# Donald Trump v. Mazars USA, LLP

> Court of Appeals for the D.C. Circuit · October 11, 2019 · 940 F.3d 710

URL: https://www.frixlaw.com/law-library/cases/4448014

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** October 11, 2019
- **Citations:** 940 F.3d 710
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4448014

## How later opinions describe it (automated extraction)

- explaining that “Presidents, too, have often been the subjects of Congress’s legislative interventions,” but, in contrast to disputes between House committees and 56 private-citizen recipients of legislative subpoenas, “fewer of these have required judicial intervention”
- noting that, in response to a legislative request for information during the investigation of “the Iran-Contra Affair, including the role of the President,” President Ronald Reagan “declined to assert executive privilege, going so far as to furnish relevant excerpts of his per…
- explaining that the “House is under no obligation to enact legislation after every investigation”
- noting that the Committee’s subpoena was issued to a “non-governmental custodian[] of the President’s financial information” (emphasis added)

## Opinion text

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
2
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.
3
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
4
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
5
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
6
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
7
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
8
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
9
(“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
10
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”).
11
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
12
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.
13
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
14
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
15
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
16
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
17
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 person

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4448014. Public record. Not legal advice.