Key Issues

Since 2016, the federal courts have issued opinions addressing a number of key issues affecting Congress’ oversight authority.  Some of those cases have concluded; others are subject to ongoing proceedings.  Here is an overview of the key issues addressed to date in those court opinions, copies of which can be found in the Case Pages provided on this website.

“The Supreme Court has said that a ‘high degree of deference should be accorded to actions taken solely by Congress,’” and courts should “‘tread warily’” whenever “‘constitutional limits upon the investigative power of Congress have to be drawn.’”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 18, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“The Supreme Court has stated that there is a ‘presumption’ that the stated legislative purposes are the ‘real object’ of the Committees’ investigation.

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 76, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“To start, the court must proceed from the assumption ‘that the action of the legislative body was with a legitimate object, if it is capable of being so construed, and [the court] ha[s] no right to assume that the contrary was intended.’ … It also ‘must presume that the committees of Congress will exercise their powers responsibly and with due regard for the rights of affected parties.’”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 18 (quoting Supreme Court and D.C. Circuit), 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“[C]ourts must presume Congress is acting in furtherance of its constitutional duties and defer to congressional judgments about what it needs to carry out that purpose. … When a court is asked to decide whether Congress has used its investigative power improperly, its analysis must be highly deferential to the legislative branch.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 3, 18, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“[A]s a committee of Congress, the Judiciary Committee has the ‘broad power’ under Article I of the Constitution to conduct its investigations however it sees fit, so long as it does not impinge upon the constitutional rights of those it undertakes to question.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 75, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[T]he committees have alleged a pressing need for the subpoenaed documents to further their investigation, and it is not the role of the Court or plaintiffs to second guess that need, especially in light of the Court’s conclusions that the requested documents are pertinent to what is likely a lawful congressional investigation.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 85, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“While … ‘Congress’ investigatory power is not, itself, absolute’ and … it ‘is not immune from judicial review,’ … this Court will not – and indeed, may not – engage in a line-by-line review of the Committee’s requests.”

–Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 15, 291 F. Supp. 3d 34 (D.C.C. 2018); accord House Mazars case: Trump v. Committee on Oversight & Government Reform of U.S. House of Representatives, Opinion at 20, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 70-71, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[A]bsent evidence to suggest that the Committee will not follow its own rules [on confidentiality] … [a court] must presume that those rules are being followed.”

–Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 22, 291 F. Supp. 3d 34 (D.C.C. 2018)

The district court judge “was careful to state that Congress’s legislative authority ‘includes a more general informing function.’ This reflected the Supreme Court’s statement in Hutchinson v. Proxmire … that ‘congressional efforts to inform itself through committee hearings are part of the legislative function.’”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 79 (emphasis in original), 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“Related to Congress’s legislative function is its ‘informing function.’ The Supreme Court has understood that function to permit ‘Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.’ Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). ‘From the earliest times in its history, the Congress has assiduously performed an “informing function” of this nature.’ … Thus, though not wholly distinct from its legislative function, the informing function is a critical responsibility uniquely granted to Congress under Article I.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 16-17, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 60, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“If there is fraud or abuse or waste or corruption in the federal government, it is the constitutional duty of Congress to find the facts and, as necessary, take corrective action. Conducting investigations is the means that Congress uses to carry out that constitutional obligation.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 72-73, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“Congress brings in witnesses not as punishment, but to provide the Legislature with the information that it needs to perform its critical legislative and oversight functions.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 109, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[W]hen a committee of Congress seeks testimony and records by issuing a valid subpoena in the context of a duly authorized investigation, it has the Constitution’s blessing, and ultimately, it is acting not in its own interest, but for the benefit of the People of the United States.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 72, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[T]he committees’ general authority to issue subpoenas [is] well settled, given that committee members serve as the representatives of the parent assembly in collecting information for a legislative purpose and their function is to act as the eyes and ears of the Congress in obtaining facts upon which the full legislature can act.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 59, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“Congress’s constitutional power to investigate is not unlimited. The Supreme Court has identified several limitations. One concerns intrusion into the authority of the other branches of the government. … The power to investigate ‘must not be confused with any of the powers of law enforcement.’ … ‘Nor does it extend to an area in which Congress is forbidden to legislate.’ … ‘Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights’ …. [T]he power to investigate ‘cannot be used to inquire into private affairs unrelated to a valid legislative purpose.’”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 48-49 (quoting multiple cases), 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“Congress may in exercising its investigative power neither usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 19, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Congress may investigate only those topics on which it could legislate …. If no constitutional statute may be enacted on a subject matter, then that subject is off-limits to congressional investigators.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion 19-20, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Even a valid legislative purpose cannot justify a subpoena demanding irrelevant material. … [I]f a committee could subpoena information irrelevant to its legislative purpose, then the Constitution would in practice impose no real limit on congressional investigations.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 20, 50, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“’Accommodation of the congressional need for particular information with the individual and personal interest in privacy is an arduous and delicate task for any court.’ … We next consider the ‘legislative purpose’ to which the Committees assert their investigations are ‘related’ and ‘the weight to be ascribed to[] the interest of the Congress in demanding disclosures’ in order to determine whether ‘a public need’ for such investigation ‘overbalances any private rights affected.’

