4 §§ 101(a), (f)(1), 102 (requiring

the President to file financial reports). So, too, would it be

strange to direct the Committee to oversee “the operation of

Government activities at all levels,” House Rule X, cl. 3(i), if

the Rules really meant “at all levels except the President.” And

although we do not read the second half of clause 3(i), which

specifies that “Government . . . at all levels . . . includ[es] the

Executive Office of the President,” to refer to the President

himself, cf. Kissinger v. Reporters Committee for Freedom of

the Press, 445 U.S. 136, 156 (1980) (holding that in the

Freedom of Information Act, the term “‘Executive Office’ does

not include the Office of the President”), neither do we take the

“including” phrase to imply that “Government activities at all

levels” means something less than “all,” see Federal Land

Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100

(1941) (“[T]he term ‘including’ is not one of all-embracing

definition, but connotes simply an illustrative application of the

general principle.”). Indeed, the Trump Plaintiffs urge us to

draw no such negative inference. See Appellants’ Reply Br. 6

(“Plaintiffs do not claim that [adding the] new language

58

[‘Executive Office of the President’] narrowed the

Committee’s authority.”).

B.

Acknowledging that literally read, the Rules permit the

Committee to issue the challenged subpoena, see supra at 49,

the Trump Plaintiffs insist that a literal reading is not enough.

In their view, the Mazars subpoena alters the separation of

powers and raises serious constitutional questions, so nothing

less than an “unequivocal[] grant” by the House of “jurisdiction

to subpoena the President’s accountant for his private financial

records” could authorize the Committee to issue it. Appellants’

Reply Br. 2; see also Dissenting Op. at 52–58. In support, they

raise three related arguments.

First, the Trump Plaintiffs contend that because “a ‘clear

statement rule’ applies ‘to statutes that significantly alter the

balance between Congress and the President,’” Appellants’ Br.

16 (quoting Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir.

1991)), the House could have “authorized the Committee to

embark on [the instant] investigation” only through “an express

statement,” Appellants’ Reply Br. 3 (internal quotation marks

omitted); see also Dissenting Op. at 54–55. For this

proposition, they rely primarily on two decisions, both of

which held that the President is not an “agency” subject to

judicial review under the Administrative Procedure Act (APA).

In the first case, Armstrong v. Bush, our court held that “[w]hen

Congress decides purposefully to enact legislation restricting

or regulating presidential action, it must make its intent clear.”

924 F.2d at 289. “Although the ‘clear statement’ rule was

originally articulated to guide interpretation of statutes that

significantly alter the federal-state balance,” we explained,

“there are similar compelling reasons to apply the rule to

statutes that significantly alter the balance between Congress

and the President.” Id. And in the second case, Franklin v.

59

Massachusetts, the Supreme Court confirmed that “[o]ut of

respect for the separation of powers and the unique

constitutional position of the President,” the Court “would

require an express statement by Congress before assuming it

intended the President’s performance of his statutory duties to

be reviewed for abuse of discretion” under the APA. 505 U.S.

788, 800–01 (1992).

This case is nothing like Armstrong and Franklin for a

simple reason: the House Rules have no effect whatsoever on

“the balance between Congress and the President.” Armstrong,

924 F.2d at 289 (emphasis added). What Rules X and XI have

done is delegate from the House to the Oversight Committee

the authority to exercise Congress’s subpoena power without

first “obtain[ing] such authority . . . by a separate resolution”

of the full House. House Rules and Manual, 115th Cong., § 788

note (2017). The Trump Plaintiffs nowhere dispute that,

assuming a legitimate legislative purpose exists, the House

could have either issued the challenged subpoena by a vote of

the full chamber or, via express statement, authorized the

Committee to issue the subpoena on its behalf. See Oral Arg.

Tr. 5 (conceding that the House has the power to issue the

subpoena itself and arguing that the question is “whether [it]

gave [that authority] to [the] Committee”); id. at 6 (stating that

it is “a question of clarity and not a question of power”); id. at

130–31 (stating that, although it would be “better” for the

subpoena to come from “the full House,” the full House could

pass a rule that “says . . . the committee could do it”). The

Rules, which establish a mechanism for exercising the House’s

subpoena power, thus deal exclusively with the allocation of

authority within the legislative branch, leaving unaltered the

House’s subpoena power vis-à-vis the President. Because

Congress already possesses—in fact, has previously exercised,

see supra at 16–17—the authority to subpoena Presidents and

their information, nothing in the House Rules could in any way

60

“alter the balance between” the two political branches of

government. Armstrong, 924 F.2d at 289.

The Trump Plaintiffs’ second argument, containing many

ingredients of their first, is similarly unavailing. Observing that

“[t]he parties seriously dispute whether the subpoena has a

legitimate legislative purpose,” Appellants’ Reply Br. 3—and,

consequently, whether the subpoena exceeds constitutional

limits on Congress’s subpoena power—the Trump Plaintiffs

urge us to “resolve[] this case in a way that avoid[s] deciding”

constitutional questions “by quashing the subpoena as beyond

the Committee’s . . . jurisdiction,” Appellants’ Br. 23; see also

Department Br. 14; Dissenting Op. at 52–58. They call our

attention to two cases in particular: the Supreme Court’s

decision in United States v. Rumely and ours in Tobin v. United

States, 306 F.2d 270 (D.C. Cir. 1962). In Rumely, the Court

“g[a]ve” the authorizing resolution at issue “a more restricted

scope” because the government’s favored interpretation, which

would have permitted it “to inquire into all efforts of private

individuals to influence public opinion through books and

periodicals,” raised “doubts of constitutionality in view of the

prohibition of the First Amendment” and thus presented a

“[g]rave constitutional question[].” Rumely, 345 U.S. at 46–48.

