Monday, April 29, 2019

Congressman Cummings Should Rely on Impeachment and Emoluments Supervision to Justify the Trump Accounting Firm Subpoena

by Michael C. Dorf

On Thursday, I discussed the use of the pejorative "Democrat Party" in a complaint filed by lawyers working for Donald Trump (in his personal capacity) and various Trump companies. I worried that the practice has spread from the frothing right to what now passes for the mainstream right. My worry was well-founded. That very day, Deputy Attorney General Rod Rosenstein displayed his partisanship by using "Democrat" as an adjective--ironically enough in a phrase that purported to disavow partisanship ("There is not Republican justice and Democrat justice. There is only justice and injustice.") It's possible that Rosenstein did not realize that he was using a slur, but if so, that only shows that he moves in such highly partisan Republican circles that he routinely hears the slur rather than the proper name of the Democratic Party.

For now, I want to double back to a question I bracketed last week: the merits of Trump's lawyers' complaint. In a nutshell, their argument goes like this: (1) The challenged subpoena seeks information regarding Trump's pre-presidential conduct that might or might not bear on whether he or others committed crimes but does not bear on any pending or possible future legislation; (2) "investigations are legitimate only insofar as they further some legitimate legislative purpose"; and therefore (3) the subpoena should be quashed because to enforce it would permit Congress "to exercise powers that the Constitution assigns to the executive or judicial branch."

Here I want to focus on point (2).

To cut to the chase, proposition (2) is flatly wrong. Congress has expressly enumerated powers and duties beyond legislation. For example, the Senate must provide its advice and consent on judicial and executive nominations, which entails investigating nominees' backgrounds and records. True, the subpoena under discussion now came from the House, not the Senate, but to note the obvious elephant in the room, the House has "the sole Power of Impeachment." Accordingly, its investigations are necessarily legitimate without any legislative purpose if they bear on impeachment or some other power. To give another example, suppose it is alleged that someone elected to the House is only 24 years old. Undoubtedly, the House, pursuant to its power to judge the qualifications of its members, could investigate the person's age, even though no legislation could result.

So why does the complaint say otherwise? It relies on language in various SCOTUS opinions, but it mischaracterizes the relevant authority.

Let's start with Watkins v. US (1957), which reversed the misdemeanor conviction of someone charged with violating a federal statute forbidding the refusal "to answer any question pertinent to the question under inquiry" in a congressional hearing. Trump's lawyers quote the following language from the case: an investigation, the complaint says "is justified solely as an adjunct to the legislative process."

That looks pretty supportive, right? Well, no, not when read in context. Watkins raised, among other things, a free speech defense to the criminal charge. The Court began by recognizing that the text of the First Amendment forbids infringements of speech that occur as a result of a "law" passed by Congress. Nonetheless, the Court took an expansive view of the First Amendment as encompassing not just laws passed by Congress but hearings held in the course of deciding on what laws to pass. The language from Watkins quoted in the complaint was a bit sloppy, but it clearly was not intended to state some general limit on the scope of congressional investigative powers.

We know that from the fact that elsewhere in the opinion, where the Watkins Court does make a point about separation of powers, it is careful to frame the issue this way: "No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress" (emphasis added). Congress's legitimate tasks include conducting investigations relevant to impeachment and other matters, not just those relevant to potential legislation.

So much for Watkins. The complaint also quotes the following language from Eastland v. US Servicemen's Fund (1975): "Congress is not invested with a general power to inquire into private affairs. The subject of any inquiry always must be one on which legislation could be had." Powerful stuff, no?

Again, no. Eastland was another free speech challenge to a subpoena, but there are three crucial points for present purposes: first, emphasizing the breadth of congressional investigatory power, the Court said that the challenged subpoena fell within its legislative authority and thus had no occasion to consider whether it might be justified by some other power of Congress; second, when it came to characterizing the general rule, the Eastland Court quoted the broader (and more accurate) test from Watkins, namely, whether an investigation "is related to and in furtherance of a legitimate task of Congress"; and third, the quoted language from Eastland is not originally from Eastland but in turn quotes an earlier case, McGrain v. Daugherty (1927).

But McGrain doesn't support the complaint's point either. There the Court upheld a Senate committee's subpoena power on the ground that it was sufficiently related to legislation. The Court said that "the subject was one on which legislation could be had" in order to validate subpoena power broadly connected to potential legislation, not to state some rule that Congress cannot conduct an investigation in connection with some other power of Congress. Indeed, if anything, McGrain is authority for the proposition that committees and houses of Congress have broad implied powers of investigation in connection with the various powers of Congress, including but not limited to potential legislation.

I could go on, but there's no reason to. Based on the constitutional text alone, it is blindingly obvious that Congress can investigate matters that are reasonably related to any of its functions, not just those related to potential legislation. The Trump complaint is simply a cut-and-paste job that takes the Supreme Court's statements out of context.

In my blog post on Thursday, I noted that the law firm that filed the complaint to block the subpoena consists of well credentialed lawyers. That raises the question why these lawyers opted for political rhetoric and misleading quotations of cases rather than a good argument. The best answer is probably that there is no good argument available.

Suppose you are a lawyer for the House Oversight and Reform Committee. How will you respond to the complaint? You could try to respond even on the complaint's own terms by pointing to the breadth of congressional power and suggesting that the House is considering bills (like this one and this one) that would require presidential candidates and presidents to release their tax returns to the public. The finances of a president who hasn't released his tax returns would be broadly relevant to such potential legislation.

But to the extent that the subpoena at issue here could be thought to go beyond any pending or soon-to-be-considered legislation, you might also want to invoke the possibility of impeachment. The complaint notes that Michael Cohen testified to Congress that Trump had misrepresented his finances in the past. That in itself does not seem relevant to impeachment, because even if criminal under NY and/or federal law, it was private conduct, not an abuse of public power. However, understanding Trump's finances is relevant to an impeachment inquiry that aims to uncover foreign influence from Russians, Saudis, and others who may be taking advantage of Trump's financial situation--a possibility raised by Trump's pursuit of a real estate deal in Moscow well into his candidacy for president.

Would Representative Cummings and House majority counsel put in their answer to the complaint that the material sought is relevant to an impeachment inquiry? They might worry that doing so too publicly commits the House to impeachment, thus contradicting Democratic House leadership on this point. My own view is that this is a risk worth taking, because it is possible to put in the answer that this is only a preliminary step, but I could see how House leadership might want to avoid even that small step.

Accordingly, I have a suggestion for the House Democrats: Invoke the Emoluments Clause. In filings on behalf of Trump in the Emoluments Clause litigation, the Justice Department has argued that courts should not find violations on the ground that whether Trump's running of his hotels and other businesses leads to violations is a nonjusticiable political question committed to Congress. For example, in a brief filed with the federal district court in Maryland in September 2017, the Trump Justice Department said this: "If Congress disagrees with the President (or any other public official) regarding the applicability of the Foreign Emoluments Clause in individual cases, it has ample means for pressing its view." It necessarily follows that Congress must therefore have ample means for investigating whether the president is or was violating the Emoluments Clause(s), which in turn means Congress should be able to look into the financial record keeping and related practices of the companies that could be used to violate them.

To be clear, I disagree with the contention that the Emoluments Clauses are non-justiciable, but whatever one concludes about whether courts can evaluate claimed violations in the first instance, Congress undoubtedly has power to enforce the Clauses. And given the Trump administration's representations to that exact effect in court, it should now be estopped from denying congressional power to investigate along these lines.