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 51, 58, 943 F.3d 627 (2d Cir. 2019)(in part quoting Supreme Court), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[T]he President ‘occupies a unique position in the constitutional scheme,’ … [and] a court should not ‘proceed against the president as against an ordinary individual[.]’”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 22 (quoting Supreme Court), 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019); accord Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 11 (noting the “high respect” owed to the office of the President), 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“The Supreme Court unanimously disagreed, noting that ‘neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.’”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 19, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“We have no occasion to decide today the precise contours and limitations of presidential immunity from prosecution …. [W]e conclude only that presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 17, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 23, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“It is Mazars, not the President, that would be cited for contempt in the event of non-compliance. … This case therefore presents no concerns about the constitutionality of holding a sitting President in contempt.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 31, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“[I]t would nonetheless exact a heavy toll on our criminal justice system to prohibit a state from even investigating potential crimes committed by [the President] for potential later prosecution, or by other persons, not protected by any immunity, simply because the proof of those alleged crimes involves the President.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 27-28 (emphasis in original), 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“Our ‘twofold aim’ that ‘guilt shall not escape or innocence suffer’ … would be substantially frustrated if a President’s temporary immunity were interpreted to shield the conduct of third parties from investigation.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 28, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“To be clear, this is not to suggest that a President is immune from legislative subpoenas into personal matters—not at all.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Livingston partial concurrence and partial dissent at 22, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“As [the District] Court reads it, presidential immunity would stretch to cover every phase of criminal proceedings, including investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial, conviction, and incarceration. It presumably would encompass any conduct, at any time, in any forum, whether federal or state, and whether President acted alone or in concert with other individuals. … Moreover, on this theory, the President’s special dispensation from the criminal law’s purview and judicial inquiry would embrace not only the behavior and activities of the President himself, but also extend derivatively so as to potentially immunize the misconduct of any other person, business affiliate, associate, or relative who may have collaborated with the President in committing purportedly unlawful acts and whose offenses ordinarily would warrant criminal investigation and prosecution of all involved.”

–Manhattan DA-Mazars case: Trump v. Vance, Opinion at 2-3, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“Bared to its core, the proposition the President advances reduces to the very notion that the Founders rejected at the inception of the Republic, and that the Supreme Court has since unequivocally repudiated: that a constitutional domain exists in this country in which not only the President, but derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law. …

[T]his Court finds aspects of such a doctrine repugnant to the nation’s governmental structure and constitutional values[.]”

–Manhattan DA-Mazars case: Trump v. Vance, Opinion at 8, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“[T]he Court finds that disclosure to a grand jury is different from disclosure to other persons or entities like those identified in the cases cited by the President. And because a grand jury is under a legal obligation to the confidentiality of its records, the Court finds that no irreparable harm will ensue from disclosure to it of the President’s records sought here.”

–Manhattan DA-Mazars case: Trump v. Vance, Opinion at 42, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“The DOJ Office of Legal Counsel’s (‘OLC’) legal conclusion that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers’ … has never been adopted, sanctioned, or in any way approved by a court.”

