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 BIPARTISAN FORMER MEMBERS

OF CONGRESS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

————

SARAH TURBERVILLE

PROJECT ON GOVERNMENT

OVERSIGHT

1100 G Street NW

Suite 500

Washington, DC 20005

202-347-1122

sturberville@pogo.org

ANDRE M. MURA

Counsel of Record

GIBBS LAW GROUP LLP

505 14th Street

Suite 1110

Oakland, CA 94612

(510) 350-9700

amm@classlawgroup.com

Counsel for Amici Curiae

March 4, 2020

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

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

1

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

1

ARGUMENT ........................................................

3

I. CONGRESS’S BROAD INVESTIGATORY

POWER IS AN ESTABLISHED FEATURE OF THIS COURT’S SEPARATIONOF-POWERS JURISPRUDENCE ...........

3

II. CONGRESS’S LONG HISTORY OF

INVESTIGATIONS, INCLUDING OF

THE PRESIDENT, SHOULD CARRY

GREAT WEIGHT IN THIS COURTS

DETERMINATION OF THE SEPARATION OF POWERS ..................................

7

III. THE COURT SHOULD APPLY THE

PRESUMPTION OF VALIDITY IN

DECIDING THIS CASE ...........................

11

CONCLUSION ....................................................

14

APPENDIX

List of Amici Curiae—Former Members of

Congress ...........................................................

(i)

1a

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Barenblatt v. United States,

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

3, 4

Eastland v. United States Servicemen’s Fund,

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

Free Enter. Fund v. Pub. Co. Accounting

Oversight Bd.,

561 U.S. 477 (2010) ...................................

13

Hutcheson v. United States,

369 U.S. 599 (1962) ...................................

7

In re Chapman,

166 U.S. 661 (1897) ...................................

7

Kilbourn v. Thompson,

103 U.S. 168 (1880) ...................................

6

McCulloch v. Maryland,

4 Wheat. 316 (1819) ...................................

8

McGrain v. Daugherty,

273 U.S. 135 (1927) ................................. 3, 7, 11

McSurely v. McClellan,

553 F.2d 1277 (D.C. Cir. 1976) .................

6

Mistretta v. United States,

488 U.S. 361 (1989) ...................................

7-8

N.L.R.B. v. Noel Canning,

573 U.S. 513 (2014) ................................. 7, 8, 11

Quinn v. United States,

349 U.S. 155 (1955) ................................... 4, 6, 7

Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471 (1999) ...................................

12

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Tenney v. Brandhove,

341 U.S. 367 (1951) ...................................

12

The Pocket Veto Case,

279 U.S. 655 (1929) ...................................

8

Trump v. Deutsche Bank AG,

943 F. 3d 627 (2d Cir. 2019) .....................

13

Trump v. Mazars USA, LLP,

940 F. 3d 710 (D.C. Cir. 2019) ..................

13

United States v. Helstoski,

442 U.S. 477 (1979) ...................................

6

United States v. Johnson,

383 U.S. 169 (1966) ...................................

6

United States v. Miller,

425 U.S. 435 (1976) ...................................

14

United States v. Rumely,

345 U.S. 41 (1953) .....................................

4

Watkins v. United States,

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

Wilkinson v. United States,

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

12

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S., 579 (1952) ..................................

8

CONSTITUTION

U.S. Const. art. I...........................................

3

U.S. Const. art. I, § 1 ....................................

6

iv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Arthur Schlesinger Jr., Introduction to the

Previous Edition in I Congress Investigates:

A Documented History (Roger A. Bruns et

al. eds., 2011) ............................................

5

David R. Mayhew, Divided We Govern, Party

Control, Lawmaking, and Investigations

1946-2002 (Yale. Univ. Press 2005) .........

6

Donald A. Ritchie, The Pecora Committee

on the Stock Market Crash, 1933-34, in I

Congress Investigates: A Documented History (Roger A. Bruns et al. eds., 2011) .....

