One of Donald Trump’s most controversial judicial nominees unleashed a bizarre and embarrassing dissent on Friday that seeks to shield the president from congressional oversight while flouting Supreme Court precedent.
The author of Friday’s dissent, Neomi Rao, was Trump’s choice to fill Brett Kavanaugh’s old seat on the U.S. Court of Appeals for the District of Columbia Circuit. Her opinion marks a lawless effort to insert the judiciary into the House of Representatives’ investigations into Trump, limiting lawmakers’ ability to access potentially incriminating evidence. It also implies that federal courts could stop the House from impeaching Trump. In short, Rao is running interference for the president who put her on the bench.
Trump v. Mazars, Friday’s decision, revolves around the House Oversight Committee’s subpoena of Trump’s financial records at Mazars, his former accounting firm. The committee provided four reasons for the subpoena: It wished to determine whether Trump accurately reported his finances, has maintained conflicts of interest in office, illegally accepted payments from foreign governments, or committed crimes. The Supreme Court has repeatedly affirmed that Congress’ constitutional authority permits it to conduct investigations so long as they’re related to a “valid legislative purpose.” Again, here, the committee provided several such purposes: It sought to learn whether the House should pass stricter ethics reforms or demand the disclosure of foreign payments to the president that might violate the Constitution’s foreign emoluments clause. Trump intervened to attempt to shoot down the subpoena, and the Justice Department backed him up.
By a 2–1 vote, the D.C. Circuit found that the subpoena must be enforced because it furthered a “valid legislative purpose.” Writing for the majority, Judge David Tatel noted that the Office of Government Ethics has “identified an error in one of the several reports that President Trump had filed since he became a presidential candidate in 2015.” His former attorney, Michael Cohen, later testified before Congress that Trump manipulated his finances, inflating or deflating assets “when it served his purposes.” The House has already passed H.R. 1, a sweeping ethics bill that would implicate the issues in question. But the Cohen incident, among others, led lawmakers to speculate that more reforms—like more exacting disclosure rules for presidents and presidential candidates—may be necessary. As Tatel wrote, “Information revealed by the subpoena could inform the Senate as it considers the bill, as well as any subsequent conference committee or the House itself, should it reconsider the bill post-conference.”
On a similar note, a series of lawsuits have alleged that Trump has accepted money from foreign governments while in office. But the Constitution bars the president from accepting such “emoluments” without congressional approval. The committee stated that, through its Mazars subpoena, it sought to discover whether the House should force Trump to reveal unauthorized emoluments. And as Tatel explained, “surely a statute facilitating the disclosure of such payments lies within constitutional limits.” Because the Mazars subpoena is obviously related to these “valid legislative purposes,” Tatel concluded, it passes constitutional muster.
The Trump administration will likely now appeal to the Supreme Court. If the court grants an emergency order blocking the subpoena, this case could easily drag into 2021. Rao’s dissent seemed designed, in part, to persuade the conservative justices to reverse her colleagues in the majority and keep the subpoena frozen.
Her dissent, however, is utterly detached from Supreme Court precedent and instead rooted in a startling and novel conception of presidential power. It rests on the assertion that “allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment.” According to Rao, impeachment “provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials.” If the House attempts to probe the president’s alleged wrongdoing on any basis other than impeachment, he is insulated from its demands.
This claim is bizarre, shocking, and just plain wrong. There is no Supreme Court precedent to back it up, so Rao resorted to the “text, structure, and original meaning” of the Constitution. But as Tatel pointed out, Rao’s theory clashes with the Framers’ expansive vision of legislative power, which included the ability to gather relevant facts. Under Rao’s view, Tatel wrote, “Congress must either initiate the grave and weighty process of impeachment or forgo any investigation in support of potential legislation.” So lawmakers would have to enact legislation “uninformed and with its oversight function informationally crippled.” Tatel continued:
This would mean that, at times when oversight and legislation are most urgent, such as to prevent executive branch overreach or to keep officials’ behavior within ethical boundaries going forward, Congress would be legislatively hamstrung unless it were to pull the impeachment trigger. And if Congress chooses not to pursue impeachment, or if impeachment is unavailable because Congress believes the alleged misconduct falls short of a high crime or misdemeanor, then there can be no investigation of—and thus no viable legislative check on—the President at all. A proposition that so strips Congress of its power to legislate would enforce only the Executive’s arrogation of power, not the separation of powers.
But there is another, even more disturbing aspect of Rao’s dissent. She wrote, ominously, that “it is unnecessary here to determine the scope of impeachable offenses.” Unnecessary here? It isn’t just unnecessary—it’s impermissible, because the federal judiciary has no constitutional authority to determine “the scope of impeachable offenses.” The Supreme Court has ruled that the Constitution assigns the power of impeachment to the House exclusively, denying the judiciary the ability to meddle in impeachment proceedings. Rao seemed to reject that precedent, instead suggesting that courts can “determine the scope of impeachable offenses” and, by extension, quash an impeachment on the grounds that the charges are not “high crimes and misdemeanors.”
Rao’s claim would allow the judiciary not only to scrap articles of impeachment, but to hobble all House investigations of the president. Remember, under her topsy-turvy analysis, the House can only scrutinize the president if it invokes the power of impeachment. But the courts cannot honor that invocation unless the charges fall within “the scope of impeachable offenses.” Courts could therefore review the House’s allegations, conclude that they are not “impeachable offenses,” and effectively shut down the House’s probe.
This outlandish result is not compelled by the Constitution or Supreme Court precedent. The House may have multiple reasons for investigating Trump, but several are obviously linked to potential legislation. It did not need to launch an impeachment inquiry to justify its Mazars subpoena. But, of course, the House has launched an impeachment inquiry since this case began. So Rao’s dissent is irrelevant on arrival, an attempt to force the House’s hand several weeks too late. But it may still be useful as a political screed that confirms Rao’s loyalty to the president. Trump stood by her as Democrats disparaged her nomination. Now, in Trump’s time of need, she came through for him.