And in the latter, we “constru[ed] [a] resolution[] of authority

narrowly . . . in order to obviate the necessity of passing on”

the “serious and difficult constitutional question[]” presented

by that case, Tobin, 306 F.2d at 274–75—namely, whether

Congress has “the power, under the compact clause of the

Constitution, to ‘alter, amend or repeal’ its consent to an

interstate compact,” id. at 272. Concerned that “the suspicion

of even potential impermanency would be damaging to the

very concept of interstate compacts,” id. at 273, we observed

that the argument against recognizing such an implied power

to alter or repeal “is not unpersuasive,” id. at 274.

61

In contrast to Rumely and Tobin, the constitutional

questions raised here are neither “[g]rave,” Rumely, 345 U.S.

at 48, nor “serious and difficult,” Tobin, 306 F.2d at 275. We

harbor no doubts that the subpoena to Mazars comports with

constitutional limits, as it seeks documents reasonably relevant

to a legitimate legislative inquiry into “a subject on which

legislation may be had.” Eastland, 421 U.S. at 508; see supra

Parts III.A–C. We therefore have no cause to invoke the canon

of constitutional avoidance. See Empresa Cubana Exportadora

de Alimentos y Productos Varios v. U.S. Department of

Treasury, 638 F.3d 794, 801 (D.C. Cir. 2011) (“A clear statute

and a weak constitutional claim are not a recipe for successful

invocation of the constitutional avoidance canon.”).

That is not to say the issues presented here are

unimportant—far from it. But the canon of constitutional

avoidance “is not a license for the judiciary to rewrite language

enacted by the legislature.” United States v. Albertini, 472 U.S.

675, 680 (1985). To adopt a restrictive interpretation of the

Rules when uncompelled by constitutional concerns, “while

purporting to be an exercise in judicial restraint,” would in fact

be to “trench upon the legislative powers vested in Congress by

[Article I] of the Constitution.” Id. We have no authority to

avoid questions—even important ones—simply because we

might prefer not to answer them. Cf. United States v. American

Telephone & Telegraph Co., 567 F.2d 121, 126 (D.C. Cir.

1977) (“The simple fact of a conflict between the legislative

and executive branches over a congressional subpoena does not

preclude judicial resolution.”).

Finally, the Trump Plaintiffs argue that even if no

separation-of-powers concerns demand application of the clear

statement rule, and even if no constitutional questions rise to

the level of serious, it would, given the “sensitive” nature of the

Committee’s request, Appellants’ Reply Br. 2 (internal

62

quotation marks omitted), still be “better,” Oral Arg. Tr. 130,

for the full House to grant the Committee “express authority to

subpoena the President for his personal financial records,”

Appellants’ Reply Br. 5. We, however, have no authority to

impose such a requirement on the House. The Constitution

gives “[e]ach House” of Congress authority to “determine the

Rules of its Proceedings,” U.S. Const. art. I, § 5, cl. 2, meaning

that courts lack the power to invalidate a duly authorized

congressional subpoena merely because it might have been

“better [if] . . . the full House” had specifically authorized or

issued it, Oral Arg. Tr. 130. See Eastland, 421 U.S. at 509

(“The wisdom of congressional approach or methodology is

not open to judicial veto.”). To be sure, “the courts will

intervene to protect constitutional rights from infringement by

Congress, including its committees and members.” Exxon

Corp., 589 F.2d at 590. But unless and until Congress adopts a

rule that offends the Constitution, the courts get no vote in how

each chamber chooses to run its internal affairs. See id.

(“[W]here constitutional rights are not violated, there is no

warrant for the judiciary to interfere with the internal

procedures of Congress.”).

The trouble with clear statement rules, then, is that they

both “involve[] an unwillingness to give full effect to

[Congress’s] unambiguous text” as it exists now, Owner-

Operator Independent Drivers Ass’n v. U.S. Department of

Transportation, 724 F.3d 230, 237 (D.C. Cir. 2013), and offer

a not-so-subtle encouragement to Congress to alter its rules in

the future. Without some constitutionally compelled reason, we

may do neither. As our court recently explained, “interpreting

a congressional rule ‘differently than would the Congress

itself,’ is tantamount to ‘making the Rules—a power that the

Rulemaking Clause reserves to each House alone.’” Barker v.

Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019) (quoting United

States v. Rostenkowski, 59 F.3d 1291, 1306–07 (D.C. Cir.

63

1995)). Accordingly, absent a substantial constitutional

question pertaining to the House’s legislative power, we have

no more authority to give a cramped interpretation to a House

Rule via a clear statement requirement or the constitutional

avoidance canon than we do to take out our red pens and edit

the Rules ourselves.