10

Douglas L. Kriner & Eric Schickler,

Investigating the President: Congressional Checks on Presidential Power

(2016) .........................................................

9

Hasia Diner, The Teapot Dome Scandal,

1922-24, in I Congress Investigates: A

Documented History (Roger A. Bruns et

al. eds., 2011) ............................................

9

Inquiry into the Matter of Billy Carter and

Libya: Hearings Before the Subcomm. to

Investigate Individuals Representing the

Interests of Foreign Gov’ts of the S.

Comm. on the Judiciary (Billy Carter

Hearings), vol. I, 96th Cong. 510 (1980) ...

10

James M. Landis, Constitutional Limitations on the Congressional Power of

Investigation, 40 Harv. L. Rev. 153 (1926)...

9

v

TABLE OF AUTHORITIES—Continued

Page(s)

Keith W. Olson, The Watergate Committee,

1973-74, in II Congress Investigates: A

Documented History (Roger A. Bruns et

al. eds., 2011) ............................................

9

Norman Dorsen & John H.F. Shattuck,

Executive Privilege, The Congress and the

Courts, 35 Ohio State L.J. 1 (1974) ..........

5

Note, The Presumption of Regularity in

Judicial Review of the Executive Branch,

131 Harv. L. Rev. 2431 (2018) .................. 12, 13

Telford Taylor, Grand Inquest: The Story of

Congressional Investigations (1955) ...........

9

The Federalist No. 51 (Feb. 6, 1877) ...........

5

U.S. Senate, Permanent Subcomm. on

Investigations, Comm. on Homeland Sec.

& Gov’t Affairs, Wall Street And The

Financial Crisis: Anatomy Of A Financial Collapse, Majority And Minority

Staff Report (Apr. 13, 2011) .....................

10

William P. Marshall, The Limits on Congress’s

Authority to Investigate the President,

2004 U. Ill. L. Rev. 781 (2004) ..................

4

Woodrow Wilson, Congressional Government:

A Study in American Politics (1913) ........

4, 5

INTEREST OF AMICI CURIAE1

Amici are a bipartisan group of former members of

the U.S. Senate and House of Representatives, all of

whom exercised the power of inquiry that is essential

to a functioning Congress.

Without robust investigatory powers, Congress could

neither legislate wisely or effectively, nor discharge its

duty to inquire into and publicize corruption, maladministration, or waste in government—including in

the Executive Branch. Amici thus have a substantial

interest in ensuring the continued breadth of Congress’s constitutional oversight authority.

SUMMARY OF ARGUMENT

1. Judicial precedent teaches that Congress’s broad

(but not unlimited) power to investigate is essential to

its legislative functions. Congress cannot legislate in

the dark but needs the broadest range of information

to make considered decisions. Sources of information

have long included members of the Executive Branch

and private citizens.

Precedent also teaches that Congress’s power to

probe and expose mismanagement in government is a

critical, and independent, feature of Congress’s oversight role. This “informing function” is indispensable

to decision-making and political accountability in a

democracy.

2. These traditional ways of governing give meaning to the Constitution and have carried great weight

1

No counsel for a party authored this brief in whole or in part

and no person other than amici and their counsel made a

monetary contribution to its preparation or submission. All

parties have provided blanket consent for the filing of amici

curiae briefs or filed letters of nonparticipation in this litigation.

2

in the proper interpretation of the Constitution’s separation of powers. History abounds with examples of

congressional oversight that birthed significant legislation or exposed private illegality or misfeasance

within the Executive Branch. These examples have

long informed what the law is.

3. Owing to this significant historical practice, the

Court has approached legal disputes over the scope of

Congress’s investigatory powers with judicial humility. Time and again, the Court has declined to find that

Congress or its committees have exceeded the bounds

of legislative power unless it is obvious that Congress

has sought to exercise an exclusive function of a

coordinate branch.