–Mueller Grand Jury Case: In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, No. 19-gj-48 (BAH), Opinion at 12-13, 2019 WL 5485221 (D.D.C. Oct. 25, 2019)

“Nor can [the Court] abide DOJ’s less-than-subtle suggestion that, under our constitutional scheme, the Legislature and the Judiciary are both hopelessly stymied when it comes to addressing alleged abuses by the Executive branch, such that, ultimately, the President wields virtually unchecked power.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 40, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[G]iven the indisputable Article I power of the House of Representatives to conduct investigations of potential abuses of power and subpoena witnesses to testify at hearings concerning such investigations, the Judiciary Committee has both standing and a cause of action to file an enforcement lawsuit in federal court if the Executive branch blocks a current or former presidential aides’ performance of his duty to respond to a legislative subpoena. … [DOJ’s] threshold contentions about the limited scope of the Judiciary’s power to hear the claim at issue under the Constitution are based on ‘the Executive’s interest in ‘autonomy[,]’ … and that interest, in turn, ‘rests upon a discredited notion of executive power and privilege[.]’”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 4, 46-47, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[A]s a matter of law, senior-level current and former presidential aides, including White House Counsels, must appear before Congress if compelled by legislative process to do so. This means that such aides cannot defy a congressional subpoena on the basis of absolute testimonial immunity, even if the President for whom they work (or worked) demands that response.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 40-41, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 110, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. … This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. … DOJ’s present assertion that the absolute testimonial immunity that senior-level presidential aides possess is, ultimately, owned by the President, and can be invoked by the President to overcome the aides’ own will to testify, is a proposition that cannot be squared with core constitutional values, and for this reason alone, it cannot be sustained.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 114-115, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“Congress brings in witnesses not as punishment, but to provide the Legislature with the information that it needs to perform its critical legislative and oversight functions.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 109, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[T]he fact that an investigation might expose criminal conduct does not transform a legislative inquiry into a law-enforcement endeavor.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 22, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 77-78, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[A] congressional committee … engaged in a legitimate legislative investigation need not grind to a halt whenever … crime or wrongdoing is disclosed.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 29-30 (quoting Supreme Court), 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“An interest in past illegality can be wholly consistent with an intent to enact remedial legislation. … [A]n investigation may properly focus on one individual if that individual’s conduct offers a valid point of departure for remedial legislation.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 29, 31, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“[A]s long as valid legislative purposes are duly authorized and being pursued by use of the challenged subpoenas, the fact that relevant information obtained also serves as a useful ‘case study’ does not detract from the lawfulness of the subpoenas.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 73, n. 67, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[C]ongressional examination of whether regulatory agencies are properly monitoring a bank’s practices does not convert an inquiry into impermissible law enforcement.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 73, n. 67, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[A] Congressional investigation into ‘illegal conduct before and during [the President’s] tenure in office’ … fits comfortably within the broad scope of Congress’s investigative powers.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 23, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office. This court is not prepared to roll back the tide of history.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 24, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“History has shown that congressionally-exposed criminal conduct by the President or a high-ranking Executive Branch official can lead to legislation. The Senate Watergate Committee provides an apt example.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 29, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“[O]ur review is appropriately more exacting where the action sought to be enjoined concerns the President, even though he is suing in his individual, not official, capacity, in view of the ‘[h]igh respect that is owed to the office of the Chief Executive[.]”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 11, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

Bank compliance with a House subpoena would meet the preliminary injunction standard of irreparable harm, because President Trump, his businesses and family members “‘have an interest in keeping their records private from everyone, including congresspersons,’ and ‘the committees have not committed one way or the other to keeping plaintiffs’ records confidential from the public once received.’”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 14, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

Appellants made no assertion that “any constitutionally based privilege … might protect their financial records from production by the Banks to the Committees[.]”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 45, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[N]one of the materials sought by the Mazars subpoena implicates executive privilege. … Nor does the subpoena seek information regarding the President’s ‘action[s] taken in an official capacity.’ … The subpoena seeks only the President’s private tax returns and financial information relating to the businesses he owns in his capacity as a private citizen. These documents do not implicate, in any way, the performance of the President’s official duties.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 20-21, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019); accord House Mazars case: Trump v. Mazars USA, LLP, Opinion at 20-21, 24, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, 2019 WL 6797734 (U.S. Dec. 13, 2019) (No. 19-715)

“The Committees’ interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction arising from disclosure of documents reflecting his private financial transactions.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 105, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“The only question before us is whether a state may lawfully demand production by a third party of the President’s personal financial records for use in a grand jury investigation while the President is in office. With the benefit of the district court’s well-articulated opinion, we hold that any presidential immunity from state criminal process does not bar the enforcement of such a subpoena.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 33, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

Laws imposing financial disclosure requirements on the president may be constitutional and are a subject on which legislation may be had.