But the House may. And indeed it has. On July 24, several

weeks after oral argument in this case and several months after

the Oversight Committee issued the challenged subpoena to

Mazars, the full House adopted a resolution that in no uncertain

terms “ratifie[d] and affirm[ed]” the Oversight Committee’s

authority under House Rules X and XI to issue subpoenas

“concerning . . . the President in his personal or official

capacity [and] his immediate family, business entities, or

organizations.” H.R. Res. 507, 116th Cong. (2019). Resolution

507—a resolution “[a]ffirming the validity of subpoenas duly

issued and investigations undertaken by . . . committee[s] of

the House . . . pursuant to authorities delegated by . . . the

[House] Rules,” id.—purports neither to enlarge the

Committee’s jurisdiction nor to amend the House Rules.

Instead, the Resolution clarifies the authority that the

Committee had on the day it issued the subpoena. It is “plainly

incorrect,” the Resolution states, to assert that previously

issued subpoenas “seeking personal, financial, banking, and tax

information related to the President” “were not authorized by

the full House.” Id.

Because the Trump Plaintiffs concede, as they must, that

“[t]he Resolution does not expand the Committee’s

jurisdiction,” Appellants’ July 31 Letter 1; see also Dissenting

Op. at 55 n.18, we need not address their argument that “the

‘scope’ of a committee’s jurisdiction must ‘be ascertained as of

th[e] time’ of the request,” id. (alteration in original) (quoting

Rumely, 345 U.S. at 48). The Trump Plaintiffs may very well

64

be right that the authority of a congressional committee to issue

subpoenas “‘cannot be enlarged by subsequent action of

Congress.’” Id. (quoting Rumely, 345 U.S. at 48); but cf.

Dombrowski v. Burbank, 358 F.2d 821, 825 (D.C. Cir. 1966),

aff’d in part, rev’d in part on other grounds sub nom.

Dombrowski v. Eastland, 387 U.S. 82 (1967) (holding that for

purposes of establishing immunity from suit, a subcommittee

could ratify a subpoena previously issued “without prior

authorization from the [s]ubcommittee”). Resolution 507,

however, “enlarges” nothing. It merely confirms what the

Trump Plaintiffs admit—that the plain text of the House Rules

authorizes the subpoena, see supra at 46, and merely provides

what the Trump Plaintiffs request—that the House “‘spell[] out

[its] intention’” by “‘adopt[ing] a resolution which in express

terms authorizes’” the challenged subpoena. Appellants’ Reply

Br. 8–9 (quoting Tobin, 306 F.2d at 275–76). Because the

House has “clearly manifest[ed] its intention of putting such a

decisional burden upon us,” we have no choice but to “meet

and decide” the issues presented by this case. Tobin, 306 F.2d

at 276.

The Justice Department adds one final objection. Although

conceding that the Resolution “clearly authorizes the

Committee’s subpoena[,]” Department Br. 16, the Department

warns that because Resolution 507 also authorizes future

subpoenas, there is a “serious risk” that “[C]ongressional

committees may issue successive subpoenas in waves, making

far-reaching demands that harry the President and distract his

attention.” Department Br. 6. Time will tell whether the

Department’s prediction is accurate. At present, however, we

have no need to consider that hypothetical scenario because the

only subpoena currently before us is the one directed at Mazars.

And to be clear, neither the Trump Plaintiffs nor the

Department has argued that compliance with that subpoena

risks unconstitutionally burdening the President’s core duties.

65

Nor could they. It is Mazars, a third-party, that will retrieve

and organize the relevant information; the subpoena seeks non-

confidential records in which the President has asserted no

proprietary or evidentiary protections; and Mazars, not the

President, risks contempt through non-compliance. To be sure,

monitoring Mazars’s compliance with the subpoena might

require some presidential time and attention. But as the

Supreme Court made clear in Clinton v. Jones, a “burden [on]

the time and attention of the Chief Executive,” standing alone,

“is not sufficient to establish a violation of the Constitution.”

520 U.S. at 703.

V.

Though our journey has been long, we find ourselves at

the end of a familiar tale. A congressional committee, as

committees have done repeatedly over the past two centuries,

issued an investigative subpoena, and the target of that

subpoena, questioning the committee’s legislative purpose, has

asked a court to invalidate it. The fact that the subpoena in this

case seeks information that concerns the President of the

United States adds a twist, but not a surprising one: disputes

between Congress and the President are a recurring plot in our

national story. And that is precisely what the Framers intended.

As Justice Brandeis wrote, “[t]he doctrine of the separation of

powers was adopted . . . not to promote efficiency but to

preclude the exercise of arbitrary power.” Myers v. United

States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting). “The

purpose,” he explained, “was not to avoid friction, but, by

means of the inevitable friction incident to the distribution of

the governmental powers among three departments, to save the

people from autocracy.” Id.

Having considered the weighty interests at stake in this

case, we conclude that the subpoena issued by the Committee

66

to Mazars is valid and enforceable. We affirm the district

court’s judgment in favor of the Oversight Committee and

against the Trump Plaintiffs.

So ordered.

RAO, Circuit Judge, dissenting: The majority breaks new

ground when it determines Congress is investigating

allegations of illegal conduct against the President, yet

nonetheless upholds the subpoena as part of the legislative

power. The Committee on Oversight and Reform has

consistently maintained that it seeks to determine whether the

President broke the law, but it has not invoked Congress’s

impeachment power to support this subpoena. When Congress

seeks information about the President’s wrongdoing, it does

not matter whether the investigation also has a legislative

purpose. Investigations of impeachable offenses simply are

not, and never have been, within Congress’s legislative power.

