Two federal courts uphold Legislative oversight of the Executive Branch...
By Ernest A. Canning on 5/27/2019, 2:37pm PT  

The federal courts, so far anyway, are holding up well amidst the Constitutional Crisis foisted upon the nation with President Donald Trump's attempts to stymie all Congressional oversight of the Executive Branch and the potentially criminal record of its chief occupant. The Judicial Branch firewall, at least according to one renowned Constitutional law expert --- and at least on the matter of the Congressional subpoenas --- should hold up all the way to even the otherwise very divided U.S. Supreme Court.

On May 20, just seven days after hearing oral arguments, United States D.C. District Court Judge Amit P. Mehta issued an erudite 41-page decision [PDF] in which he ordered Donald Trump's accounting firm, Mazars USA, to comply with a subpoena issued by the House Oversight Committee. Both the subpoena and subsequent court order directs Mazars to provide financial records from Trump and several affiliated entities to the panel. Judge Mehta also denied Trump's request to stay the order pending appeal, reasoning that the President had failed to either cite "potentially persuasive authority" or "present serious legal questions" to overcome nearly 140 years of Supreme Court case law establishing the right of Congress to obtain the requested records as part of its broad investigative authority.

Judge Mehta's rationale was so compelling --- and the "legal" arguments advanced on behalf of the President so specious --- that, when Harvard Law Professor Laurence Tribe, a preeminent constitutional expert appeared on MSNBC's The Last Word with Lawrence O'Donnell following the ruling, he predicted the President's appeal would not only be swiftly denied by the United States D.C. Circuit Court of Appeal, but that the Supreme Court would either deny the President's request that it hear the case or swiftly affirm the District Court decision. Tribe described the law in this realm as a "slam dunk" and said he'd "expect all nine Justices...would follow the law."

It took only one day for Tribe's sentiment to be echoed elsewhere. Citing Mehta's decision, Judge Edgardo Ramos at the U.S. District Court in the Southern District of New York, issued a bench ruling immediately after oral arguments in a separate, if related case. Ramos directed Deutsche Bank and Capital One to comply with a Congressional subpoena to turn over the President's bank records. That subpoena, according to The New York Times, seeks "to elicit information on potential money laundering and bank fraud." Like Mehta, Judge Ramos refused to issue a stay pending appeal...

Congressional investigative authority

The scope of Congressional investigative authority (also known as its "informing function") is exceptionally broad. As Judge Mehta observed, quoting the Supreme Court's 1957 decision in Watkins v. United States, Congress has the power "to inquire into and publicize corruption, maladministration or inefficiencies in the agencies of Government." Congressional investigative authority, Mehta added --- citing the Supreme Court's 1953 United States v. Rumely decision to reject Trump's specious argument that he is not an "agency" --- involves the "power of shining light on 'every affair of government'," which, of course, includes those of the President.

In both Rumely and Watkins, the Court relied upon a scholarly article produced by President Woodrow Wilson, which explained the need for an expansive Congressional investigative authority:

Unless Congress have and use every means of acquainting itself with the acts…of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sifts them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.

The Congressional power of inquiry extends to any matters that fall within its constitutional functions, to wit: to legislate, to appropriate, to approve or disapprove a President's receipt of Emoluments, and to Impeach.

The power of inquiry is not unlimited. Congress cannot seek information of a personal nature that has no relationship to its constitutional functions. However, as the Supreme Court recognized in its 1975 decision, Eastland v. United States, "So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power."

While Congress cannot intrude upon the Executive or Judicial functions in the enforcement of criminal laws, the mere fact that information revealed by a Congressional investigation could lead to criminal prosecutions does not negate the right of Congressional inquiry into corruption where that inquiry is in aid of its constitutional functions.

Application to Trump's financial records

In an April 12, 2019 memo, Rep. Elijah Cummings (D-MD), the Chairman of the House Oversight Committee, listed four areas of its investigation: (1) "whether the President may have engaged in illegal conduct before or during his tenure in office," (2) "whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions" (3) "whether he is complying with the Emoluments Clauses of the Constitution," and (4) "whether he has accurately reported his finances to the Office of Government Ethics."

In his opinion, citing previous instances in which similar inquiries have led to passage of legislation, such as passage of the Ethics in Government Act of 1978 in the aftermath of Watergate, Judge Mehta concluded that all four areas of inquiry could potentially lead to new legislation --- a conclusion that, in and of itself, should be dispositive. He also cited the scope of Congressional inquiry relating to both the Impeachment and Emoluments Clauses. "Surely," he concluded, "incident to Congress's authority to consent to the President's receipt of Emoluments is the power to investigate the President's compliance with the Clause. Without such power," Mehta added, "Congress's constitutional function to approve or disapprove Emoluments would be severely and unduly restrained."

That same rationale, in the court's view, applied to investigating the President's conflicts-of-interest which have been and remain the subject of valid legislation.

Last January The BRAD BLOG argued that there was, even then, a need for Congress to immediately initiate a formal impeachment inquiry --- a view now shared by Tribe.

Although the House has yet to initiate a formal impeachment inquiry, that does not prevent Congress from exercising its "informing function" with respect to information that could lead to impeachment.

As justification for the House Oversight Committee-issued subpoena, Judge Mehta cited the Constitution's Impeachment Clause and historical precedents --- the Senate Watergate (Nixon) and House Whitewater (Bill Clinton) hearings --- in addition to the need for information by lawmakers to perform other legislative functions...

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 him for unlawful conduct --- past or present --- even without formally opening an impeachment inquiry.

In other words, Congress has a right to the records it seeks in these two cases, not only because the information can lead to the adoption of new legislation but because they directly relate to the express authorities granted to Congress under the Emoluments and Impeachment Clauses of the U.S. Constitution. This is and has been the law established via at least 140 years of Supreme Court decisions.

Professor Tribe has correctly identified this as a "slam dunk" legal issue and that, on this issue --- as opposed to issues like abortion --- the President cannot win. He can delay matters, but not for long, given long-established precedent for courts to expedite challenges to Congressional inquiries.

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Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing