As House Democrats remain divided over the wisdom of impeachment, Donald Trump’s lawyers have seized on their inaction to fight a subpoena seeking the president’s financial records. Their latest brief argues that, until the House officially puts impeachment on the table, the House Oversight Committee has no authority to subpoena this information. Trump’s lawyers are, in effect, daring the House to launch an impeachment inquiry—and betting that Speaker Nancy Pelosi will refuse to do it.
House Democrats have spent months asserting their authority to investigate the president, with relatively little to show for it. The House Oversight Committee issued a subpoena to Mazars USA, Trump’s former accounting firm, in April, requesting eight years of his financial records. Trump quickly intervened, asking U.S. District Judge Amit Mehta to invalidate the subpoena on the grounds that it falls outside Congress’ constitutional powers.
Mehta refused, citing a string of Supreme Court decisions that confirm the House’s authority to scrutinize the president. SCOTUS has long held that the “power to secure needed information” through subpoenas is “an attribute of the power to legislate.” Congress may also “inquire into and publicize corruption” and “maladministration” in government. Thus, courts cannot interfere with congressional subpoenas so long as they have some “legitimate legislative purpose.” Nor can courts demand that Congress provide some concrete link between a subpoena and future legislation, or search for a secret illicit motive among committee members. If the committee provides a legitimate reason for its subpoena, the courts must honor it.
The House Oversight Committee declared that it sought Trump’s records to determine whether he “accurately reported his finances to the Office of Government Ethics” so it could decide “whether reforms are necessary to address deficiencies with current laws, rules, and regulations.” Because that goal clearly “falls within the legislative sphere,” Mehta ruled, he was obligated to treat the subpoena as valid. The committee also cited Congress’ duty to ensure that the president complies with the Constitution’s foreign emoluments clause, which Mehta found to be a legitimate reason for examining Trump’s finances.
The committee provided yet another justification for the Mazars subpoena, explaining that it wanted to learn “whether the President may have engaged in illegal conduct before and during his tenure in office.” This goal, too, Mehta wrote, is plainly legitimate, since the Constitution grants the House the sole power of impeachment. True, the House has not yet formally invoked this authority. But it “is simply not fathomable,” Mehta concluded, “that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.”
In their appeal to the U.S. Court of Appeals for the District of Columbia Circuit, Trump’s attorneys contested nearly every point in Mehta’s ruling. But they directed extra ire toward Mehta’s assertion that the House’s impeachment power could justify the Mazars subpoena in the absence of a formal impeachment inquiry. “While Congress could presumably use subpoenas to advance [its impeachment] powers,” the brief states, “the Committee has not invoked them.” Instead, Mehta himself invoked this power “as a justification for the subpoena,” reasoning that it allows the House to investigate “a sitting President for alleged law violations before initiating impeachment proceedings.” (In fact, the judge noted, Congress has done exactly that “twice in the last 50 years.”)
This claim spurred Trump’s attorneys to indignant outrage. What is “truly ‘not fathomable,’ ” they wrote, “is that an Article III court … would itself invoke the specter of impeachment,” which “entails massive costs to our nation’s economy, national security, diplomacy, and political health.” Mehta “overstepped [his] institutional role by raising arguments the Committee never made.” And the committee never made this argument, Trump’s lawyers declared, because the House simply isn’t contemplating impeachment. They went on:
Speaker Pelosi has steadfastly denied that the House’s investigations are in any way related to impeachment. In March, she unequivocally told the Washington Post, “I’m not for impeachment.” In late May, the Speaker reiterated that “any suggestion that Democrats are planning to pursue impeachment ‘simply isn’t the truth.’” After she received the district court’s ruling in this case, the Speaker boasted that the Committee had prevailed despite “the fact the House Democratic caucus is not on a path to impeachment.” Just four days ago, the Speaker again told senior Democratic leaders that “she isn’t open to the idea” of impeachment, and Chairman Cummings “sided with Pelosi.”
In other words, according to Trump’s lawyers, Pelosi’s refusal to launch an impeachment inquiry curbs the House’s ability to investigate the president. And until the House formally pursues impeachment, it will have no power to obtain Trump’s financial records.
This argument is unlikely to win support from the D.C. Circuit in this case, but it could be more successful in others. Judges David Tatel, Patricia Millett, and Neomi Rao will hear the appeal in July, and though Rao is a Trump nominee, Tatel and Millett are progressive stalwarts. Trump’s lawyers will presumably raise the same argument in the 2nd U.S. Circuit Court of Appeals, where they are fighting different House subpoenas seeking to compel Deutsche Bank and Capitol One to provide information regarding the Trumps and their businesses. We don’t yet know which judges will hear the 2nd Circuit appeal.
Either way, this issue may be destined to wind up at the Supreme Court, which could block the subpoenas if the lower courts won’t do so.
While Mehta is correct that nothing in the Constitution requires a formal impeachment inquiry to precede an investigation of presidential malfeasance, the claim might hold some specious appeal for Chief Justice John Roberts and the court’s conservatives. It is premised on the notion that a president himself has a constitutional duty to execute the laws, one that Congress may not impede without invoking its own discrete powers. Trump’s attorneys insist that Democrats are asking the courts to do Congress’ job by enforcing the subpoena, and that the courts should decline out of respect for their “institutional role.” It is easy to imagine Roberts agreeing that although the House can investigate the president, it must do so through an official impeachment inquiry. Put differently, Roberts could rule that the House must invoke its impeachment power before relying on it to enforce a subpoena.
There are other arguments in the brief that target the Supreme Court—particularly its bizarre appeal to the justices’ self-interest. If Congress can subpoena the president’s accounting records, the brief notes, it could also subpoena “the Justices’ accounting records—even for many years before they joined the Court.” As ThinkProgress’ Ian Millhiser has pointed out, Congress absolutely has the authority to obtain sitting justices’ financial information if they are suspected of wrongdoing; after all, the House has the authority to impeach them too. This entire theory appears designed to scare the justices into hampering Congress to protect themselves; it’s probably too nakedly corrupt, though, to find favor with Roberts.
Similarly, Roberts will have a steep hill to climb if he wants to rule that the House’s investigation has no legitimate legislative purpose. While the court’s conservatives have bent over backward to find some glimmer of legitimacy in Trump’s executive actions, this case is different. An unbroken line of SCOTUS precedents supports the House’s power to investigate, giving courts little room to second-guess lawmakers’ subpoenas. House Democrats shouldn’t be terrified of losing at SCOTUS given the strength of their case. They should, however, decline to give justices a single half-plausible reason to rule against them.
The impeachment rejoinder raised by Trump’s lawyers, then, should not be dismissed out of hand. It would let the conservative justices protect Trump while claiming mere fidelity to separation of powers. And Pelosi could neutralize it in an instant by launching a bona fide impeachment inquiry, undercutting the legal basis for Trump’s resistance to the Mazars subpoena. The probe need not lead ineluctably to an impeachment vote; it need merely clarify that the House is actually mulling impeachment, which it should already be doing anyway. Pelosi is running out of reasons not to use the I-word. And Trump’s lawyers are so confident in her resistance to impeachment that they’re exploiting her words to shield Trump’s finances from congressional scrutiny.