–House Mazars case: Trump v. Mazars USA, LLP, Opinion at 45, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, 2019 WL 6797734 (U.S. Dec. 13, 2019) (No. 19-715)

“[A]lthough the challenged subpoena, which seeks financial documents related to President Trump in his pre-presidential, private capacities, presents no direct inter-branch dispute, separation-of-powers concerns still linger in the air.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 24, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Trump v. Deutsche Bank AG, Livingston partial concurrence and partial dissent at 22, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

Congress is not subject to the Right to Financial Privacy Act.

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 33, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

The “Gramm‐Leach‐Bliley [Act] is also no bar to production of tax returns [to Congress], because it explicitly permits disclosure of personal information ‘to comply with a … subpoena … by Federal … authorities.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 43, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

Section 6103 restricts the production of tax returns by the IRS, but not by a bank so long as the bank did not obtain those tax returns from the IRS. A Congressional committee may subpoena tax returns from a third-party custodian like a bank without having to comply with Section 6103(f).

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 42-43, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“Courts in this circuit have recognized that the disclosure of private, confidential information is the quintessential type of irreparable harm that cannot be compensated or undone by money damages.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 54, 2019 WL 2204898 (S.D.N.Y. May 22, 2019)

“[T]here can be little doubt that Congress’s interest in the accuracy of the President’s financial disclosures falls within the legislative sphere.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 22, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Plaintiff points to no authority to support its theory that the [First Amendment’s] freedom of association protects financial records [from a Congressional subpoena]. And this is not surprising, given that commercial transactions do not give rise to associational rights, even where the subjects of those transactions are protected by the First Amendment.”

–Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 19 (emphasis in original), 291 F. Supp. 3d 34 (D.C.C. 2018)

“[T]his case does not concern separation of powers. The Lead Plaintiff is not suing in his official capacity, no action is sought against him in his official capacity, no official documents of the Executive Branch are at issue, Congress has not arrogated to itself any authority of the Executive Branch, and Congress has not sought to limit any authority of the Executive Branch.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 89, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[A]lthough the challenged subpoena, which seeks financial documents related to President Trump in his pre-presidential, private capacities, presents no direct inter-branch dispute, separation-of-powers concerns still linger in the air.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 24, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Trump v. Deutsche Bank AG, Livingston partial concurrence and partial dissent at 22, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“Bared to its core, the proposition the President advances reduces to the very notion that the Founders rejected at the inception of the Republic, and that the Supreme Court has since unequivocally repudiated: that a constitutional domain exists in this country in which not only the President, but derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law. …

[T]his Court finds aspects of such a doctrine repugnant to the nation’s governmental structure and constitutional values[.]”

–Manhattan DA-Mazars case: Trump v. Vance, Opinion at 8, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“This Court cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process as being countenanced by the nation’s constitutional plan, especially in the light of the fundamental concerns over excessive arrogation of power that animated the Constitution’s delicate structure and its calibrated balance of authority among the three branches of the national government, as well as between the federal and state authorities.”

–Manhattan DA-Mazars case: Trump v. Vance, Opinion at 4, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“The Supreme Court unanimously disagreed, noting that ‘neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.’”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 19, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“Nor can [the Court] abide DOJ’s less-than-subtle suggestion that, under our constitutional scheme, the Legislature and the Judiciary are both hopelessly stymied when it comes to addressing alleged abuses by the Executive branch, such that, ultimately, the President wields virtually unchecked power.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 40, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“It also plainly advances constitutional separation-of-powers principles, rather than subverts them, when a federal court decides the question of whether a legislative subpoena that a duly authorized committee of the House of Representatives has issued to a senior-level aide of the President is valid and enforceable, or, alternatively, is subject to the President’s invocation of absolute testimonial immunity.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 6, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[T]here can be no doubt that providing the branches with the power to limit each other’s behavior, for the protection of the People, was the original intent of the Framers, as evidenced both by the constitutional scheme they adopted and by the remarks they made to explain the separation-of-powers construct. Indeed, far from DOJ’s present suggestion that the separation-of-powers construct means that the political branches must resolve their disputes in the political arena and never head to federal court, Federalist No. 51 proceeds to explain that political checks are not the sole solution, and that the branches themselves must also be vested with the power to police the abuses of the others.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 62, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“DOJ’s odd idea that federal courts’ indisputable power to adjudicate questions of law evaporates if the requested pronouncement of law happens to occur in the context of a dispute between branches appears nowhere in the annals of established constitutional law.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 61, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“DOJ’s implicit suggestion that compelled congressional process is a ‘zero-sum’ game in which the President’s interest in confidentiality invariably outweighs the Legislature’s interest in gathering truthful information, such that current and former senior-level presidential aides should be always and forever immune from answering probing questions, is manifestly inconsistent with a governmental scheme that can only function properly if its institutions work together.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 110, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

