Amicus Curiae Brief — Donald J. Trump, et al., Petitioners v. Mazars USA, LLP, et al.

NOS. 19-715, 19-760

In the

Supreme Court of the United States

DONALD J. TRUMP, et al.,

Petitioners,

V.

MAZARS USA, LLP, et al.,

Respondents.

DONALD J. TRUMP, et al.,

Petitioners,

V.

DEUTSCHE BANK AG, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURTS OF APPEALS FOR THE DISTRICT OF COLUMBIA

AND SECOND CIRCUITS

Brief of Amici Curiae American Civil Liberties

Union and ACLU of the District of Columbia in

Support of Respondents

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

(202) 675-2330

dcole@aclu.org

DONALD B. VERRILLI, JR.

Counsel of Record

BRENDAN B. GANTS

MUNGER, TOLLES & OLSON LLP

1155 F Street, NW, 7th Floor

Washington, D.C. 20004

(202) 220-1100

Donald.Verrilli@mto.com

(Additional Counsel on Inside Cover)

JENNESA CALVO-FRIEDMAN

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

jcalvo-friedman@aclu.org

ARTHUR B. SPITZER

SCOTT MICHELMAN

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF THE

DISTRICT OF COLUMBIA

915 15th Street, NW

Washington, D.C. 20005

(202) 457-0800

aspitzer@acludc.org

smichelman@acludc.org

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 4

I.

II.

Congress Has Broad Authority To

Conduct Investigations, Including of the

President. .......................................................... 4

A.

Congress’s Investigative

Authority is Broad and WellEstablished. ............................................ 4

B.

Congress’s Investigative

Authority Has Long Been

Understood To Apply to the

Executive Branch, Including the

President. ................................................ 7

Congress’s Authority to Investigate is

Subject to Appropriate Constraints That

Adequately Protect the Legitimate

Interests of the President and Other

Persons. ........................................................... 11

A.

Congressional Investigations are

Subject to Scope and Relevancy

Limits, and May Be Required to

Yield to Legitimate Privileges and

Protected Interests. .............................. 12

B.

The President and Other

Executive Branch Officials Are

Appropriately Protected by These

Doctrines. .............................................. 14

ii

TABLE OF CONTENTS

(Continued)

Page

III.

IV.

The President’s Argument for Sweeping

Immunity Lacks Any Justification and

Would Endanger the Separation of

Powers. ............................................................ 16

A.

Under This Court’s

Jurisprudence, the President’s

Assertion of Immunity Requires a

Justification He Has Not

Provided. ............................................... 17

B.

The President’s Asserted

Immunity Would Directly

Undermine the Separation of

Powers. .................................................. 19

The Subpoenas at Issue in This Case

Are Well Within the Investigative

Authority of the House of

Representatives. .............................................. 25

CONCLUSION .......................................................... 32

iii

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Anderson v. Dunn,

19 U.S. 204 (1821) ................................................ 14

Barenblatt v. United States,

360 U.S. 109 (1959) .......................................passim

Cheney v. U.S. Dist. Court for D.C.,

542 U.S. 367 (2004) .............................................. 15

Clinton v. Jones,

520 U.S. 681 (1997) .......................................passim

Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491 (1975) .......................................passim

Forrester v. White,

484 U.S. 219 (1988) .............................................. 17

Gravel v. United States,

408 U.S. 606 (1972) .............................................. 18

Grosjean v. American Press Company,

297 U.S. 233 (1936) .............................................. 21

Hutcheson v. United States,

369 U.S. 599 (1962) ........................................ 28, 29

Hutchinson v. Proxmire,

443 U.S. 111 (1979) .............................................. 18

iv

TABLE OF AUTHORITIES

(Continued)

Page

Kilbourn v. Thompson,

103 U.S. 168 (1880) .................................. 12, 22, 29

In re Lindsey,

158 F.3d 1263 (D.C. Cir.),

cert. denied, 525 U.S. 996 (1998) ......................... 30

Loving v. United States,

517 U.S. 748 (1996) .............................................. 19

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) .............................................. 27

McGrain v. Daugherty,

273 U.S. 135 (1927) .......................................passim

Mistretta v. United States,

488 U.S. 361 (1989) ......................................... 19-20

Nashville, Chattanooga & St. Louis

Railway v. Wallace,

288 U.S. 249 (1933) .............................................. 28

New York Times v. Sullivan,

376 U.S. 254 (1964) .............................................. 21

Nixon v. Administrator of General

Services,

433 U.S. 425 (1977) .................................. 10, 21, 26

Nixon v. Fitzgerald,

457 U.S. 731 (1982) .......................................passim

v

TABLE OF AUTHORITIES

(Continued)

Page

NLRB v. Noel Canning,

573 U.S. 513 (2014) .............................................. 27

Pennekamp v. Florida,

328 U.S. 331 (1946) .............................................. 23

Quinn v. United States,

349 U.S. 155 (1955) ................................ 4, 5, 12, 13

In re Sealed Case,

148 F.3d 1073 (D.C. Cir.),

cert. denied, 119 S. Ct. 461 (1998) ....................... 30

Senate Permanent Subcomm. v. Ferrer,

199 F. Supp. 3d 125 (D.D.C. 2016),

vacated as moot, 856 F.3d 1080 (D.C.

Cir. 2017) ............................................................. 6-7

In re the Application of U.S. Senate

Permanent Subcomm. On

Investigations,

655 F.2d 1232 (D.C. Cir. 1981) .............................. 6

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .......................................... 29

United States v. Ballin,

144 U.S. 1 (1892) .................................................. 27

United States v. Burr,

25 F. Cas. 30 (C.C.D. Va. 1807) ............................. 8

vi

TABLE OF AUTHORITIES

(Continued)

Page

United States v. McSurely,

473 F.2d 1178 (D.C. Cir. 1972) ............................ 13

United States v. Nixon,

418 U.S. 683 (1974) .......................................passim

United States v. Rumely,

345 U.S. 41 (1953) .......................................... 13, 23

Watkins v. United States,

354 U.S. 178 (1957) .......................................passim

Wilkinson v. United States,

365 U.S. 399 (1961) .............................................. 27

LEGISLATIVE MATERIALS

3 Annals of Cong. (1792).............................................. 8

5 Annals of Cong. (1796).............................................. 8

H.R. Rep. No. 22-502 (1832) ........................................ 9

OTHER AUTHORITIES

Arthur M. Schlesinger, Jr., Introduction

to Congress Investigates: 1792-1974,

at xi, xii (Arthur M. Schlesinger, Jr.

& Roger Bruns eds., 1975) ................................... 24

Bernard Schwartz, Executive Privilege

and Congressional Investigatory

Power, 47 Cal. L. Rev. 3 (1959) ............................ 24

vii

TABLE OF AUTHORITIES

(Continued)

Page

Brett M. Kavanaugh, First Let Congress

Do Its Job, Wash. Post, Feb. 26, 1999 ................. 25

Brett M. Kavanaugh, The President and

the Independent Counsel, 86 Geo. L.J.