Throughout our history, Congress, the President, and the courts

have insisted upon maintaining the separation between the

legislative and impeachment powers of the House and

recognized the gravity and accountability that follow

impeachment. Allowing the Committee to issue this subpoena

for legislative purposes would turn Congress into a roving

inquisition over a co-equal branch of government. I

respectfully dissent.

I.

We are asked to determine whether the Committee’s

subpoena is within the legislative power, a question that raises

serious separation of powers concerns about how a House

committee may investigate a sitting president. The

constitutional questions only hinted at by the majority become

clearer when the proper framework is applied. First, the

Committee’s subpoena and investigation explicitly state a

purpose of investigating illegal conduct of the President,

including specific violations of ethics laws and the

Constitution. Second, Congress’s power to investigate for

legislative purposes, although broad, is not unlimited and

cannot circumvent the distinct power to investigate for

purposes of impeachment. Allegations that an impeachable

official acted unlawfully must be pursued through

impeachment. Finally, the subpoena targets the President and

2

raises implications for the separation of powers that the

majority cannot brush aside simply because the subpoena is

addressed to the President’s accountants, Mazars USA, LLP.

These preliminary matters place this novel investigation in

context and frame the analysis of the substantial constitutional

questions presented in this case.

The Committee, the Trump plaintiffs, and the majority all

agree that the most relevant document for assessing the

Committee’s reasons for issuing the subpoena is Chairman

Elijah E. Cummings’s April 12 Memorandum. See

Memorandum from Chairman Elijah E. Cummings to

Members of the Committee on Oversight and Reform (Apr. 12,

2019) (“Cummings Memorandum”); Appellant Br. 32–33;

Maj. Op. 25; cf. Wilkinson v. United States, 365 U.S. 399, 410

(1961) (looking to the “Chairman’s statement at the opening of

the hearings” for signs of legislative purpose); Shelton v.

United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968). The

Cummings Memorandum states the Committee is investigating

“whether the President may have engaged in illegal conduct”

and notes that this information will “inform[] its review of

multiple laws and legislative proposals under our jurisdiction.”

Cummings Memorandum at 4. The Committee also makes an

“express avowal” to investigate alleged violations of ethics

laws and the Constitution by the President. See McGrain v.

Daugherty, 273 U.S. 135, 178 (1927) (noting that “[a]n express

avowal of the object” of an investigation would aid the courts

in reviewing the Senate’s purpose); see also infra Part III.A

(discussing Committee’s purposes in detail).

The Committee announces two distinct investigations: one

to explore allegations of illegal conduct by the President; and

another to review multiple laws and legislative proposals

within the Committee’s jurisdiction. The Committee justifies

both inquiries under the legislative power, and the majority

accepts this framework when it examines the legislative power

3

in isolation to determine whether this investigation falls within

its scope. Maj. Op. 20–54. Yet the Constitution vests the House

of Representatives with more than one investigative power.

Most frequently, the House investigates and issues subpoenas

ancillary to its legislative powers. That investigative power is

“co-extensive with the power to legislate.” Quinn v. United

States, 349 U.S. 155, 160 (1955); see also Watkins v. United

States, 354 U.S. 178, 187 (1957) (“The power of the Congress

to conduct investigations is inherent in the legislative process.

That power is broad.”).

The House, however, has a separate power to investigate

pursuant to impeachment, which has always been understood

as a limited judicial power to hold certain impeachable officials

accountable for wrongdoing. 1 See Kilbourn v. Thompson, 103

U.S. 168, 191 (1880) (“The Senate also exercises the judicial

power of trying impeachments, and the House of preferring

articles of impeachment.”). The text and structure of the

Constitution, its original meaning, and longstanding practice

demonstrate that Congress’s legislative and judicial powers are

distinct and exercised through separate processes, for different

purposes, and with entirely different protections for individuals

targeted for investigation. See infra Part II.

1

In addition to the legislative and impeachment powers, the House

and the Senate have other investigative powers, not relevant here, to

maintain the integrity of their proceedings and members against

bribery, nuisance, and violence. See Anderson v. Dunn, 19 U.S. (6

Wheat.) 204, 228–30 (1821); Barry v. United States ex rel.

Cunningham, 279 U.S. 597, 613 (1929) (the Senate has “certain

powers, which are not legislative, but judicial, in character. Among

these is the power to judge of the elections, returns, and

qualifications of its own members.” (citing U.S. CONST. art. I, § 5,

cl. 1)).

4

The Committee’s investigation into alleged illegal actions

of the President naturally raises the specter of impeachment.

Although the Trump plaintiffs maintain that “[t]he one thing

the parties agree on is that this case is not about impeachment,”

Appellants Br. 14, the impeachment power unmistakably sits

in the background of the legal arguments. 2 The Trump

plaintiffs and the Department of Justice have suggested that the

impeachment power might provide a different source of

authority for this subpoena, even though it was not invoked

here. See Appellants Br. 45 (noting with regard to

impeachment that “[w]hile Congress could presumably use

subpoenas to advance these non-legislative powers, the

Committee has not invoked them”); DOJ Br. 15 n.1 (“The

House’s impeachment power is an express authority whose

exercise does not require a connection to valid legislation. But

the Committee has asserted neither jurisdiction over, nor an

objective of pursuing, impeachment.”). Furthermore, one of the

primary legal arguments raised by the Trump plaintiffs is that

the Committee’s investigation is an impermissible form of “law

enforcement.” Appellants Br. 33–37. While law enforcement is

normally the province of the executive branch, the House has a

narrowly circumscribed power to serve as the “NATIONAL

INQUEST” when it acts pursuant to the impeachment power.