DOJ “maintains, that ‘the public spectacle of haling [current and] former advisors to a sitting President before a committee of Congress . . . promote[s] the perception of Executive subservience to the Legislature’ … which, in its view of what the Constitution permits, is improper, because ‘[a] committee of Congress could not, consistent with the separation of powers, hale the President before it to compel him to testify under oath, any more than the President may compel congressmen to appear before him[.]’ … [W]hile the branches might well be conceived of as co-equals (in the sense that one cannot unlawfully subvert the prerogatives of another), that does not mean that all three branches must be deemed to have the same powers. To the contrary, the President cannot hale members of Congress into the White House for questioning precisely because the power of inquiry resides with the Legislature, and also because the Constitution itself expressly prevents the Executive branch from becoming inquisitors by inflicting its own subpoena power on members of Congress for political reasons.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 111-112 (emphasis in original), 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“To give the Attorney General the final word on what documents are produced to Congress, with no opportunity for judicial review, would ‘elevate and fortify the executive branch at the expense of the other institutions that are supposed to be its equal, and do more damage to the balance envisioned by the Framers than a judicial ruling on the narrow privilege question posed by the complaint.’”

–Fast and Furious Case: Comm. on Oversight & Gov’t Reform, United States House of Representatives v. Sessions, Opinion at 4, 344 F. Supp. 3d 1 (D.D.C. 2018)

“[N]one of the materials sought by the Mazars subpoena implicates executive privilege. … The subpoena seeks only the President’s private tax returns and financial information relating to the businesses he owns in his capacity as a private citizen. These documents do not implicate, in any way, the performance of the President’s official duties.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 20-21, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019); accord House Mazars case: Trump v. Mazars USA, LLP, Opinion at 20-21, 24, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, 2019 WL 6797734 (U.S. Dec. 13, 2019) (No. 19-715)

“[I]f a duly authorized committee of Congress issues a valid legislative subpoena to a current or former senior-level presidential aide, the law requires the aide to appear as directed, and assert executive privilege as appropriate.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 90, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

The Department of Justice Office of Legal Counsel (OLC) “serves as legal counsel to the Executive branch, and ‘the Executive cannot be the judge of its own privilege[.]’ … Consequently, its statement of the law is ‘entitled to only as much weight as the force of [its] reasoning will support.’”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 97, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“During the course of this litigation pitting two branches of the United States government against one another, the Court determined … that the executive branch could invoke the deliberative process prong of the executive privilege to shield records from production to the legislature; that the privilege could not be asserted on a blanket basis, though, but only on a document-by-document basis; that the privilege covered internal deliberations concerning communications with Congress or the media; and that the privilege was not absolute and could be waived or overcome by a showing of need.”

–Fast and Furious Case: Comm. on Oversight & Gov’t Reform, United States House of Representatives v. Sessions, Opinion at 22, 344 F. Supp. 3d 1 (D.D.C. 2018)

“To give the Attorney General the final word on what documents are produced to Congress, with no opportunity for judicial review, would ‘elevate and fortify the executive branch at the expense of the other institutions that are supposed to be its equal, and do more damage to the balance envisioned by the Framers than a judicial ruling on the narrow privilege question posed by the complaint.’”

–Fast and Furious Case: Comm. on Oversight & Gov’t Reform, United States House of Representatives v. Sessions, Opinion at 4, 344 F. Supp. 3d 1 (D.D.C. 2018)

“[F]ailure to assert a common privilege in a timely and detailed manner results in waiver of the underlying privilege. This result is particularly forceful and compelling in the context of congressional subpoenas, where the Court’s authority and jurisdiction is limited by statute and by due respect for separation of powers.”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, No. 1:16-mc-00621-RMC, Order at 11 (D.D.C. Sept. 30, 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)

The subpoena recipient’s failure to assert his privileges on a timely basis “precluded the [Senate] Subcommittee from considering the applicability of his common law privileges to the congressional subpoena. Because Mr. Ferrer willfully chose this path, it is highly questionable whether the Court has jurisdiction under the statute to acknowledge Mr. Ferrer’s untimely assertion of privilege.”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, No. 1:16-mc-00621-RMC, Order at 6 (D.D.C. Sept. 30, 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)