Thus, the Court has suggested that judicial review

is complete once a valid legislative purpose for an

investigation can be identified. It has been unwilling

to look behind Congress’s or a committee’s legislative

and oversight purposes, for example, to ascertain

motive.

The courts below nevertheless probed Congress’s

actual purposes for the committees’ investigations,

ultimately finding that the information sought was

sufficiently related to valid legislative purposes. Even

under the courts of appeals’ stricter standard, the

subpoenas should be upheld. But there is no good

reason to decline to presume that Congress’s actions

here were undertaken for legitimate purposes since

they are capable of being so construed. Just as this

Court applies a presumption of regularity to executive

action, so too should it apply the longstanding presumption that congressional committees act with a

legislative purpose and hence within their constitutional domain.

3

ARGUMENT

I. CONGRESS’S BROAD INVESTIGATORY

POWER IS AN ESTABLISHED FEATURE

OF THIS COURT’S SEPARATION-OFPOWERS JURISPRUDENCE.

Long ago, in the pathmarking decision of McGrain

v. Daugherty, 273 U.S. 135 (1927), this Court recognized Congress’s broad constitutional authority to

investigate in aid of its legislative powers under

Article I of the Constitution: “[T]he power of inquiry—

with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Id. at 174.

The Court has not wavered from that understanding. Thus, in Barenblatt v. United States, 360 U.S. 109

(1959), the Court recognized: “The power of inquiry

has been employed by Congress throughout our history, over the whole range of the national interests

concerning which Congress might legislate or decide

upon due investigation not to legislate; it has similarly

been utilized in determining what to appropriate from

the national purse, or whether to appropriate.” Id. at

111. Likewise, in Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), the Court again

appreciated that “the power to investigate is inherent

in the power to make laws because ‘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.’”) Id. at 504

(brackets omitted) (quoting McGrain, 273 U.S. at 175).

And for good reason. “Without the power to

investigate—including of course the authority to compel testimony, either through its own processes or

through judicial trial—Congress could be seriously

handicapped in its efforts to exercise its constitutional

4

function wisely and effectively.” Quinn v. United

States, 349 U.S. 155, 160–61 (1955). “[I]t is often

through congressional hearings and investigations

that foundational ideas and insights of how to address

social ills are generated. As history attests, some of

the nation’s most important enactments would never

have materialized had Congress not had investigative

powers.” William P. Marshall, The Limits on Congress’s Authority to Investigate the President, 2004 U.

Ill. L. Rev. 781, 799 (2004).

The Court has thus recognized Congress’s wide

latitude to investigate. “The scope of the power of

inquiry,” Barneblatt explained, “is as penetrating and

far-reaching as the potential power to enact and

appropriate under the Constitution.” 360 U.S. at 111.

“It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly

needed statutes. It includes surveys of defects in our

social, economic or political system for the purpose

of enabling the Congress to remedy them.” Watkins v.

United States, 354 U.S. 178, 187 (1957). And critically:

“It comprehends probes into departments of the

Federal Government to expose corruption, inefficiency

or waste.” Id.

Another independent source of Congress’s power

to investigate is the so-called “informing function.” See

Woodrow Wilson, Congressional Government: A Study

in American Politics 303 (1913). As then-Professor

Woodrow Wilson famously observed: “‘It is the proper

duty of a representative body to look diligently into

every affair of government and to talk much about

what it sees. . . . The informing function of Congress

should be preferred even to its legislative function.’”

Id; see also United States v. Rumely, 345 U.S. 41, 43

(1953). And so, even though Congress cannot “expose

5

for the sake of exposure,” it nevertheless can “inquire

into and publicize corruption, maladministration or

inefficiency in agencies of the Government” in order to

inform the public “concerning the workings of its

government.” Watkins, 354 U.S. at 200 & n.33.