2133 (1998) ............................................... 23, 24, 25

C.S. Potts, Power of Legislative Bodies to

Punish for Contempt, 74 U. Pa. L.

Rev. 691 (1926) .................................................... 5-6

Congress Steps Up Enron Probes,

CNN.com (Jan. 12, 2002, 9:17 AM) ....................... 7

The Federalist No. 47 (James Madison) ................... 19

James M. Landis, Constitutional

Limitations on the Congressional

Power of Investigation, 40 Harv. L.

Rev. 153 (1926) ....................................................... 6

James Madison, Report on the Virginia

Resolutions (1799-1800) .................................. 21-22

2 Jonathan Elliot, Debates on the

Federal Constitution (2d ed. 1863) ...................... 20

3 Jonathan Elliot, The Debates in the

Several State Conventions on the

Adoption of the Federal Constitution

(1881) .................................................................... 22

viii

TABLE OF AUTHORITIES

(Continued)

Page

Letter from Thomas Jefferson to Charles

Yancey (Jan. 6, 1816), in 11 Works of

Thomas Jefferson (Ford ed. 1905)........................ 22

Martin S. Flaherty, The Most Dangerous

Branch, 105 Yale L.J. 1725 (1996)....................... 20

Michael A. Fitts, The Legalization of the

Presidency: A Twenty-Five Year

Watergate Retrospective, 43 St. Louis

Univ. Law J. 725 (1999) ......................................... 9

Neal Devins, Congressional-Executive

Information Access Disputes: A

Modest Proposal—Do Nothing, 48

Admin. L. Rev. 109 (1996).................................... 14

Sewell Chan & Gretchen Morgenson,

Financial Panel Issues a Subpoena to

Goldman Sachs, N.Y. Times, June 7,

2010 ......................................................................... 7

William P. Marshall, The Limits on

Congress’s Authority To Investigate

the President, 2004 U. Ill. L. Rev. 781

(2004) ................................................................ 8, 24

Woodrow Wilson, Congressional

Government: A Study in American

Politics (1885) ....................................................... 22

1

INTEREST OF AMICI CURIAE

The American Civil Liberties Union (“ACLU”) is a

nationwide, nonprofit, nonpartisan organization with

approximately two million members and supporters

dedicated to the principles of liberty and equality

embodied in the Constitution of the United States.

Since its founding in 1920, the ACLU has sought to

protect individual liberties and to ensure that

governmental power is limited as required by the

Constitution.

The ACLU recognizes that the

separation of powers established by the Constitution,

and the ability of different branches of government

effectively to check and balance one another, helps to

secure Americans’ liberties.

The ACLU of the

District of Columbia is the ACLU’s affiliate in

Washington, DC.

The ACLU has participated directly or as amicus

curiae in many of this Court’s cases concerning

immunity of public officials, including the President.

In particular, the ACLU, participating as amicus, has

urged the Court to reject claims that the President is

entitled to immunity from civil lawsuits arising out of

his unofficial conduct, and from compulsory process

for evidence related to a criminal trial. See, e.g.,

Clinton v. Jones, 520 U.S. 681 (1997); United States v.

Nixon, 418 U.S. 683 (1974). 1

Pursuant to Supreme Court Rule 37.6, counsel for amici certify

that no counsel for a party authored this brief in whole or in

part, and no party or counsel for a party, or any other person

other than amici or its counsel, made a monetary contribution

intended to fund the preparation or submission of this brief. All

parties participating in this litigation have granted blanket

consent for the filing of amicus briefs.

1

2

SUMMARY OF ARGUMENT

This Court has long recognized that Congress’s

authority to conduct investigations is deeply rooted in

the American constitutional tradition. An unbroken

history of legislative practice that predates the

Republic itself leaves no doubt that Congress may

initiate investigations and use compulsory process to

inform its legislative agenda and appropriations

decisions and to exercise oversight over the

Executive, so long as it stays within certain wellestablished constraints. That authority includes the

right to demand documents from or regarding the

President and other members of the Executive

Branch.

The President attempts to cast doubt on this

authority, based in part on the paucity of case law

resolving conflicts between Congress and the

President over subpoenas. 2 But Presidents since

George Washington have recognized Congress’s

investigative authority and have generally complied

with its investigative demands, while reserving the

right to withhold certain privileged information. The

President’s claim that his status entitles him to a

sweeping, virtually unyielding immunity from

congressional process has no support in precedent or

history. In all events, he has articulated no specific

need for such immunity over and above existing

safeguards against congressional overreach, which

already protect the legitimate interests of the

The lead petitioner in this case is Donald J. Trump in his

personal capacity, not in his official capacity.

This brief

nevertheless will refer to him as the President, following this

Court’s practice when William Jefferson Clinton petitioned in

his personal capacity, see Clinton v. Jones, 520 U.S. 681 (1997).

2

3

Presidency.

Nothing about this case—involving

subpoenas to certain third parties for records

concerning the President’s unofficial conduct and

relating to numerous subjects of potential legislative

reform—comes close to demonstrating a need for the

extreme limits on congressional investigative

authority that President Trump demands.

The President invokes separation of powers, but

those considerations only underscore the propriety of

the subpoenas at issue here. Robust congressional

oversight of the President is crucial to maintaining

the checks and balances that protect the separation of

powers and, by extension, Americans’ liberties.

Under separation-of-power principles, it is the

President’s unprecedented claim to special protection

from congressional authority that requires a specific

justification,

not

Congress’s

long-established

authority to investigate. The President has offered

no specific justification—let alone any persuasive

one—to grant the President special protection, and

erode congressional oversight, in the case before this

Court.

The subpoenas at issue in this case are well within

any reasonable definition of Congress’s investigative

authority. They seek evidence that would plainly

inform legislative reform, appropriations decisions,

and, more broadly, democratic accountability. The

President’s claim that the documents could not

possibly inform any permissible legislation is both

extravagant and unsupported. There is no basis for

allowing the President to block these subpoenas. The

President, just like the rest of us, is bound by law,

and the law requires Respondents in this case to

comply with congressional subpoenas.

4

ARGUMENT

I.

Congress Has Broad Authority To

Conduct Investigations, Including of the

President.

This Court has repeatedly recognized that Congress

has broad investigative authority. That authority is

deeply rooted in American history and has always

been understood to reach the Executive Branch,

including the President. The unduly restrictive view

of Congress’s investigative authority advanced in

President Trump’s brief, along with the amicus brief

filed by the Department of Justice, bears no

resemblance to the practice of congressional

investigation as it has existed for more than two

centuries.

A.

Congress’s Investigative Authority

is Broad and Well-Established.

Congress’s authority to conduct investigations,

including the power to issue subpoenas, is

indispensable to the exercise of its legislative power

under the Constitution. See, e.g., Eastland v. U.S.

