Can Congress Investigate Whether The President Has Complied Amongst The Law?

Attention, first-year ConLaw students who haven't yet taken your concluding exams!:  You mightiness desire to consider how you'd respond that question.

No, really.  You're no dubiety wondering:  Is that a fox question?  Well, until today it would possess got been.  But straight off . . .

* * * *

The House Committee on Oversight as well as Reform lately asked Mazars USA LLP, i of Donald Trump's accountants, to render documents as well as data relating to the firm’s preparation, review, as well as auditing of fiscal statements for Trump as well as his concern entities.  Mazars told the Committee that it couldn't voluntarily render the requested documents without a subpoena, as well as thus on Apr 15th the Committee issued a subpoena to Mazars for the documents.

Trump sued Mazars as well as the Committee Chairman (who was shortly replaced equally a accused past times the Committee itself), seeking to tell the Committee from enforcing its subpoena to Mazars.

This example doesn't enhance whatsoever issues of executive privilege or immunity from legislative process.  Trump's claim is exclusively predicated, instead, on the declaration that Congress lacks whatsoever legitimate investigative authorization that could justify trying to obtain Trump's fiscal records from Mazars.

Influenza A virus subtype H5N1 duad of hours agone I attended a hearing that Judge Amit Mehta held on the merits of Trump v. House Committee on Oversight as well as Reform, No. 19-1136 (D.D.C.).  Judge Mehta began his questioning of Trump's lawyer, Will Consovoy, inward exactly the right place:  He asked, i past times one, whether Congress has the powerfulness to inquire into whatsoever or all of the 4 specific topics identified past times Chairman Elijah Cummings inward his memorandum to the Committee a calendar month ago, explaining the dry ground for the asking to Mazars.  Cummings wrote that:

The Committee has total authorization [1] to investigate whether the President may possess got engaged inward illegal acquit earlier as well as during his tenure inward office, [2] to decide whether he has undisclosed conflicts of involvement that may impair his powerfulness to brand impartial policy decisions, [3] to assess whether he is complying alongside the Emoluments Clauses of the Constitution, as well as [4] to review whether he has accurately reported his finances to the Office of Government Ethics as well as other federal entities.  The committee’s involvement inward these matters informs its review of multiple laws as well as legislative proposals nether our jurisdiction, as well as to propose otherwise is both inaccurate as well as reverse to the core mission of the commission to serve equally an independent depository fiscal establishment represent on the Executive Branch.

Judge Mehta started from the terminate of this litany:  Does Congress possess got authorization to inquire into whether a president "has accurately reported his finances to the Office of Government Ethics?," he asked.

No, said Consovoy.

What close to assess whether the President is violating the Emoluments Clauses of the Constitution?  After all, Judge Mehta noted, Article I, department nine specifically provides that an officeholder can't convey whatsoever present, Emolument, Office, or Title, of whatsoever variety whatever, from whatsoever King, Prince, or unusual State, "without the Consent of the Congress."

No go, said Consovoy, Congress can't inquire into the President's possible credence of whatsoever unusual emoluments, either.

OK, but what close trying to decide whether Trump has undisclosed conflicts of involvement that may impair his powerfulness to last impartial inward the acquit of his office?

Same answer.

(At this dot the buy the farm was cast:  Judge Mehta didn't larn closed to to asking specifically close Congress's authorization to investigate whether the President may possess got "engaged inward illegal acquit earlier as well as during his tenure inward office," because it wasn't difficult to approximate what Consovoy's response would possess got been.  Indeed, according to my notes Consovoy did say at i dot that Congress lacks whatsoever powerfulness to assess whether the President is violating the law!)

When it was his plow to argue, Counsel for the House Doug Letter explained why Chairman Cummings was right that "[t]he committee’s involvement inward these matters informs its review of multiple laws as well as legislative proposals nether our jurisdiction"--which ought to last enough, inward as well as of itself, to justify the subpoena.