“[T]he Supreme Court has made plain that ‘in determining the legitimacy of a congressional act,’ courts may ‘not look to the motives alleged to have prompted it.’”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 22, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 50, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[T]he Supreme Court’s instruction [is] that motions to enjoin a congressional subpoena should ‘be given the most expeditious treatment by district courts because one branch of Government is being asked to halt the functions of a coordinate branch.’”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 73, 87, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[W]e note the likely futility of ordering a total remand for negotiation [on the subpoena] … in view of the fact that the White House has prohibited members of the Administration from even appearing in response to congressional subpoenas and has informed Congress that ‘President Trump and his Administration cannot participate’ in congressional inquiries.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 71-72, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“[T]he committees have alleged a pressing need for the subpoenaed documents to further their investigation, and it is not the role of the Court or plaintiffs to second guess that need, especially in light of the Court’s conclusions that the requested documents are pertinent to what is likely a lawful congressional investigation.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 85, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“To give the Attorney General the final word on what documents are produced to Congress, with no opportunity for judicial review, would ‘elevate and fortify the executive branch at the expense of the other institutions that are supposed to be its equal, and do more damage to the balance envisioned by the Framers than a judicial ruling on the narrow privilege question posed by the complaint.’”

–Fast and Furious Case: Comm. on Oversight & Gov’t Reform, United States House of Representatives v. Sessions, Opinion at 4, 344 F. Supp. 3d 1 (D.D.C. 2018)

“[T]he Supreme Court’s analysis of the Legislature’s Article I investigative power confirms that a committee of Congress’s right to enforce its subpoenas is intrinsic to its constitutional authority to conduct investigations in the first place.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 78 (emphasis in original), 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[T]he fact that the Judiciary Committee has ‘several political arrows in its quiver to counter perceived threats to its sphere of power[,]’ … and, therefore, ‘this lawsuit is not a last resort for the House[,]’ … is irrelevant. The elements that courts must consider to determine whether a plaintiff has Article III standing are well established …, and they do not include a ‘last resort’ requirement.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 83, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“DOJ’s suggestion that a thwarted House committee must eschew the courts and, instead, must rely on its ‘power to withhold appropriations’ in order ‘to get the information that it needs’ (Hr’g Tr. at 65:18–20) is nearly a practical nullity, because an appropriations sanction for non-compliance with a legislative subpoena cannot be implemented swiftly enough to preserve the utility of a defiant witness’s testimony, and it also cannot be achieved without the cooperation of the entire Congress as well as the President whom the Judiciary Committee is investigating and whose allegedly unlawful directive to his senior-level aides is the impetus for the Committee’s legal claims.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 84, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“A lawsuit that asserts that a legislative subpoena should be quashed as unlawful is merely the flip side of a lawsuit that argues that a legislative subpoena should be enforced.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 57 (emphasis in original), 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“While … ‘Congress’ investigatory power is not, itself, absolute’ and … it ‘is not immune from judicial review,’ … this Court will not – and indeed, may not – engage in a line-by-line review of the Committee’s requests.”

–Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 15, 291 F. Supp. 3d 34 (D.C.C. 2018); accord House Mazars case: Trump v. Committee on Oversight & Government Reform of U.S. House of Representatives, Opinion at 20, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 70-71, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

When considering civil enforcement of a Senate subpoena under 28 U.S.C. § 1365, “[t]he statute strips this Court of its customary authority to modify or quash a subpoena. It allows the Court only to decide whether to enforce the subpoena brought before it. … The statute’s legislative history makes clear that ‘the court’s jurisdiction is limited to the matter Congress brings before it, that is whether or not to aid Congress is enforcing the subpoena or order.’ … It is the Senate’s constitutional prerogative to decide what to bring before the Court.”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, Opinion at 12 (emphasis in original), 199 F. Supp. 3d 125 (D.D.C. 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)

“There is simply no legal or factual support for the proposition that being required to search for responsive documents would abridge Mr. Ferrer’s [First Amendment] protected freedoms of speech or press. Mr. Ferrer does not possess an absolute right to be free from government investigation when there are valid justifications for the inquiry.”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, Opinion at 20, 199 F. Supp. 3d 125 (D.D.C. 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)