Servicemen’s Fund, 421 U.S. 491, 505 (1975)

(investigative authority “is an integral part of the

legislative process,” and “[t]he issuance of a subpoena

pursuant to an authorized investigation is similarly

an indispensable ingredient of lawmaking” without

which the ability to investigate “would be

meaningless”). “Without the power to investigate . . .

Congress could be seriously handicapped in its efforts

to exercise its constitutional function wisely and

effectively.” Quinn v. United States, 349 U.S. 155,

160-61 (1955); see also Watkins v. United States, 354

U.S. 178, 197 (1957) (“[A]n investigation is part of

5

lawmaking.”); McGrain v. Daugherty, 273 U.S. 135,

174 (1927) (“[T]he power of inquiry—with process to

enforce it—is an essential and appropriate auxiliary

to the legislative function.”).

Congressional

subpoenas are entitled to no less respect than

subpoenas issued by the judicial branch. See, e.g.,

Watkins, 354 U.S. at 187-88 (emphasizing the “duty

of all citizens” to comply).

Congress’s power to investigate, while not

unlimited, is “necessarily broad,” extending to any

subject “on which legislation could be had.”

Eastland, 421 U.S. at 504 n.15 (citation omitted).

Congress has the right and the duty to follow the

facts as they develop, like any investigator, even if

the search “takes the searchers up some ‘blind

alleys.’” Id. at 509. Congress has exercised this

power “throughout our history,” to inquire into a wide

range of topics “concerning which Congress might

legislate or decide upon due investigation not to

legislate,” as well as to determine “what to

appropriate from the national purse, or whether to

appropriate.” Barenblatt v. United States, 360 U.S.

109, 111 (1959).

Indeed, because one cannot meaningfully legislate

without first assessing the facts, legislative

investigative authority is as deeply rooted in our

history as the legislative power itself. Quinn, 349

U.S. at 160-61 (Congress’s power to investigate is

“deeply

rooted

in

American

and

English

institutions”). Even before the Republic was formed,

colonial legislatures “very early assumed, usually

without question, the right to investigate the conduct

of the other departments of the government and also

other matters of general concern brought to their

attention.” C.S. Potts, Power of Legislative Bodies to

6

Punish for Contempt, 74 U. Pa. L. Rev. 691, 708

(1926). The Continental Congress likewise exercised

investigative power, and in at least one instance

summoned an individual to appear. See id. at 716.

Once the states were established, early state

legislatures also asserted investigative authority,

including the authority of compulsory process. See

id. at 718.

The first Congresses used compulsory process to

investigate “suspected corruption or mismanagement

of government officials.” Watkins, 354 U.S. at 192.

Subsequent Congresses launched investigations into

the effect of tariffs on domestic manufacturers, the

raid on Harper’s Ferry, and other topics of public

interest, supported by compulsory process. See id. at

193 & nn.21-22; McGrain, 273 U.S. at 161-62; James

M. Landis, Constitutional Limitations on the

Congressional Power of Investigation, 40 Harv. L.

Rev. 153, 178 (1926).

Congress has continued to exercise this authority

throughout American history, frequently examining

past wrongdoing, including potential criminal

conduct, to inform whether reform was warranted.

High-profile

recent

examples

include

the

investigation into the global financial crisis of 20072008 by the Financial Crisis Inquiry Commission—

modeled after the Pecora Commission that

investigated the causes of the Great Depression—and

the investigations by multiple congressional

committees into the collapse of Enron. Congress also

has investigated, for example, “mob violence and

organized crime,” In re the Application of U.S. Senate

Permanent Subcomm. on Investigations, 655 F.2d

1232, 1233 (D.C. Cir. 1981), and “human trafficking,

particularly sex trafficking, on the Internet,” Senate

7

Permanent Subcomm. v. Ferrer, 199 F. Supp. 3d 125,

128 (D.D.C. 2016), vacated as moot, 856 F.3d 1080

(D.C. Cir. 2017).

Contrary to the unsupported assertions of the

Solicitor General, Congress’s investigative arsenal

includes not only the “wide net” but also the

“harpoon.” DOJ Br. 29. In investigating the financial

crisis, for example, the Financial Crisis Inquiry

Commission subpoenaed financial records from

Goldman Sachs, including records related to specific

Goldman transactions and customer names. See

Sewell Chan & Gretchen Morgenson, Financial Panel

Issues a Subpoena to Goldman Sachs, N.Y. Times,

June 7, 2010. And in the Enron investigation, a

Senate subcommittee issued 49 subpoenas to

individuals.

Congress Steps Up Enron Probes,

CNN.com

(Jan.

12,

2002,

9:17

AM),

https://cnn.it/392F6sy.

B.

Congress’s Investigative Authority

Has Long Been Understood To

Apply to the Executive Branch,

Including the President.

Since the first Congresses began investigating

“suspected corruption or mismanagement of

government officials,” Watkins, 354 U.S. at 192,

Congress has investigated the President and his

administration. And since the Founding, Presidents

have acknowledged Congress’s authority to conduct

such investigations, often working with Congress to

accommodate its demands for information consistent

with the President’s legitimate prerogatives. The

suggestion by President Trump and the Solicitor

General that Congress lacks authority (or at most has

an extremely circumscribed authority) to direct its

8

investigative authority at the President, see Pet. Br.

32-35, DOJ Br. 17-25, runs counter to American

history and law.

As early as 1792, the House established a

committee to investigate Major General Arthur St.

Clair’s failed expedition in the Northwest Territory

and authorized the committee “to call for such

persons, papers, and records, as may be necessary to

assist their inquiries.” 3 Annals of Cong. 493 (1792).

When the committee sought records from President

Washington, the President cooperated in full on the

advice of his Cabinet ministers—including both

Alexander Hamilton and Thomas Jefferson—who

agreed that the House was authorized to make such

inquiries through the committee. See William P.

Marshall, The Limits on Congress’s Authority To

Investigate the President, 2004 U. Ill. L. Rev. 781, 786

(2004). In connection with a later investigation into

the Jay Treaty, President Washington likewise

acknowledged that production of papers “could be

required of him by either House of Congress as a

right.” 5 Annals of Cong. 400-01, 759-60 (1796).

Although the Solicitor General points out that

Thomas Jefferson later maintained, while he was

President, that the President was immune from

judicial process, see DOJ Br. 14 (citing Nixon v.

Fitzgerald, 457 U.S. 731, 750 n.31 (1982)), it fails to

mention that Chief Justice Marshall rejected

Jefferson’s position and squarely held that a

subpoena duces tecum may be issued to the

President. See United States v. Burr, 25 F. Cas. 30,

34-35 (C.C.D. Va. 1807).

This Court has

“unequivocally and emphatically endorsed Marshall’s

9

position.” Clinton v. Jones, 520 U.S. 681, 704 (1997);

see United States v. Nixon, 418 U.S. 683, 706 (1974).

In the centuries since, Congress has continued to

investigate the conduct of the Executive Branch,

including the President specifically. See, e.g., H.R.

Rep. No. 22-502 (1832) (authorizing inquiry into

whether former Secretary of War John Eaton had

fraudulently awarded a contract, and “whether the

President of the United States had any knowledge of

such attempted fraud, and whether he disapproved or

approved of the same”).

The long list of such

investigations includes Watergate, Iran-Contra,

Whitewater, and the Teapot Dome scandal.

The aftermath of many of these investigations

illustrates the fallacy in President Trump’s assertion

that examining past wrongs is “law enforcement”

rather than proper legislative inquiry. Pet. Br. 36-45.

Facts uncovered in congressional investigations have

informed, and in some cases prompted, many

important legislative reforms. For example, after a

congressional

investigation

exposed

pervasive

Executive Branch corruption in the Teapot Dome

scandal, Congress enacted remedial legislation

including the Revenue Act of 1924 and the Federal

Corrupt Practices Act of 1925. After Watergate,

Congress passed far-reaching reforms—including the

Ethics in Government Act, the Congressional Budget

and Impoundment Control Act of 1974, the War

Powers Resolution, and the Foreign Intelligence

Surveillance Act—to address problems identified in

the Watergate investigation. Michael A. Fitts, The

Legalization of the Presidency: A Twenty-Five Year

Watergate Retrospective, 43 St. Louis Univ. Law J.

725, 726 (1999). Thus, investigations into past

wrongdoing of the President and his associates,

10

initiated outside of any impeachment proceeding,

have led to and informed substantial legislation that

imposed rule-of-law principles on the Presidency. See

Nixon v. Administrator of General Services, 433 U.S.

425, 453 (1977) (recognizing that Congress “need[ed]

to understand how [American] political processes had

in fact operated” during this period “in order to gauge

the necessity for remedial legislation”).

Presidents generally have continued to recognize

Congress’s legitimate investigative authority. While

Presidents have negotiated with Congress to reach

accommodations

protecting

their

legitimate

interests—and have, on occasion, gone to court to

assert claims of executive privilege—they have never

asserted anything like the sweeping blanket

immunity that President Trump claims in this case.

Overall, then, the history of congressional

investigations of Presidents since Washington

strongly supports Congress’s authority to demand

information from the President and refutes his

suggestions that Congress has little or no authority to

issue such demands.

Although the President

characterizes this history as reflecting “congressional

avoidance of the practice” of subpoenaing the

President, Pet. Br. 31 (citation omitted), Presidents

have long acquiesced to Congress’s investigative

demands even absent compulsory process. If the

President were correct that he has—and that his

office requires that he have—immunity from such

demands by virtue of his status as President, it is

inconceivable that such protection would be

discovered only now, after more than two centuries of

presidential accommodation of the congressional

investigative and oversight process. By the same

token, the historical record provides no reason to fear

11

an avalanche of illegitimate subpoenas motivated by

partisan political considerations; no reason to fear

that subpoenas will disrupt the function of the

Executive Branch; and no reason to assume that

Congress will be unwilling to accommodate legitimate

concerns

regarding

privileged

or

sensitive

information. If none of these abuses have come to

pass in more than 200 years, there is no basis to

believe that declining to block the subpoenas here

will have that effect.

II.

Congress’s Authority to Investigate is

Subject to Appropriate Constraints That

Adequately

Protect

the

Legitimate

Interests of the President and Other

Persons.

The authority of Congress to investigate, while

broad, is subject to well-established legal limits. The

relevant case law respects Congress’s legitimate need

for information while protecting individual liberties

and privileges. When the individual at issue is the

President, courts also respect and take into account

the President’s responsibilities and the legitimate

interests of his office, including any claim of executive

privilege. President Trump offers no reason why

these traditional rules are not sufficient. Instead, he

conjures hypothetical investigative demands not

before the Court. The fact that he can point to no

actual abuse, and has to rely instead on speculation

is itself telling. But even as to his hypotheticals, the

existing rules are sufficient to forestall abuse and to

ensure that all legitimate interests are protected.

12

A.

Congressional Investigations are

Subject to Scope and Relevancy

Limits, and May Be Required to

Yield to Legitimate Privileges and

Protected Interests.

All congressional investigations are subject to

judicially enforceable constraints.

First, no

congressional inquiry may be maintained without a

“valid legislative purpose.” Eastland, 421 U.S. at

497. Congress may investigate only those subjects

“on which legislation may be had,” id. at 508, and

may not supplant either of the other branches in

their exclusive functions, see Watkins, 354 U.S. at

187; Barenblatt, 360 U.S. at 111-12; see, e.g.,

Kilbourn v. Thompson, 103 U.S. 168, 194-95 (1880).

Congress’s power to investigate is “co-extensive with

[its] power to legislate,” and cannot be extended to an

area in which legislation is forbidden. Quinn, 349

U.S. at 160-61.

Second, Congress may use compulsory process only

insofar as it is “calculated to elicit” information that

would be relevant to, and therefore would “materially

aid[],” a legitimate investigation. McGrain, 273 U.S.

at 177. For example, Congress may not, in the name

of informing itself or the public, subpoena

information if “the predominant result” of obtaining it

“can only be an invasion of the private rights of

individuals.” Watkins, 354 U.S. at 200.

Third, Congress’s investigative powers, like other

forms of governmental action, are limited by the Bill

of Rights and otherwise applicable privileges and

rights.

See, e.g., id. at 198 (recognizing “the

restraints of the Bill of Rights upon congressional

investigations”). Courts have intervened to vindicate

13

the rights of subjects of congressional investigations

under the First Amendment, see, e.g., United States v.

Rumely, 345 U.S. 41, 48 (1953), the Fourth

Amendment, see, e.g., United States v. McSurely, 473

F.2d 1178, 1193 (D.C. Cir. 1972), and the Fifth

Amendment, see, e.g., Watkins, 354 U.S. at 215;

Quinn, 349 U.S. at 163-65.

These constraints protect the liberties and

constitutional interests of all citizens, including the

President, and prevent abuses of authority by

congressional investigators.

President Trump

suggests that unless this Court grants him the

extraordinary

protection

from

congressional

investigation that he demands, Congress could

subpoena his “high school transcripts in service of an

investigation into K-12 education,” or “his medical

records as part of an investigation into public health.”

Pet. Br. 51-52 (quoting Pet. App. 43a); see also DOJ

Br. 20. But in fact, under this Court’s precedent it is

difficult to imagine a circumstance under which

Congress could permissibly subpoena any individual’s

high school transcripts or medical records for such

purposes. Absent a particularized showing, such

evidence would not be relevant, and such a subpoena

would not be “calculated to” “materially aid[]” a

congressional investigation of those topics. McGrain,

273 U.S. at 177. Congress cannot enforce a subpoena

if the effect of such enforcement “can only be” to

invade the private rights of individuals. Watkins, 354

U.S. at 200. That the President has to strain for such

fanciful hypotheticals only underscores that while

Congress’s investigative authority is as old as

Congress itself, it has never pressed such outlandish

investigative demands on any President. And the

D.C. Circuit, whose judgment the President seeks

14

here to overturn, indicated that it would reject such

subpoenas on relevancy grounds. Pet. App. 43a.