The Federalist No. 65, at 338 (Alexander Hamilton) (George

W. Carey & James McClellan eds., 2001). The Committee is

2

Notably, the district court concluded that the impeachment and

removal powers of the House and the Senate somehow bolster

Congress’s ability to investigate the President through the legislative

power. See Trump v. Comm. on Oversight & Reform, 380 F. Supp.

3d 76, 95 (D.D.C. 2019) (“It is simply not fathomable that a

Constitution that grants Congress the power to remove a President

for reasons including criminal behavior would deny Congress the

power to investigate him for unlawful conduct—past or present—

even without formally opening an impeachment inquiry.”).

5

“not here relying on impeachment power.” Oral Arg. at

1:34:19–22. Nevertheless, understanding the impeachment

power is essential to identifying the limits of the legislative

power when Congress seeks to investigate allegations of

specific unlawful actions by the President.

Constitutional powers do not stand in isolation, but rather

are part of a complex structure in which each power acquires

specific content and meaning in relation to the others. The

Supreme Court often locates the limits of one constitutional

power by identifying what is at the core of another. See, e.g.,

Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2096

(2015) (“Congress has substantial authority over passports . . . .

[But] [t]o allow Congress to control the President’s

communication in the context of a formal recognition

determination is to allow Congress to exercise that exclusive

power itself.”); Bowsher v. Synar, 478 U.S. 714, 722 (1986)

(“The Constitution does not contemplate an active role for

Congress in the supervision of officers charged with the

execution of the laws it enacts.”); Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“In the framework of

our Constitution, the President’s power to see that the laws are

faithfully executed refutes the idea that he is to be a

lawmaker.”); Myers v. United States, 272 U.S. 52, 164 (1926)

(“[A]rticle 2 excludes the exercise of legislative power by

Congress to provide for appointments and removals, except

only as granted therein to Congress in the matter of inferior

offices.”); Kilbourn, 103 U.S. at 192 (the House “not only

exceeded the limit of its own authority, but assumed a power

which could only be properly exercised by another branch of

the government, because it was in its nature clearly judicial”).

This method helps illuminate the scope of the legislative power

to investigate. Comparing Congress’s legislative power with its

wholly distinct judicial power of impeachment demonstrates

the essential difference between these powers when Congress

seeks to investigate the wrongdoing of the President.

6

As explained below, allegations of illegal conduct against

the President cannot be investigated by Congress except

through impeachment. The House may impeach for “Treason,

Bribery, or other high Crimes and Misdemeanors,” U.S.

CONST. art. II, § 4, and has substantial discretion to define and

pursue charges of impeachment. See The Federalist No. 65, at

338 (impeachable offenses “are of a nature which may with

peculiar propriety be denominated POLITICAL, as they relate

chiefly to injuries done immediately to the society itself”).

While it is unnecessary here to determine the scope of

impeachable offenses, Congress has frequently treated

violations of statutes or the Constitution as meeting this

threshold. 3 Impeachment provides the exclusive method for

Congress to investigate accusations of illegal conduct by

impeachable officials, particularly with the aid of compulsory

process. 4 Thus, the key determination is whether this

3

This discussion of the impeachment power proceeds only in relation

to understanding the scope of the legislative power. As the

Committee has not raised the impeachment power as a basis for this

subpoena, questions regarding whether such a subpoena could issue

under the impeachment power are outside the scope of this opinion,

as are other questions regarding the justiciability of the impeachment

power or the specific scope of impeachable offenses. Recognizing

the political nature of impeachable offenses, I refer to them

throughout the opinion by various terms to reflect that such offenses

may include wrongdoing or illegal conduct deemed by the House to

be a high crime or misdemeanor.

4

Voluntary compliance with congressional investigations is

commonplace. Different concerns arise, however, when one branch

invokes power over the other through compulsory process. See, e.g.,

Watkins, 354 U.S. at 215 (“It is only those investigations that are

conducted by use of compulsory process that give rise to a need to

protect the rights of individuals against illegal encroachment. That

protection can be readily achieved through procedures which prevent

7

investigation targets allegations Congress might treat as “high

Crimes” or “Misdemeanors.” To make this determination

requires no search for hidden motives, but simply crediting the

Committee’s consistently stated purpose to investigate “illegal

conduct” of the President. Cummings Memorandum at 4; cf.

Eastland v. United States Servicemen’s Fund, 421 U.S. 491,

508 (1975) (“[I]n determining the legitimacy of a congressional

act we do not look to the motives alleged to have prompted

it.”).

The Committee’s stated interest in remedial legislation

may support any number of investigations, including into the

conduct of agencies and how officials administer the laws. Yet

a legislative purpose cannot whitewash this subpoena, which—

by the Committee’s own description—targets allegations of

illegal conduct by the President. The most important question

is not whether Congress has put forth some legitimate

legislative purpose, but rather whether Congress is

investigating suspicions of criminality or allegations that the

President violated a law. Such investigations may be pursued

exclusively through impeachment. The House may not use the

legislative power to circumvent the protections and

accountability that accompany the impeachment power.