The informing function plays a critical role in our

democracy by fostering self-governance: “[T]he only

really self-governing people is that people which discusses and interrogates its administration.” Wilson,

supra, at 303. The historian Arthur Schlesinger Jr.

thus observed in the wake of Watergate: “The manner

in which Congress exercises the investigative power

will largely determine in years to come whether the

problem posed in the 51st Federalist can be satisfactorily answered—whether the constitutional order will

in the end oblige the American government to control

itself.” See Arthur Schlesinger Jr., Introduction to the

Previous Edition in I Congress Investigates: A Documented History, xx (Roger A. Bruns et al. eds., 2011).

Other scholars took the same lesson from Watergate:

“[T]he denial of information to Congress must,

finally, be regarded as a more serious threat

to the balance of government than the denial

of evidence to a prosecutor, because the Congress can neither legislate, nor investigate,

nor impeach, if it lacks information to determine when to exercise these political powers,

which ultimately are the only effective checks

on a runaway Executive.

Norman Dorsen & John H.F. Shattuck, Executive

Privilege, The Congress and the Courts, 35 Ohio State

L.J. 1, 8 (1974). More recently still, a leading scholar

of Congress recognized: “Beyond making laws, Congress probably does nothing more consequential than

investigate alleged misbehavior in the executive

6

branch.” David R. Mayhew, Divided We Govern, Party

Control, Lawmaking, and Investigations 1946-2002, at

8 (Yale. Univ. Press 2005).

Courts have also recognized Congress’s informing

function when addressing the scope of the Constitution’s Speech or Debate Clause. U.S. Const. art. I, § 6,

cl.1. That provision works “to preserve the constitutional structure of separate, coequal, and independent

branches of government.” United States v. Helstoski,

442 U.S. 477, 491 (1979); see also United States v.

Johnson, 383 U.S. 169, 178 (1966) (Speech or Debate

Clause “reinforc[es] the separation of powers so deliberately established by the Founders”). In this context,

courts have found that fact-finding and informationgathering are legislative acts that enjoy speech-ordebate protection. E.g., Eastland, 421 U.S. at 508-09;

McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C.

Cir. 1976) (en banc) (opinion of Leventhal, J.).

These investigatory powers, however, are not unlimited. The power to investigate “must not be confused

with any of the powers of law enforcement.” Quinn,

349 U.S. at 161. “Nor does it extend to an area in which

Congress is forbidden to legislate.” Id. “Still further

limitations on the power to investigate are found in the

specific individual guarantees of the Bill of Rights

. . . .” Id. What’s more, the power to investigate “cannot

be used to inquire into private affairs unrelated to

a valid legislative purpose.” Id. And lastly, Congress

cannot “assume[ ] a power which could only be properly exercised by another branch of the government.”

Kilbourn v. Thompson, 103 U.S. 168, 192 (1880).

These constraints, however, are themselves quite

narrow. “At most, Kilbourn is authority for the proposition that Congress cannot constitutionally inquire

‘into the private affairs of individuals who hold no

7

office under the government’ when the investigation

‘could result in no valid legislation on the subject

to which the inquiry referred.’” Hutcheson v. United

States, 369 U.S. 599, 613 n.16 (1962) (lead opinion of

Harlan, J.). Congress can nonetheless investigate

private affairs “as long as the inquiry is related ‘to

a valid legislative purpose.’” Quinn, 349 U.S. at 161.

And though Congress cannot investigate merely to

punish, it can investigate wrongdoing even if such

conduct might otherwise reveal a crime or be the

subject of criminal process. See McGrain, 273 U.S. at

177-78; see also id. at 179-80 (“Nor do we think it a

valid objection to the investigation that it might

possibly disclose crime or wrongdoing on his part.”).

Lastly, although Congress’s investigatory authority is

co-extensive with its authority to enact valid legislation, there is no requirement that Congress identify

future legislation “in advance.” In re Chapman, 166

U.S. 661, 670 (1897). Nor is it necessary that Congress

conclude every investigation with legislation. That

is so because “[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. “To be a

valid legislative inquiry,” then, “there need be no

predictable end result.” Id.