B.

The President and Other Executive

Branch Officials Are Appropriately

Protected by These Doctrines.

All the protections discussed above apply when the

President is the subject of a congressional

investigation or subpoena. Moreover, just as courts

managing civil litigation involving the President

must conduct the proceedings—including the timing

and scope of discovery—in light of “[t]he high respect

that is owed to the office of the Chief Executive,”

Clinton, 520 U.S. at 707, Congress must also respect

the legitimate interests of the Presidency, and courts

are available to ensure that it does. The long history

of negotiations between Congress and the President

regarding the timing and scope of disclosures by the

Executive strongly suggests that congressional

investigative demands generally do not impose an

inordinate burden on those interests, particularly

relative to Congress’s own considerable interests. See

Anderson v. Dunn, 19 U.S. 204, 226 (1821) (“[I]f there

is one maxim which necessarily rides over all others,

in the practical application of government, it is, that

the public functionaries must be left at liberty to

exercise the powers which the people have intrusted

to them.”); Neal Devins, Congressional-Executive

Information Access Disputes: A Modest Proposal—Do

Nothing, 48 Admin. L. Rev. 109, 116 (1996)

(discussing long history of executive cooperation with

congressional demands for information).

Furthermore, the President has the right to object

to particular subpoenas or to argue that they should

be narrowed on the basis of any particular burdens

15

they impose on his conduct of his office. Courts

recognize that the President has legitimate interests,

for example, in avoiding time-consuming compliance

burdens that distract from his public duties, see, e.g.,

Clinton, 520 U.S. at 697-99, and in protecting certain

Executive Branch confidentiality interests, see, e.g.,

Nixon, 418 U.S. at 705.

In appropriate

circumstances, the President is entitled to

consideration of these interests even without raising

a claim of executive privilege. See Cheney v. U.S.

Dist. Court for D.C., 542 U.S. 367, 389 (2004). But of

course the President also may invoke that privilege

where appropriate, providing an additional safeguard

for the legitimate interests he holds in his office.

In this case, executive privilege obviously cannot be

invoked because the information Congress seeks

(which largely predates the Trump presidency) does

not implicate it. Indeed, President Trump makes no

specific showing that the subpoenas at issue would

impinge in any way on the legitimate interests of his

office. To the contrary, he all but concedes that his

concern is not the subpoenas that are actually at

issue in this case but rather “potential additional

[subpoenas] that an affirmance of the Court of

Appeals judgment might spawn.”

Pet. Br. 64

(emphasis and alterations in Petitioners’ brief). But

the mere fact that “the power of inquiry . . . may be

abusively and oppressively exerted . . . affords no

ground for denying the power. The same contention

might be directed against the power to legislate, and

of course would be unavailing. We must assume, for

present purposes, that neither houses will be

disposed to exert the power beyond its proper bounds,

or without due regard to the rights of witnesses.”

McGrain, 273 U.S. at 175-76.

16

The President argues broadly that the protections

applicable to every other citizen “will not do when

Congress seeks the President’s records,” and that the

status of his office ipso facto requires Congress to

make a greater showing to subpoena his records, if

Congress can subpoena them at all. Pet. Br. 53. No

authority supports this argument. Nor does any

authority support the President’s claim that the

showing Congress must make to overcome a claim of

executive

privilege—a

“demonstrated,

specific

need”—is somehow also required when the President

asserts no privileged communications whatsoever.

Id. (citation omitted); see also DOJ Br. 8.

In short, the President has offered no persuasive

reason why this Court’s existing safeguards are not

adequate to protect the President’s legitimate public

and private interests, especially in the circumstances

of this case.

This Court should adhere to the

principles it has developed over the course of our

nation’s history, which sufficiently protect the

legitimate interests of the President and other

persons subject to Congress’s investigatory powers,

while simultaneously recognizing the legitimate

authority of a coequal branch to conduct its business

informed by appropriate fact-finding.

III.

The President’s Argument for Sweeping

Immunity Lacks Any Justification and

Would Endanger the Separation of

Powers.

Under this Court’s separation of powers

jurisprudence it is the President’s immunity claim,

not Congress’s exercise of investigative power, that

requires special justification. President Trump offers

none. Moreover, the immunity he seeks would pose

17

substantial danger to the separation of powers, which

requires appropriate oversight of the President.

Indeed, this Court has deemed other mechanisms of

presidential oversight unnecessary precisely in light

of the congressional investigatory tools that the

President’s claim of immunity would substantially

weaken.

A.

Under This Court’s Jurisprudence,

the President’s Assertion of

Immunity Requires a Justification

He Has Not Provided.

As a general matter, the law disfavors immunities

for government officials—due in part to “the

undeniable tension between official immunities and

the ideal of the rule of law”—and so places the

burden on the party seeking an immunity to justify

its need. Forrester v. White, 484 U.S. 219, 223 (1988).

Any presidential immunity, like that of other

officials, “must be related closely to the immunity’s

justifying purposes.” See Fitzgerald, 457 U.S. at 755.

Thus, for example, contrary to the Solicitor General’s

characterization, see DOJ Br. 14, Fitzgerald did not

recognize broad presidential immunity from the

actions of coordinate branches. Rather, Fitzgerald

“merely precludes a particular private remedy,”

namely damages, and only for the President’s official

actions. 457 U.S. at 758.

That remedy, of course, is not implicated here, nor

are the President’s official actions. The Court has

never even “suggested that the President, or any

other official, has an immunity that extends beyond

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

Clinton, 520 U.S. at 694. Even where the Court has

recognized a presidential immunity for official acts, it

18

has been careful to grant only such immunity as was

necessary based on “the nature of the function

performed, not the identity of the actor who

performed it.”

Id. at 694-95 (citation omitted).

Additionally, where one branch claims a right to

exemption from the other branch’s procedures, the

Court’s analysis must take into account the

legitimate needs of both branches. Nixon, 418 U.S. at

707.

This principle is so important that this Court has

construed as limited even those official privileges and

immunities that the constitutional text expressly

provides. See, e.g., Hutchinson v. Proxmire, 443 U.S.

111, 127 (1979); Gravel v. United States, 408 U.S.

606, 626-27 (1972) (holding that Speech or Debate

Clause provides only a limited immunity that did not

excuse U.S. Senator’s aide from testifying before

grand jury regarding Senator’s alleged arrangement

for private publication of classified documents). In

Proxmire, the Court reasoned that the immunity

provided by the Speech or Debate Clause was

intended to protect legislative independence, not

supremacy, and any attempt to claim immunity that

goes beyond what is needed to preserve that

independence is an abuse of the law. 443 U.S. at 12627.

