Constitution Daily

Smart conversation from the National Constitution Center

Sweeping power to investigate Trump’s finances upheld

May 21, 2019 by Lyle Denniston

 

Ruling that Congress has wide-ranging power to investigate President Donald J. Trump’s finances even without opening an impeachment probe, a federal judge in Washington, D.C., has ordered a private accounting firm to disclose eight years of his private business records to a Capitol Hill committee.

The 41-page decision on Monday by U.S. District Judge Amit P. Mehta rejected virtually every legal and constitutional argument that the President and his lawyers have been making in recent weeks in defying subpoenas issued by a series of investigating committees of the House of Representatives. If the ruling withstands an appeal that will now go forward, it could set a precedent affecting congressional inquiries well beyond the specific one at issue before Judge Mehta.

This opening round of what are expected to be several court cases growing out of the impasse between the White House and Democratic lawmakers is moving at unusual speed and could reach the Supreme Court in a matter of weeks. The two sides in the case before Judge Mehta had agreed that his ruling would be put on hold for seven days to allow an appeal, but the judge refused a request by Trump’s lawyers for a longer delay.

The President’s legal team is expected to ask a federal appeals court to block Monday’s ruling and then to overturn it. The stakes are so high, for both sides, that a final review by the Supreme Court seems almost inevitable.

Relying heavily on constitutional and legal history that stretched back to 1880, Judge Mehta bluntly remarked that he was “not prepared to roll back the tide of history.”

Summing up his basic conclusions, the opinion declared: “It is not the court’s role to decipher whether Congress’s true purpose in pursuing an investigation is to aid legislation or something more sinister such as exacting political retribution. ... Once a court finds that an investigation is one upon which legislation could be had, it must not entangle itself in judgments about the investigation’s scope or the evidence sought.”

Judge Mehta's ruling dealt specifically with a sweeping probe by the House Oversight Committee, which has the broadest investigative powers of any committee of the House. He found that its inquiry could lead to a series of legislative reforms ranging from tighter ethical rules for Presidents to strengthening the Constitution’s ban on presidential receipt of gifts or money from foreign governments.

Judge Mehta’s reasoning had particular significance because it could strengthen the strategy adopted by House Speaker Nancy Pelosi to forego – for the time being—an actual impeachment proceeding in favor of a series of public investigative hearings that could try to build public sentiment against the President leading up to the 2020 election. Some Democratic lawmakers have been pressing the Speaker to move ahead with impeachment, arguing – among other points – that this process would allow the House to demand more information from the President, his advisers, and his companies.

But Judge Mehta noted that, twice in the last half-century, “Congress has investigated a sitting President for alleged law violations, before initiating impeachment proceedings.” He referred to the Watergate investigation of President Richard Nixon and the Whitewater investigation of President Bill Clinton. In both situations, Congress investigated first, then turned later to impeachment.

“It is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate for unlawful conduct – past or present – even without formally opening an impeachment inquiry,” the judge’s opinion declared.

“Congress,” the judge remarked, “plainly views itself as having sweeping authority to investigate illegal conduct of a President.” And the scope of that power, as the judge found it to be under the Constitution and history, is wide-ranging, indeed.

The Washington judge was the first on the federal bench to rule on the three main arguments that the Trump legal team has been relying upon, both in resisting subpoenas in court and in refusing to supply documents and witnesses to investigating committees of the House.

Judge Mehta outlined those arguments, and then swiftly rejected each one: first, that the Oversight Committee in investigating private business affairs was using law enforcement power that does not belong to Congress but to the Executive Branch; second, that the probe was not tied to any legislative goal but was merely a move to expose for the sake or exposure; and, third, that the panel was only pursuing a roving inquiry into the President’s affairs without any new legislation in mind.

In turning aside the claim that the House committee was exceeding its powers by focusing its probe in part on Trump’s activities as a private citizen, the judge sought to diminish the significance of an 1880 Supreme Court decision, in the case of Kilbourn v. Thompson, on which the Trump team has relied heavily. In that ruling, the Court said that Congress lacked the general power to inquire into people’s private lives. But the judge said that, in the nearly 140 years since that decision, the courts have not found a congressional probe to be unconstitutional because it investigated a private citizen. Thus, the judge said, that precedent “is largely impotent as a guiding constitutional principle.”

Besides dismissing the main arguments of the Trump team, the judge said he would not even rule on an even broader constitutional claim that underlays the White House view that Congress could not draw up new legislation following up the current investigations. That argument, in short, is that new ethical or other restrictions on the President would amount to adding new qualifications to be President beyond those specified in the Constitution – that is, any requirements beyond age, citizenship, and U.S. residence.

To evaluate that claim, the judge said, he would have to guess at the constitutionality of specific new future legislative restrictions that Congress might pass, and that would be beyond the power of a court. Federal courts, he noted, are barred from giving “advisory opinions” on future issues that have not yet developed.

The judge’s order to turn over eight years of Trump business records – for all of the years 2011 through 2018 – is aimed primarily at one of the accounting firms holding those records, Mazars USA LLP. But the order also appears to apply to President Trump in his private business person and to several of his companies. The subpoena at issue only mandates the delivery of documents, not personal testimony of witnesses.

The House Oversight Committee’s subpoenas for those records grew out of congressional testimony by Michael Cohen, Trump’s former personal lawyer. Cohen handed over to the committee several documents, some prepared by Mazars, that Cohen said showed Trump had manipulated his records in order to get business loans or reduce his corporate and personal taxes.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.

 

Sign up for our email newsletter