A Primer on Arguments Before the Second Circuit Over Congressional Subpoenas of Trump Records
On Aug. 23, the U.S. Court of Appeals for the Second Circuit will hear arguments on President Donald Trump's challenge to a congressional subpoena that demands his records from two financial institutions. Before the district court, Trump did not fare well. The difficulty of his position arises from the breadth of congressional power.
August 20, 2019 at 11:36 AM
5 minute read
The original version of this story was published on National Law Journal
On Aug. 23, the U.S. Court of Appeals for the Second Circuit will hear arguments on President Donald Trump's challenge to a congressional subpoena that demands his records from two financial institutions. Before the district court, Trump did not fare well. The difficulty of his position arises from the breadth of congressional power. A congressional subpoena is valid if it relates to a topic on which "legislation could be had" or on which a committee has oversight. Almost any topic is susceptible to legislation or oversight. Thus, Trump has lost and will likely continue to do so.
The Trump Organization's Arguments
This year, Congress has issued multiple subpoenas to entities that provide financial services to Trump or the Trump Organization. On April 15, the House Committee on Financial Services subpoenaed Deutsche Bank and Capital One for financial and account. On that same day, the House Committee on Oversight and Reform issued a subpoena to Mazars USA LLP, the president's accountant, seeking audited financial statements and related documents.
In response, Trump filed two suits in federal district courts, one in New York and another in Washington, D.C., to block the financial institutions from complying. Each suit argues that the subpoenas: (1) exceed Congress' authority; (2) usurp executive and judicial functions; and (3) inquire into a citizen's private affairs.
Each of these defenses faces considerable difficulty, and both district courts have rejected them. As one court put it, no court has "interfered with a congressional subpoena [on these bases] in nearly 140 years." Trump hopes he will fare better in appeals to the Second and D.C. Circuits.
Outside of Congressional Authority
Trump first challenges the subpoenas on the grounds that they exceed the issuing committees' authority. But this is unlikely to be fruitful ground.
The Constitution grants the House and the Senate the power to determine their internal rules. Those rules delegate different parts of each chamber's jurisdiction and functions to its separate committees. Any subpoena issued by a particular committee must fall within its delegated jurisdiction. If a subpoena covers topics that fall outside the committee's delegation, then the recipient may have a basis for challenging it. And the rules contain some surprises.
But ultimately, the House and Senate rules delegate broad jurisdiction to almost every committee. For example, the House Committee on Financial Services has jurisdiction over "banks and banking" as well as "insurance generally." The House Committee on Oversight and Government Reform has particularly broad jurisdiction. In addition to a delegation covering vast subject areas (e.g., "Government management"), it can investigate "any other matter" delegated to another committee. Two committees' jurisdictions can also overlap, even if they are within the same legislative chamber.
Congress' past investigations demonstrate the breadth of its jurisdiction. In 2005, Congress investigated the use of steroids in baseball, citing its authority to regulate drugs. In 1954, the Senate demanded testimony on whether comic books were corrupting American youth. No legislation resulted from either hearing, but a number of non-government entities and private citizens were subpoenaed to produce documents and provide testimony.
Usurping Executive and Judicial Functions
Trump also argues that the subpoenas invade the province of the executive and judicial branches. Only the executive branch has the authority to enforce the criminal laws, and only the judiciary can hold criminal trials. Trump argues that Congress, through these subpoenas, usurps the powers of coordinate branches by attempting to investigate and adjudicate potential violations of criminal laws.
Once again, however, the president's argument is not likely to succeed. Courts have long held that criminal and legislative investigations can overlap. And experience has shown that the same subject can relate to violations of criminal law and potential legislation or congressional oversight. Most famously, the Senate investigated the Watergate scandal as part of its oversight function, even though that scandal resulted in multiple criminal convictions.
Only where a congressional committee's usurpation of another branch's function is "obvious" will a court intervene. But usurpation is not "obvious" unless Congress lacks a legitimate investigatory purpose. The breadth of Congress' investigatory power thus means that findings of usurpation will be rare.
Inquiring Into Citizens' Private Affairs
Finally, Trump accuses the congressional committees of improperly investigating the affairs of a private citizen. While Congress does not possess "the general power of making inquiry into the private affairs of [a] citizen," the Supreme Court has held that this limitation applies only when private affairs are unrelated to a valid legislative purpose.
Thus, the president's arguments once again run up against the breadth of Congress' power to investigate for a valid purpose. Many, if not most, federal laws regulate citizens' private interactions—therefore, there is likely to be a valid legislative purpose of some sort relating to the information sought. And the mere fact that the information sought is private doesn't matter. Subpoenas are available for the specific purpose of obtaining information that would otherwise remain private.
Each of Trump's defenses runs headlong into the breadth of congressional power. For that reason, two district courts have already rejected them. Trump hopes he will fare better before the Second Circuit, but long-standing Supreme Court precedent renders that unlikely.
Justin Shur, Caleb Hayes-Deats & Allison Gorsuch are attorneys at MoloLamken. Their practice focuses on white-collar investigations, appeals and complex civil litigation.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllFTC's New 'Click To Cancel' Rule Is Here, But Will It Survive Judicial Challenge?
9 minute readDapper Labs $4M Settlement, $1.3M in Attorney Fees Reveal NFT Settlement Trend
4 minute readEx-Moody's GC Gets 8 Months in Prison for Not Filing Tax Returns on $54M in Income
Trending Stories
- 1Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
- 2Abbott, Mead Johnson Win Defense Verdict Over Preemie Infant Formula
- 3Guarantees Are Back, Whether Law Firms Want to Talk About Them or Not
- 4Trump Files $10B Suit Against CBS in Amarillo Federal Court
- 5Preparing Your Law Firm for 2025: Smart Ways to Embrace AI & Other Technologies
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250