But fifty-fifty apart from such "legislative" functions, Judge Mehta wondered, what close Congress's "informing function"--the powerfulness of Congress, which the Supreme Court has recognized, "to inquire into as well as publicize corruption, maladministration or inefficiency inward agencies of the Government"?   Watkins v. United States, 354 U.S. 178, 200 n.33 (1957).  After all, equally the Court noted inward Watkins, id., "[f]rom the earliest times inward its history, the Congress has assiduously performed an 'informing function' of this nature."

Consovoy conceded, equally he had to inward lite of Watkins, that Congress has the powerfulness to inquire into as well as publicize corruption, maladministration or inefficiency inward agencies--which are, Consovoy explained, entities created past times Congress itself.  However, Consovoy hastened to add, Congress does not enjoy a like powerfulness to inquire into as well as publicize corruption, maladministration or inefficiency by the President.

Wait . . . WHAT?  Congress lacks authorization to investigate as well as publicize possible wrongdoing--corruption or maladministration--by the President?  Did I remove heed that right?  But cf. Nixon v. Administrator of General Services, 433 U.S, 425, 452-53 (1977) (explaining that Congress enacted a police push clitoris requiring preservation of a president's records as well as tapes inward club to, inter alia, secure "the American people's powerfulness to reconstruct as well as come upwards to price alongside their history").

Apparently I did, because Judge Mehta, too, was incredulous.  He asked Consovoy the obvious follow-up question:  Does this hateful that Congress's investigations into Watergate as well as Whitewater [and, I mightiness add, Iran/Contra; etc.] were unconstitutional?   Consovoy responded (if my notes are correct) that that would depend upon the dry ground for those investigations.  It was "straightforward," said Judge Mehta:  Congress was inquiring into possible violations of the police push clitoris past times the President.  In that case, Consovoy said, as well as thus yes, peradventure Congress did overstep its authority.  [That's my recollection of the kernel of Consovoy's responses--not direct quotations.  If anyone who attended has a dissimilar account, delight permit me know.  Of course of study when the transcript becomes available I'll insert direct quotations.]

"Bold," "radical" as well as "unprecedented" don't laid out to push clitoris this business of argument.  I'm non certain what does.  Flabbergasting, I suppose.

I assume Consovoy--a really fine as well as accomplished advocate--will offering a less astounding, less categorical, respond to such questions when he side past times side has an chance to brief them.  But for straight off . . . wow.

* * * *

I should add together that Consovoy has an choice argument, too, i he tried to emphasize at every chance during the declaration today--namely, that the congressional objectives articulated inward Chairman Cummings's missive of the alphabet are non the actual reasons for the subpoena, as well as that the Committee is, instead, trying to "expose for the sake of exposure,” something that's non inside Congress's authority, at to the lowest degree non when the exposure is of purely personal matters unrelated to the functioning of a populace official's functions.  Watkins, 354 U.S. at 200.  Although "[t]he populace is, of entitled to last informed concerning the workings of its government," that "cannot last inflated into a full general powerfulness to expose where the predominant effect tin only last an invasion of the private rights of individuals."  Id.  The problems alongside that argument, however, are non only that Congress evidently does possess got the legitimate as well as of import objectives that the Chairman articulated, but also that courts are to a greater extent than oftentimes than non loath to await behind the reasons offered past times a congressional committee.  See, e.g., id. (“[A] solution to our occupation is non to last works life inward testing the motives of commission members for this purpose. Such is non our function.”).

As Judge Mehta's colloquy alongside Letter indicated, the example also raises questions close whether the detail subpoena at number hither is reasonably tailored to the Committee's legitimate inquiries, as well as whether the reach of the inquiries exceeds the Committee's jurisdiction.  I don't know remotely plenty close the facts of the example as well as the Committee's jurisdiction to offering whatsoever informed views on those questions.

[UPDATE:  Charlie Savage's account of the hearing is, equally usual, spot-on.]