The President’s assertion of immunity in this case

transgresses these principles. Here, as in Clinton,

the President’s official conduct is not the subject of

the information sought. “The litigation of questions

that relate entirely to the unofficial conduct of the

individual who happens to be the President poses no

perceptible risk of misallocation of either judicial

power or executive power,” and this Court has never

recognized an immunity in any such context.

19

Clinton, 520 U.S. at 694, 701. The President’s

assertion of immunity is even more extreme here

because he claims the right even to bar third parties

from disclosing his information to Congress. If such a

claim of implied immunity could be justified, it would

require a justification closely related to a specific

presidential function, and its value would have to be

weighed against Congress’s investigative interest.

See id. at 694-95; Nixon, 418 U.S. at 707. Instead,

the President has offered only abstract, hypothetical,

generalized interests tied to his identity as the

President rather than any particular function of his

office. This cannot suffice.

B.

The President’s Asserted Immunity

Would Directly Undermine the

Separation of Powers.

The President’s claimed immunity also should be

rejected because it would substantially interfere with

Congress’s constitutional authority—and indeed,

responsibility—to carry out appropriate oversight of

the Executive Branch.

The separation of powers does not contemplate

branches that are hermetically sealed off from one

another. See, e.g., Loving v. United States, 517 U.S.

748, 756 (1996).

As James Madison explained,

“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 703 (quoting The Federalist No. 47 (James

Madison)). To the contrary, the Constitution depends

upon the branches of government acting upon one

another in appropriate ways. See, e.g., Mistretta v.

United States, 488 U.S. 361, 381 (1989) (the

Constitution “imposes upon the Branches a degree of

20

overlapping responsibility, a duty of interdependence

as well as independence”). The President’s hyperbolic

claims that any congressional action to require

disclosure by the President would impermissibly

“exercise dominion and control over the Office of the

President” and “alter the basic structure of the

Federal

government,”

Pet.

Br.

47,

thus

misunderstand the structure of our government. See,

e.g., Fitzgerald, 457 U.S. at 753-54 (“It is settled law

that the separation-of-powers doctrine does not bar

every exercise of jurisdiction over the President of the

United States.”).

Furthermore, maintaining the separation of powers

envisioned by the Constitution requires adherence to

the fundamental principle that the President must be

subject to continuing scrutiny. Contrary to the

Solicitor General’s suggestion, DOJ Br. 17-18, the

Framers (who had fought a war to free themselves of

rule by a King) expressed deep concern about the risk

of an imperial Executive—and the President’s

authority has only grown over time. See generally

Martin S. Flaherty, The Most Dangerous Branch, 105

Yale L.J. 1725 (1996). As this Court noted in Clinton

v. Jones, James Wilson argued at the Constitutional

Convention that although the President is “placed

[on] high,” the danger of his position was minimized

by the fact that “not a single privilege is annexed to

his character; far from being above the laws, he is

amenable to them in his private character as a

citizen, and in his public character by impeachment.”

520 U.S. at 696 (quoting 2 J. Elliot, Debates on the

Federal Constitution 480 (2d ed. 1863)). The special

exemption from the ordinary operation of the laws

that the President seeks here in his private character

as a citizen would contravene that principle and

directly imperil Congress’s ability to engage in

21

oversight of the President’s ability to carry out his

public office.

Indeed, a core premise of the President’s and the

Solicitor General’s argument—that Congress should

have less authority to investigate the President than

to investigate the affairs of private citizens—gets it

exactly backward. When it comes to scrutiny of their

activities, elected officials generally have fewer

privileges than ordinary citizens. See, e.g., New York

Times v. Sullivan, 376 U.S. 254, 279-83 (1964); see

also Nixon v. Administrator, 433 U.S. at 465 (citing

President Nixon’s “status as a public figure” against

his constitutional challenge to the Presidential

Records Act on privacy grounds). That is because the

public has a right, grounded in the First Amendment

and the very structure of representative democracy,

to know about the workings of its government. The

First Amendment was grounded in the struggle “to

establish and preserve the right of the English people

to full information in respect of the doings or

misdoings of their government.”

Grosjean v.

American Press Company, 297 U.S. 233, 247 (1936);

see also Sullivan, 376 U.S. at 297 (Black, J.,

concurring) (“[A] representative democracy ceases to

exist the moment that the public functionaries are by

any means absolved from their responsibility to their

constituents.” (citation omitted)).

The Framers of our Constitution, and American

leaders throughout our history, have emphasized that

our democracy and ultimately our liberty depend on a

citizenry that is well-informed about the activities of

its officers. As James Madison explained:

Should it happen, as the Constitution supposes

it may happen, that either of [the political]

branches of the government may not have duly

22

discharged its trust, it is natural and proper,

that, according to the cause and degree of their

faults, they should be brought into contempt or

disrepute, and incur the hatred of the

people. . . .

Whether it has, in any case,

happened that the proceedings of either or all

of those branches evince such a violation of

duty as to justify a contempt, a disrepute, or

hatred among the people, can only be

determined by a free examination thereof, and

a free communication among the people

thereon.

James Madison, Report on the Virginia Resolutions

(1799-1800). See also, e.g., 3 Jonathan Elliot, The

Debates in the Several State Conventions on the

Adoption of the Federal Constitution 169-70 (1881)

(Patrick Henry: “The liberties of a people never were,

nor ever will be, secure, when the transactions of

their rulers may be concealed from them.”); Letter

from Thomas Jefferson to Charles Yancey (Jan. 6,

1816), in 11 Works of Thomas Jefferson 497 (Ford ed.

1905) (“If a nation expects to be ignorant and free, in

a state of civilization, it expects what never was and

never will be.”); Woodrow Wilson, Congressional

Government: A Study in American Politics 303 (1885)

(emphasizing

the

importance

of

Congress’s

investigative power and informing function because

“the only really self-governing people is that people

which discusses and interrogates its administration”).

Thus, the fact that the President is the President

supports congressional and public scrutiny of his

activities. See, e.g., Kilbourn, 103 U.S. at 195 (where

Congress has no ability to affect the subject of an

investigation by legislation, the House does not have

authority to investigate “the private affairs of

23

individuals who hold no office under the government”

(emphasis added)). The Solicitor General emphasizes

the

President’s

“vast

and

vital

public

responsibilities,” DOJ Br. 13-14; but the scope and

importance of those responsibilities is all the more

reason to ensure that the public’s representatives in

Congress have the necessary authority to carry out

effective oversight. See, e.g., Pennekamp v. Florida,

328 U.S. 331, 355 (1946) (Frankfurter, J., concurring)

(“Power in a democracy implies responsibility in its

exercise.”). That is especially true where, as here,

there is no reason to believe, and the President

makes no meaningful argument, that the particular

exercise of congressional oversight at issue would

interfere with his responsibilities in any way.

Congress has a constitutionally prescribed role and

duty to engage in legislative action, aided by its

investigative authority.