II. CONGRESS’S LONG HISTORY OF INVESTIGATIONS, INCLUDING OF THE PRESIDENT, SHOULD CARRY GREAT WEIGHT

IN THIS COURT’S DETERMINATION OF

THE SEPARATION OF POWERS.

In separation-of-powers cases, the Court has “put

significant weight upon historical practice.” N.L.R.B.

v. Noel Canning, 573 U.S. 513, 524 (2014) (emphasis

8

removed); see, e.g., Mistretta v. United States, 488 U.S.

361, 400–01 (1989) (“While these [practices] spawned

spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give

meaning’ to the Constitution” (quoting Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S., 579, 610 (1952)

(Frankurter, J., concurring)).

In the seminal case of McCulloch v. Maryland,

4 Wheat. 316 (1819), for example, Chief Justice

Marshall wrote that “the respective powers of those

who are equally the representatives of the people, are

to be adjusted; if not put at rest by the practice of

the government, ought to receive a considerable

impression from that practice.” Id. at 401. Later, in

The Pocket Veto Case, 279 U.S. 655 (1929), the Court

recognized that “[l]ong settled and established practice

is a consideration of great weight in a proper interpretation of constitutional provisions” respecting the

relationship between Congress and the President.

Id. at 689. And more recently, the Court confirmed

that “the longstanding ‘practice of the government’

can inform our determination of ‘what the law is[.]’”

Noel Canning, 573 U.S. at 524 (citations omitted); see

generally William Baude, Constitutional Liquidation,

71 Stan. L. Rev. 1 (2019) (exploring Madison’s expectation that the Constitution’s meaning would be

“liquidated” over time by practice).

The relevant historical touchstones for this case

demonstrate a long lineage of congressional investigations into the financial affairs of individuals and

businesses, including those of the President and his

family, as those dealings pertain to legislative subjects

such as “money-laundering, election- and nationalsecurity, disclosure, and conflict-of-interest laws.”

Resp. Br. 53. Those inquires have often resulted in

9

legislative reforms or exposed misfeasance in government with the goal of ending Executive Branch

abuses. Indeed, scholars have estimated that, between

1898 and 2014, Congress held more than 4,500 hearings in the course of investigating allegations of

Executive Branch misconduct. See Douglas L. Kriner

& Eric Schickler, Investigating the President: Congressional Checks on Presidential Power 36 (2016).

Examples abound. From the start of the Republic,2

Congress has investigated:

2



military action, see Telford Taylor, Grand Inquest: The Story of Congressional Investigations

22-24 (1955) (recounting that President Washington, on recommendation of his Cabinet,

directed that records of General St. Clair’s

expedition be produced to a House committee);



corruption and self-dealing, see Hasia Diner,

The Teapot Dome Scandal, 1922-24, at 460-61,

in I Congress Investigates, supra (examining

Senate investigation into secret dealings between Secretary of Interior and oil companies);



illegality, see Keith W. Olson, The Watergate

Committee, 1973-74, at 886, in II Congress

Investigates, supra (documenting Senate inquiry into break-in at Democratic headquarters, an inquiry that included testimony of highlevel White House officials, such as the Chief of

Staff, Assistant to the President of Domestic

Affairs, and Counsel for the President);

Legislative investigation and compulsory process has been

traced to the English Parliament. See generally James M. Landis,

Constitutional Limitations on the Congressional Power of

Investigation, 40 Harv. L. Rev. 153, 162-63 (1926).