The majority recognizes this subpoena concerns the

Committee’s “interest in determining whether and how illegal

conduct has occurred,” Maj. Op. 30, but nonetheless concludes

that it is a valid exercise of the legislative power. This marks a

sharp break with the few judicial precedents in this area. The

Supreme Court has consistently maintained that Congress

cannot undertake a legislative investigation of an impeachable

official if the “gravamen” of the investigation rests on

“suspicions of criminality.” Kilbourn, 103 U.S. at 193, 195. In

the separation of power from responsibility and which provide the

constitutional requisites of fairness for witnesses.”).

8

Senate Select Committee on Presidential Campaign Activities

v. Nixon, our court refused to enforce a legislative subpoena to

President Richard Nixon by the Senate Select Committee

tasked with investigating the Watergate break-in. 498 F.2d 725

(D.C. Cir. 1974) (en banc). The tapes sought by the subpoena

were too “tangential” to the Committee’s asserted legislative

purposes, especially because the House had commenced

impeachment proceedings to ascertain the President’s role in

these events. Id. at 733.

The majority’s holding also breaks with the longstanding

historical practice of Congress and the Executive. Without

analyzing the Constitution or responding to the consistent

historical understanding presented below, the majority simply

asserts that Congress must be able “to make the

quintessentially legislative judgment that some concerns about

potential misconduct or illegality are better addressed through

. . . legislation than impeachment.” Maj. Op. 49. The majority’s

novel holding, however, fails to explain how specific

accusations of wrongdoing by impeachable officials can be

pursued through legislation. The Constitution, historical

practice, and our cases prohibit rolling this investigation of

illegal conduct of the President into a legislative investigation.

Allowing Congress to use the legislative power to circumvent

the impeachment process disrupts the separation of powers. By

simply invoking a need for remedial legislation, Congress may

now expand its control over the other branches and avoid the

accountability and responsibility inherent in the impeachment

power.

Finally, the inter-branch conflict in this case does not

dissipate simply because the subpoena for the President’s

papers is strategically directed to Mazars rather than the

President. In an attempt to sidestep thorny separation of powers

questions, the majority reduces the conflict to a merely

personal one involving the President’s accountants: “[T]o

9

resolve this case, we need not decide whether the Constitution

permits Congress, in the conduct of a legislative—that is, non-

impeachment—investigation, to issue subpoenas to a sitting

President.” Id. at 20. By the majority’s account, the subpoena

does not transgress any constitutionally prescribed boundaries

between co-equal branches in part because “quite simply, the

Oversight Committee has not subpoenaed President Trump.”

Id. The majority thus concludes that concerns about the relative

powers of the President and Congress do not come into play.

Yet this claim belies both precedent and common sense.

Indeed, by the end of its opinion, the majority abandons even

this reservation and simply asserts, “Congress already

possesses . . . the authority to subpoena Presidents and their

information.” Id. at 59.

The official actions of the Chief Executive are essentially

bound up in the Mazars subpoena. A subpoena’s force extends

beyond its recipient, which the majority has implicitly

acknowledged by declining to question President Trump’s

standing to challenge the subpoena’s validity. As we have

previously explained: “[T]he fortuity that documents sought by

a congressional subpoena are not in the hands of a party

claiming injury from the subpoena should not immunize that

subpoena from challenge by that party . . . . The fact that the

Executive is not in a position to assert its claim of constitutional

right by refusing to comply with a subpoena does not bar the

challenge.” United States v. AT&T, 567 F.2d 121, 129 (D.C.

Cir. 1977) (citing Eastland, 421 U.S. at 513 (Marshall, J.,

concurring)). Moreover, we have recognized that

congressional subpoenas may create a “portentous clash

between the executive and legislative branches”

notwithstanding the fact that the subpoena was issued against a

private party. United States v. AT&T, 551 F.2d 384, 385 (D.C.

Cir. 1976); accord Eastland, 421 U.S. at 498, 501 n.14

(reviewing challenge to third-party subpoena because

10

otherwise “compliance by the third person could frustrate any

judicial inquiry”).

The Committee’s subpoena is directed to Mazars but

targets the President’s papers. The form of the subpoena cannot

mask the inter-branch conflict between Congress and the

President. Cf. Judicial Watch, Inc. v. U.S. Secret Serv., 726

F.3d 208, 225–26 (D.C. Cir. 2013) (refusing to allow “end

runs” around “separation-of-powers concerns” by subpoenaing

the Secret Service instead of the President for presidential

calendars). Despite the majority’s skepticism, President Trump

necessarily “carries the mantle of the Office of the President in

this case.” Maj. Op. 24; cf. In re Lindsey, 158 F.3d 1263, 1286

(D.C. Cir. 1998) (Tatel, J., concurring in part and dissenting in

part) (“Because the Presidency is tied so tightly to the persona

of its occupant . . . the line between official and personal can

be both elusive and difficult to discern.”). 5

The basic contours of the problem are straightforward—

the Committee’s subpoena seeks information regarding alleged

unlawful actions of the President. The direct conflict between

Congress and the President cannot be evaded by treating this as

an ordinary legislative inquiry involving a subpoena to an

accounting firm. In pursuit of remedial legislation, the

Committee may investigate broadly, but this subpoena goes too

5

As the Department of Justice points out, it is also possible that

judicial resolution would not be necessary if the Committee had

issued the subpoena to the President directly. DOJ Br. 7–8. Instead,

the President and the House would negotiate in the “hurly-burly, the

give and take of the political process between the legislative and the

executive,” likely raising a mix of legal and political arguments and

appealing to the public for support. Executive Privilege - Secrecy in

Government: Hearings Before the Subcomm. on Intergovernmental

Relations of the S. Comm. on Government Operations, 94th Cong.