Congress’s capacity for

vigorous independent exercise of its constitutional

powers—including its powers to enact legislation,

appropriate (or deny) funds, authorize various

Executive Branch activities, and impeach—is

essential to checking the powers vested in the

President. Congress cannot effectively carry out this

crucial oversight role if it cannot inform itself, and in

appropriate circumstances the public, of facts that

may bear on the President’s performance of his

duties.

That is why this Court has described

Congress’s “informing function” as “indispensable”

and “not to be minimized.” Rumely, 345 U.S. at 43;

see also Watkins, 354 U.S. at 200 n.33 (Congress may

“inquire into and publicize,” inter alia, “corruption,

maladministration or inefficiency in agencies of the

Government”); Brett M. Kavanaugh, The President

and the Independent Counsel, 86 Geo. L.J. 2133, 2144

n.40

(1998)

(“Congressional

investigations

24

historically have been the primary manner in which

the public learns whether executive branch officials

have committed malfeasance in office.”).

Scholars likewise have emphasized the importance

of this function. See, e.g., Marshall, supra, at 799

(“Congress’s power to investigate plays a critical role

in the checks and balances of U.S. democracy” by

serving to deter “officials from acting in their own,

and not in the nation’s, best interests”); Arthur M.

Schlesinger,

Jr.,

Introduction

to

Congress

Investigates: 1792-1974, at xi, xii (Arthur M.

Schlesinger, Jr. & Roger Bruns eds., 1975) (“The

investigative power may indeed be the sharpest

legislative

weapon

against

Executive

aggrandizement.”); Bernard Schwartz, Executive

Privilege and Congressional Investigatory Power, 47

Cal. L. Rev. 3, 47 (1959) (“It is no overstatement to

say that vigorous employment by the Congress of its

investigatory power is essential to the preservation of

our representative democracy.”).

In the same vein, this Court has emphasized

Congress’s ability to provide vigorous oversight in

holding that other potential checks on the President

were not necessary to maintaining the separation of

powers.

In Fitzgerald, for example, the Court

explained that granting the President absolute

immunity from civil damages for actions taken in his

official capacity would not leave the nation

unprotected from presidential misconduct in part

because among the “checks” to which the President is

subject to a greater degree than “other executive

officials” is “[v]igilant oversight by Congress,” which

“may serve to deter Presidential abuses of office, as

well as to make credible the threat of impeachment.”

457 U.S. at 757. And before joining the Court,

25

Justice

Kavanaugh

noted

that

under

the

Constitution, “Congress alone is directly responsible

for overseeing the conduct of the President of the

United States” and that “[t]he Constitution itself

seems to dictate . . . that congressional investigation

must take place in lieu of criminal investigation when

the President is the subject of investigation.”

Kavanaugh, supra, at 2158, 2178; see also Brett M.

Kavanaugh, First Let Congress Do Its Job, Wash.

Post, Feb. 26, 1999 (arguing that Congress should let

the independent counsel statute lapse in part because

the statute allowed Congress “to avoid its own

investigative and oversight responsibilities and

thereby avoid (or at least defer) responsibility for

unpopular or politically divisive investigations”). If

the Court were to hold now that the President has

broad immunity from congressional investigations, it

would

leave

the

President

dangerously

unconstrained.

IV.

The Subpoenas at Issue in This Case Are

Well Within the Investigative Authority of

the House of Representatives.

For all the reasons addressed above, the Court

should reject President Trump’s effort to deny

Congress its traditional investigatory power and

should reaffirm existing standards for evaluating

congressional investigatory demands. Under any

reasonable view of Congress’s investigative authority,

the subpoenas at issue here are valid.

First, the information sought by the subpoenas is

relevant to multiple subjects “on which legislation

may be had,” Eastland, 421 U.S. at 508, without

exceeding Congress’s “potential power to enact and

appropriate under the Constitution,” Barenblatt, 360

26

U.S. at 111. Based on its review of the materials

subpoenaed, Congress may determine, for example,

whether any changes are needed to financial

disclosure laws that apply to the President, and

whether any reforms—including potential changes in

funding through the appropriations process—are

needed to the Office of Government Ethics. The

House already has passed legislation to make

changes along these lines, and other such bills are

pending. Pet. App. 30a-31a. Congress also has a

legitimate interest in investigating the risk of the

President or his associates being compromised by any

foreign actor in order to determine whether any

reforms are needed to address such threats, including

in the form of new or amended legislation or changes

through the appropriations process.

The President resists this conclusion by contesting

Congress’s constitutional authority to pass any

relevant legislation that might apply to him, even if it

merely required disclosure. See Pet. Br. 45-51. But

that extraordinary argument would sweep aside a

vast range of federal legislation, including the

existing presidential disclosure provisions of the

Ethics in Government Act. It also would invalidate,

or seriously threaten, the Presidential Records Act,

which this Court has upheld with specific reference to

Congress’s investigative power.

See Nixon v.

Administrator, 433 U.S. at 452-53. The President’s

argument, by its terms, also appears to threaten

virtually any legislative regulation of the President’s

exercise of his authorities under the Constitution,

such as his power to authorize covert actions or

command the military. But Congress extensively

regulates

and

oversees

the

President’s

superintendence of the intelligence community and

has long regulated the military as well. The Court

27

should decline the President’s invitation to reach out

and invalidate broad swaths of both existing law and

potential legislation.

President Trump also contends that this Court

should presume, and then find, that Congress’s

stated purposes for issuing the subpoenas at issue

here are pretextual and that the real reasons are

illegitimate. See Pet. Br. 44-45. That approach

would offend the separation of powers and is contrary

to this Court’s precedent. The Court “generally

take[s] at face value the Senate’s own report of its

actions,” NLRB v. Noel Canning, 573 U.S. 513, 551

(2014), and the same is true of the House. See, e.g.,

Marshall Field & Co. v. Clark, 143 U.S. 649, 672

(1892); United States v. Ballin, 144 U.S. 1, 4 (1892).

In particular, the Court generally has deferred to

congressional investigators regarding the purpose of

their investigations, presuming that Congress

investigates legitimately and in good faith regardless

of the fact that—as is often the case—investigations

have the potential to uncover wrongdoing, even of a

criminal nature. See, e.g., Eastland, 421 U.S. at 508;

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

Barenblatt, 360 U.S. at 132; McGrain, 273 U.S. at

179-80.

This deferential approach not only safeguards

Congress’s role in the separation of powers but also

respects important limits on the Court’s role by

avoiding, as much as possible, both a necessarily

subjective assessment of the motives of a multimember body, and the issuance of preemptive

advisory opinions declaring illegitimate wide swaths

of potential congressional legislation, without any

specific law before the Court. An overly expansive

view of courts’ authority to second-guess Congress’s

28

motives in facially legitimate exercises of

investigative authority would risk creating “a selfoperating restraint on congressional inquiry.”

Hutcheson v. United States, 369 U.S. 599, 613 n.16

(1962) (plurality opinion); see also Nashville,

Chattanooga & St. Louis Railway v. Wallace, 288

U.S. 249, 262 (1933) (courts may not make “abstract

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”). To

determine that Congress is acting without any

legitimate basis, the Court would have to assess—

and reject—an almost limitless range of potential

legislation as beyond Congress’s constitutional

authority, in the absence of any specific law to assess.