10

multiple financial crises, see Donald A. Ritchie,

The Pecora Committee on the Stock Market

Crash, 1933-34, at 500-502, in I Congress

Investigates, supra (examining extensive congressional investigation into the stock market

crash of 1929, and explaining that by 1934,

committee hearings “had generated 12,000

pages of testimony and more than a thousand

exhibit[s]”; and with that “necessary factual

base,” Congress passed the Glass Steagall Act,

the Securities Act of 1933, and the Securities

Exchange Act of 1934, which together “added

additional oversight and protection against

abuses”); see also U.S. Senate, Permanent

Subcomm. on Investigations, Comm. on Homeland Sec. & Gov’t Affairs, Wall Street And

The Financial Crisis: Anatomy Of A Financial

Collapse, Majority And Minority Staff Report

(Apr. 13, 2011) (two-year, bi-partisan investigation into economic collapse of 2008, culminating

in 750-page report based on 50 million pages of

documents and 150 interviews);

and conflicts-of-interest, see, e.g., Inquiry into

the Matter of Billy Carter and Libya: Hearings

Before the Subcomm. to Investigate Individuals

Representing the Interests of Foreign Gov’ts of

the S. Comm. on the Judiciary (Billy Carter

Hearings), vol. I, 96th Cong. 510 (1980) (Senate

investigation of President Carter’s business and

personal relationship with sibling for sibling’s

dealings with Libya); id., vol. III, at 1666, 1706

(Senate committee obtained (among other

things) sibling’s financial records).

Certain of these inquires (among others) touched on

“official and personal activities of Presidents and their

11

families throughout the Nation’s history.” Resp. Br.

12; see id. at 7-12 (collecting examples). And in many

such instances, Presidents and their families or close

associates have submitted to Congress’s oversight.

Resp. Br. 9-12 (Presidents Andrew Johnson, Carter,

and Reagan).

Given the history of congressional investigations,

the Court should “hesitate to upset the compromises

and working arrangements that the elected branches

of Government themselves have reached.” Noel

Canning, 573 U.S. at 526.

III. THE COURT SHOULD APPLY THE

PRESUMPTION

OF

VALIDITY

IN

DECIDING THIS CASE.

The courts below examined Congress’s objectives for

the investigations and found that the information

sought was sufficiently related to valid legislative

purposes. But this Court has been more circumspect

in its judicial review. Upon finding that the subject

matter of an investigation evinces a valid legislative

purpose, the Court has presumed that this was Congress’s “real object,” McGrain, 273 U.S. at 178—even

when, as in McGrain itself, the congressional resolution authorizing an investigation did not “avow” that

it was in aid of legislation, id. at 177, and the subpoena

in dispute sought information related to official conduct by a senior Executive Branch official, the

Attorney General. Id. at 151.

The Court in Watkins similarly urged deference to

Congress, instructing: “every reasonable indulgence of

legality must be accorded to the actions of a coordinate

branch of our Government.” 354 U.S. at 204. Later, in

Eastland, the Court admonished lower “courts [ ] not

[to] go beyond the narrow confines of determining that

12

a committee’s inquiry may fairly be deemed within its

province.’” 421 U.S. at 506 (1975) (quoting Tenney v.

Brandhove, 341 U.S. 367, 378 (1951)).

Consequently, “[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.” Tenney, 341 U.S. at 378 (emphasis added).

Otherwise, courts should not “speculate as to the

motivations that may have prompted the decision of

individual [committee] members” to investigate. See

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

In any event, “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.

This presumption of validity for congressional investigations is akin to the presumption of regularity that

attends executive action. Just as the Court has

required that it be obvious that a congressional investigation trespass on the exclusive functions of a

coordinate branch, the Court has required “clear

evidence” before it will “displac[e] the presumption [of

regularity” that attends executive action. See Reno v.

Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

489 (1999) (addressing prosecutorial discretion); see

generally Note, The Presumption of Regularity in

Judicial Review of the Executive Branch, 131 Harv. L.

Rev. 2431 (2018) (“When a plaintiff alleges that the

government skirted procedures or acted on illicit

motives, courts will sometimes ‘presume’ that ‘official

duties’ have been ‘properly discharged’ until the chal-

13

lenger presents ‘clear evidence to the contrary.’”)