87 (1975) (statement of Antonin Scalia, Assistant Att’y Gen., Office

of Legal Counsel).

11

far because the legislative power cannot target whether the

President violated the law.

II.

The question of whether the House may issue this

subpoena for a legislative purpose presents a serious conflict

between Congress and the President. While the question has

never been squarely addressed by the Supreme Court, Congress

and the executive branch have regularly confronted similar

problems. Accordingly, I start at the beginning. The text and

structure of the Constitution are best read to provide for

impeachment as the exclusive mechanism for reaching the

wrongdoing of the President and other impeachable officials.

The original understanding of Congress’s separate legislative

and impeachment powers, as well as consistent historical

practice since the Founding, confirms that congressional

investigations of the alleged unlawful actions of the President

cannot be pursued through the legislative power. Cf. NLRB v.

Noel Canning, 573 U.S. 513, 524–26 (2014) (“‘[L]ong settled

and established practice is a consideration of great weight in a

proper interpretation of constitutional provisions’ regulating

the relationship between Congress and the President.” (quoting

The Pocket Veto Case, 279 U.S. 655, 689 (1929))).

Targeting an individual officer for suspicions of

criminality requires proceeding through the impeachment

power, with its attendant procedural protections and

accountability. The majority claims to recount a “familiar tale”

of congressional subpoenas and investigations, Maj. Op. 65;

however, its story covers only legislative investigations that

involve no allegations of wrongdoing against an impeachable

official. The majority’s cursory and selective use of history

glosses over important distinctions carefully maintained by all

three branches between Congress’s legislative and judicial

powers of investigation.

12

A.

The text and structure of the Constitution set out with

precision the process for Congress to investigate the unlawful

actions of the President—namely, impeachment by the House

followed by a trial in the Senate. The distinctions between the

legislative and judicial powers of Congress are firmly rooted in

the Constitution and reflect the fundamental differences

between these powers in our system of government. The

original meaning confirms that Congress acts in an exceptional

judicial capacity when exercising impeachment powers.

Investigating unlawful actions by impeachable officials is

outside the legislative power because impeachment provides

the exclusive mechanism for Congress to investigate such

conduct.

Congress is vested with limited and enumerated legislative

powers, and while the power to investigate is not in the text of

the Constitution, it has long been recognized that Congress may

investigate and issue subpoenas necessary and proper to the

exercise of the legislative power. U.S. CONST. art. I, § 8, cl. 18.

As the Court has explained, “the power of inquiry—with

process to enforce it—is an essential and appropriate auxiliary

to the legislative function.” McGrain, 273 U.S. at 174. Such

investigations are part of the legislative power and may extend

no farther than that power permits. See Quinn, 349 U.S. at 161.

In the United States, however, the legislative power does

not include the exercise of judicial power to determine the guilt

or innocence of individuals. 6 The Constitution prohibits bills

6

By contrast, at the time of the Founding, the British House of

Commons possessed broad powers to “impeach” not only officials

but individual citizens, who could be tried by the House of Lords in

a judicial capacity for any criminal offense. 4 William Blackstone,

Commentaries *259–61. As such, Parliament could not only remove

13

of attainder. U.S. CONST. art. I, § 9, cl. 3; art. I, § 10, cl. 1; see

also United States v. Brown, 381 U.S. 437, 442 (1965) (“[T]he

Bill of Attainder Clause was intended not as a narrow, technical

. . . prohibition, but rather as an implementation of the

separation of powers, a general safeguard against legislative

exercise of the judicial function, or more simply—trial by

legislature.”). The Framers understood the importance of

prohibiting Congress from turning its substantial powers

against an individual and possessed a “sense of a sharp

necessity to separate the legislative from the judicial power.”

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995); see

also Calder v. Bull, 3 U.S. (3 Dall.) 386, 389 (1798) (reviewing

parliamentary abuses of bills of attainder and noting “the

Federal and State Legislatures, were prohibited from passing

any bill of attainder; or any ex post facto law” to prevent “acts

of violence and injustice” against individuals). As

Montesquieu warned, if the judicial powers were “joined with

the legislative, the life and liberty of the subject would be

exposed to arbitrary control; for the judge would then be the

legislator.” Montesquieu, The Spirit of the Laws 157 (A.

Cohler et al. eds., 1989).

Vested with the power to make the laws, Congress cannot

also execute and adjudicate them. See Fletcher v. Peck, 10 U.S.

(6 Cranch) 87, 136 (1810) (“It is the peculiar province of the

legislature to prescribe general rules for the government of

society; the application of those rules to individuals in society

an official but also assess a broad range of punishments at the

discretion of “the wisdom of the peers.” Id. at *121–22. Against the

abuses of this practice, the Founders limited the scope of

impeachable offenses and punishments for conviction. See Peter

Hoffer & N.E.H. Hull, Impeachment in America, 1635-1805, at 96–

98 (1984); see also Akhil R. Amar, America’s Constitution: A

Biography 199–203 (2005) (describing how the “system of federal

impeachment broke decisively with English impeachment practice”).