The deferential approach also avoids requiring

courts to engage in the impossible line-drawing task

that the President’s asserted distinction between

legislative investigation and “law enforcement” would

As the Court has recognized, because

entail. 3

lawmaking requires understanding where problems

exist, and where existing legal strictures are

inadequate, pursuing investigations in aid of

legislation does often require looking into past and

present wrongdoing. See, e.g., Watkins, 354 U.S. at

187 (Congress’s “broad” investigative power

encompasses, inter alia, “surveys of defects in our

social, economic or political system for the purpose of

To be sure, were Congress to engage in an investigation purely

for the purpose of obtaining information to pass on to a

prosecutor, its actions would be illegitimate. But because

virtually any potentially illegal conduct can give rise to both law

enforcement by the Executive Branch and oversight and

statutory reform by Congress, the President’s invitation to treat

these as mutually exclusive makes no sense.

3

29

enabling the Congress to remedy them,” and “probes

into departments of the Federal Government to

expose

corruption,

inefficiency

or

waste.”).

Additionally, the deferential approach affords to a

coequal branch of government the approach the Court

has adopted for the President in generally taking at

face value his stated reason for his actions. See, e.g.,

Trump v. Hawaii, 138 S. Ct. 2392, 2419 (2018). 4

Considering the functional analysis this Court has

employed in analyzing presidential immunity claims,

see, e.g., Fitzgerald, 457 U.S. at 749, it is important

that the President can assert no specific privilege and

identify no specific harm to the functioning of the

Executive Branch that would result from the

disclosure to Congress of the materials sought here.

The documents sought do not implicate the

President’s confidential communications with his

advisors. Because discovery is sought from third

parties, the President does not personally have to do

The Solicitor General likewise argues that the Court should do

otherwise in this case, relying on Kilbourn. But in that case, the

Court repeatedly emphasized that “no suggestion ha[d] been

made” of what legislation Congress might conceivably enact

based on the investigation at issue. 103 U.S. at 194-95. Absent

such suggestion, the Court held that Congress has no authority

“to enter upon this investigation into the private affairs of

individuals who hold no office under the government.” Id. at 195

(emphasis added); see also Hutcheson, 369 U.S. at 613 n.16

(Brennan, J., concurring) (observing that Kilbourn “[a]t most”

stands for “the proposition that Congress cannot constitutionally

inquire ‘into the private affairs of individuals who hold no office

under the government’ when the investigation ‘could result in no

valid legislation on the subject to which the inquiry referred’”).

Here, by contrast, a wide range of potential legislation (and

legislation already under consideration by Congress) is readily

identifiable, and Congress is exercising oversight of the

President, not a wholly private person.

4

30

anything to comply with the subpoenas, so there is no

reason to fear distraction from the duties of the office.

And the interest in protecting the Presidency is

further attenuated in light of the fact that all of the

information sought concerns his conduct outside of

office, and that much of it predates President

Trump’s time in office altogether. See Clinton, 520

U.S. at 692-95.

By contrast, the intrusion into legitimate

presidential interests involved in Clinton v. Jones

was far greater. In that case, President Clinton

argued that allowing Paula Jones’s civil suit to go

forward while he was in office would interfere with

his ability to carry out his public responsibilities. See

Clinton, 520 U.S. at 697-98. In unanimously holding

nevertheless that the case would not be stayed while

the President was in office, the Court noted that in

other cases Presidents had responded to written

interrogatories, given depositions, and provided

videotaped trial testimony. See id. at 704-05. Here,

by contrast, President Trump need take no action at

all in response to the subpoenas.

Because, as in Clinton v. Jones, the President’s

unofficial conduct is at issue, the interest in

protecting

the

confidentiality

of

official

communications is not a factor. Notably, however,

during the Clinton administration, courts refused to

recognize a protective-function privilege for Secret

Service agents assigned to the President, see In re

Sealed Case, 148 F.3d 1073, 1079 (D.C. Cir.), cert.

denied, 119 S. Ct. 461 (1998), and rejected an

asserted privilege for certain Executive Office

communications by Deputy White House Counsel

Bruce Lindsey, see In re Lindsey, 158 F.3d 1263,

1282-83 (D.C. Cir.), cert. denied, 525 U.S. 996 (1998).

31

In those cases, unlike here, the President’s interest in

confidential official communications was at issue—

and the disruption to the President’s office was far

greater than that posed by the third-party compliance

sought here. At the same time, the public interest in

the congressional investigation at issue here surely is

no less weighty than that at stake in the private civil

suit against President Clinton.

Finally, the fact that the House has the sole power

of impeachment strengthens its authority to

investigate presidential misconduct—and does not, as

the President suggests, create an impeachmentinquiry precondition to Congress’s use of its

investigative power. The House must be able to

investigate to inform its exercise or non-exercise of all

its powers. See, e.g., Barenblatt, 360 U.S. at 111. To

require the House to open an impeachment inquiry in

order to conduct oversight over the President that

may well lead only to legislation or appropriations

responses would serve only to encourage (if not

necessitate) the use of such inquiries, which would

diminish the Presidency, cheapen the impeachment

power, and confuse the public.

*

*

*

In 1973, during hearings of the Senate Select

Committee on Presidential Campaign Activities,

Senator Howard Baker asked one of the most famous

questions in American history:

“What did the

President know, and when did he know it?”

Congress’s effort to find the answer to that question

ultimately led not only to the commencement of

impeachment proceedings the following year but also

to a raft of new reform legislation intended to protect

Congress and the public from excessive executive

power.

Now, the President—in his personal

32

capacity—comes before the Court asking it to roll

back its precedents from that era and since; to

declare that post-Watergate legislation unlawful as

applied to him; and to declare that at the time

Senator Baker asked his famous question, Congress

had no right to know the answer. That result would

be contrary to American values, history, and law.

This Court should reject it.

CONCLUSION

For the foregoing reasons, the judgments of the

courts of appeals below should be affirmed.

March 4, 2020

Respectfully submitted,

COUNSEL FOR AMICI CURIAE

DAVID D. COLE

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, D.C. 20005

(202) 675-2330

dcole@aclu.org

DONALD B. VERRILLI, JR.

Counsel of Record

BRENDAN B. GANTS

MUNGER, TOLLES & OLSON LLP

1155 F Street, NW

7th Floor

Washington, D.C. 20004

(202) 220-1100

Donald.Verrilli@mto.com

JENNESA CALVO-FRIEDMAN

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

jcalvo-friedman@aclu.org

ARTHUR B. SPITZER

SCOTT MICHELMAN

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF THE

DISTRICT OF COLUMBIA

915 15th Street, NW

Washington, D.C. 20005

(202) 457-0800

aspitzer@acludc.org

smichelman@acludc.org