(citations omitted).3

There is no good reason to deny Congress deference

in this case. In Mazars, “the challenged subpoena

seeks financial records totally unrelated to any of the

President’s official actions[.]” Pet. App. 27a. Likewise,

in Deutsche Bank, “the challenged subpoenas seek

financial records of the person who is the President,

[but] no documents are sought reflecting any actions

taken by Donald J. Trump acting in his official

capacity as President.” J.A. 230a. What’s more, no

party has argued that “the actual subpoenas at issue,

which request records in the hands of third parties,

‘impair’ the President “in the performance of [his]

constitutional duties.” Resp. Br. 61 (quoting Free Enter.

Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.

477, 500 (2010)). Thus, even if this deferential presumption might be inappropriate to resolve disputes

between coordinate branches of government where the

President “carries the mantle of the Office of the

President,” Pet. App. 27a, this is not such a case.

Here, the subject-matter of the investigations fit

neatly within Congress’s longstanding legislative

prerogatives over financial dealings, ethics, conflicts of

interest, national security, and the like, including as

such matters pertain to the Presidency. Not only are

these subjects on which “legislation may be had,”

Eastland, 421 U.S. at 506, but the committees have

reported or introduced several bills related to these

inquiries. See Resp. Br. 46. Thus, because the subject

3

“This Note examines the Supreme Court’s application of

the presumption of regularity to the executive branch, but the

presumption also applies to private actors and to judicial and

legislative actions.” Id. at 2432 n.9.

14

matter of these investigations evince a valid legislative purpose, the judicial task of determining whether

Congress and its committees have acted within their

constitutional domain should come to an end.4

CONCLUSION

The judgments of the courts of appeals should be

affirmed.

Respectfully submitted.

SARAH TURBERVILLE

PROJECT ON GOVERNMENT

OVERSIGHT

1100 G Street NW

Suite 500

Washington, DC 20005

202-347-1122

sturberville@pogo.org

ANDRE M. MURA

Counsel of Record

GIBBS LAW GROUP LLP

505 14th Street

Suite 1110

Oakland, CA 94612

(510) 350-9700

amm@classlawgroup.com

Counsel for Amici Curiae

March 4, 2020

4

To the extent Watkins suggests courts should then weigh

valid legislative purposes against private individual rights, such

balancing would not change the outcome here, because there is

no countervailing privacy interest in the financial records at

issue. See United States v. Miller, 425 U.S. 435, 440 (1976). Even

so, that balancing approach overreads Watkins and ignores Eastland, which clarified that balancing applies only in criminal

cases. 421 U.S. at 491 n.16.

APPENDIX

1a

APPENDIX

List of Amici Curiae—

Former Members of Congress

Michael Barnes

U.S. House of Representatives (D-MD), 1979-1987

Steve Bartlett

U.S. House of Representatives (R-TX), 1983-1993

William Clinger

U.S. House of Representatives (R-PA), 1979-1997

Thomas Coleman

U.S. House of Representatives (R-MO), 1977-1993

Mickey Edwards

U.S. House of Representatives (R-OK), 1977-1993

Martin Frost

U.S. House of Representatives (D-TX), 1979-2005

Wayne Gilchrest

U.S. House of Representatives (R-MD), 1991-2009

Gary Hart

U.S. Senate (D-CO), 1975-1987

James Leach

U.S. House of Representatives (R-IA), 1977-2007

Brad Miller

U.S. House of Representatives (D-NC), 2003-2013

George Miller

U.S. House of Representatives (D-CA), 1975-2015

Christopher Shays

U.S. House of Representatives (R-CT), 1987-2009

David Skaggs

U.S. House of Representatives (D-CO), 1987-1999

2a

Peter Smith

U.S. House of Representatives (R-VT), 1989-1991

Alan Steelman

U.S. House of Representatives (R-TX), 1973-1977

Henry Waxman

U.S. House of Representatives (D-CA), 1975-2015

Dick Zimmer

U.S. House of Representatives (R-NJ), 1991-1997