14

would seem to be the duty of other departments.”). Exercising

the legislative power, Congress may enact general, prospective

rules for the whole of society. Yet Congress cannot prosecute

and decide specific cases against individuals. Such powers

properly belong to the executive branch and the independent

judiciary—a division essential to maintaining fundamental

aspects of our separation of powers and protecting the rights of

individuals accused of illegal actions.

As an exception to this separation, the Constitution confers

upon the House and Senate limited judicial powers over

impeachable officials. The Constitution vests the House of

Representatives with the “sole Power of Impeachment,” U.S.

CONST. art. I, § 2, cl. 5, and the Senate with the “sole Power to

try all Impeachments,” U.S. CONST. art. I, § 3, cl. 6. The

Constitution creates a two-tier system, dividing limited judicial

power between the House and the Senate to target individual

cases of wrongdoing by impeachable officials. These judicial

powers were understood as exceptions to the legislative power

vested in Congress. See Kilbourn, 103 U.S. at 190–91 (noting

impeachment and removal as exceptions to the separation of

powers because they place judicial power in Congress);

Hayburn’s Case, 2 U.S. (2 Dall.) 408, 410 (1792) (“[N]o

judicial power of any kind appears to be vested [in the

legislature], but the important one relative to impeachments.”).

In the context of an impeachment inquiry, the House

serves as a kind of grand jury, investigating public officials for

misconduct. As Hamilton noted, the “delicacy and magnitude

of [this] trust” transforms the House into a “NATIONAL

INQUEST.” The Federalist No. 65, at 338. The Senate acts as

a “court for the trial of impeachments,” exercising the “awful

discretion which a court of impeachments must necessarily

have, to doom to honour or to infamy the most confidential and

the most distinguished characters of the community.” Id. at

339. Trial by the Senate in cases of impeachment is part of the

15

“judicial character of the Senate.” Id. at 337; see also

Jefferson’s Manual of Parliamentary Practice § 619 (“The trial,

though it varies in external ceremony, yet differs not in

essentials from criminal prosecutions before inferior courts.”).

The Constitution requires senators trying an impeachment to

be on “Oath or Affirmation” and for the Chief Justice to preside

when the President is tried; conviction requires “two thirds of

the Members present.” U.S. CONST. art. I, § 3, cl. 6. The

Constitution refers to “Judgment in Cases of Impeachment.”

U.S. CONST. art. I, § 3, cl. 7.

As an exercise of judicial power, the impeachment process

targets the individual. The Constitution’s text confirms this

understanding: “no Person shall be convicted,” and “the Party

convicted” shall be liable according to the law. U.S. CONST. art.

I, § 3, cls. 6–7. “The President, Vice President, and all civil

Officers of the United States” are subject to impeachment. U.S.

CONST. art. II, § 4. Article I makes clear that in this role, the

Senate acts as a court trying impeachable offenses and renders

judgment that could result in removal from office and

disqualification from holding any “Office of honor, Trust, or

Profit under the United States.” U.S. CONST. art. I, § 3, cl. 6.

The impeachable offenses enumerated in the Constitution

specifically target individual wrongdoing, namely “Treason,

Bribery, or other high Crimes and Misdemeanors.” U.S.

CONST. art. II, § 4; see also The Federalist No. 65, at 339

(observing the Senate was the only body with “confidence

enough in its own situation, to preserve, unawed and

uninfluenced, the necessary impartiality between an individual

accused, and the representatives of the people, his accusers”).

The Founders treated impeachable offenses as wholly

distinct from the subjects of investigation for legislative

purposes, such as maladministration. The exact phrasing of an

impeachable offense was debated at the Philadelphia

Convention. After the Convention settled on “Treason, or

16

bribery,” George Mason moved to include “maladministration”

as an additional ground for impeachment. 2 Records of the

Federal Convention 550 (Max Farrand ed., 1937). James

Madison objected, arguing that “[s]o vague a term will be

equivalent to a tenure during pleasure of the Senate,” and

Gouverneur Morris argued that “[a]n election of every four

years will prevent maladministration.” Id. Conceding the point,

Mason withdrew “maladministration” and submitted the text

eventually enacted: “other high crimes & misdemeanors.” Id.

Thus, impeachment addresses a public official’s wrongdoing—

treason, bribery, and high crimes or misdemeanors—while

problems of general maladministration are left to the political

process.

In addition, impeachment by the House and trial by the

Senate were understood to include constitutional rights

normally afforded to the accused in a criminal trial. After

examining English, colonial, and early constitutional practice,

Justice Story concluded that the common law rights of criminal

defendants apply in the exercise of the impeachment power.

See 3 Joseph Story, Commentaries on the Constitution of the

United States § 796 (1833) (“[I]n trials by impeachment the law

differs not in essentials from criminal prosecutions before

inferior courts. The same rules of evidence, the same legal

notions of crimes and punishments prevail.”); see also 3 Asher

C. Hinds, Hinds’ Precedents of the House of Representatives

§ 2486 (“Hinds”) (“In the prosecution of an impeachment, such

rules must be observed as are essential to justice; and, if not

exactly the same as those which are practiced in o

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