“As the Supreme Court has observed, documents subpoenaed by a congressional committee need only be ‘not plainly incompetent or irrelevant to any lawful purpose [of a committee] in the discharge of its duties.’”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 88, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“The Supreme Court has used various formulations to describe the relevancy standard that applies to congressional subpoenas. … We read all these statements, varied as they are, as conveying essentially the same straightforward proposition: Congress may subpoena only that information which is ‘reasonably relevant’ to its legitimate investigation.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 50-51, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Even a valid legislative purpose cannot justify a subpoena demanding irrelevant material.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 20, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“[I]nformation from the past may at some point become so stale as to be irrelevant to present inquiries, but the eight-year mark falls comfortably on the relevant side of the line.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 50, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“The Supreme Court has previously concluded that where the records called for by a subpoena were not plainly incompetent or irrelevant to any lawful purpose of a subcommittee in the discharge of its duties, but, on the contrary, were reasonably relevant to the inquiry, then such records are, in fact, pertinent. … As noted by Judge Mehta in his opinion earlier this week, the standard adopted by the Supreme Court is a forgiving one.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 85, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019); accord House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 35, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“[W]here, as here, an investigative subpoena is challenged on relevancy grounds, ‘the Supreme Court has stated that the subpoena is to be enforced “unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the … investigation.”’ … In determining the proper scope of the Subpoena, ‘this Court may only inquire as to whether the documents sought by the subpoena are “not plainly incompetent or irrelevant to any lawful purpose [of the Committee] in the discharge of [its] duties.”’”

–Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 15-16, 291 F. Supp. 3d 34 (D.C.C. 2018)

“‘The burden of showing that the request is unreasonable is on the subpoenaed party,’ and this ‘burden is not easily met where, as here, the [Subcommittee’s] inquiry is pursuant to a lawful purpose and the requested documents are relevant to that purpose.’”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, Opinion at 29 (quoting a D.C. Circuit case), 199 F. Supp. 3d 125 (D.D.C. 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017); accord Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 16, 291 F. Supp. 3d 34 (D.C.C. 2018)

“Plaintiffs conflate the concept of ‘pertinency’ with the notion of ‘relevancy’ as used in civil proceedings. ‘Pertinency’ does not require the court to ask, as it would in a civil discovery dispute, whether the documents requested are likely to yield useful evidence. Instead, pertinency ‘is a jurisdictional concept . . . drawn from the nature of a congressional committee’s source of authority[.]’” Pertinency is a required “element of criminal contempt” of Congress.

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 34, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“[U]nless and until Congress adopts a rule that offends the Constitution, the courts get no vote in how each chamber chooses to run its internal affairs.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 62, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“The Constitution gives ‘[e]ach House’ of Congress authority to ‘determine the Rules of its Proceedings,’ U.S. Const. art. I, § 5, cl. 2, meaning that courts lack the power to invalidate a duly authorized congressional subpoena merely because it might have been ‘better [if] . . . the full House’ had specifically authorized or issued it[.]’”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 62, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Requiring Congress to state ‘with sufficient particularity’ the legislation it is considering before it issues an investigative subpoena would turn the legislative process on its head.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 34 (emphasis in original), 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 71, 2019 WL 2204898 (S.D.N.Y. May 22, 2019)

“In all of the numerous decisions concerning congressional subpoenas for information from Executive Branch officials, including the President, there is not even a hint, much less a ruling, that the House (or Senate) is required to authorize a specific subpoena issued by one of its committees.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 89, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019); accord Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 13, 291 F. Supp. 3d 34 (D.C.C. 2018)

“The law is well settled that a stay of a final judicial order pending appeal is an ‘extraordinary remedy.’ … The party requesting a stay bears the burden of showing that the circumstances of a particular case justify an exercise of judicial discretion[.]”

–Mueller Grand Jury Case: In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, No. 19-gj-48 (BAH), Order at 1-2, 2019 WL 5608827 (D.D.C. Oct. 29, 2019); accord McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Order at 4, 2019 WL 6463406 (D.D.C. Dec. 2, 2019); Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, No. 1:16-mc-00621-RMC, Order at 3 (D.D.C. Sept. 30, 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017); Fusion GPS Case: Bean LLC v. John Doe Bank, Opinion at 10 (applying same standard to motion for a preliminary injunction to stay a subpoena), 291 F. Supp. 3d 34 (D.C.C. 2018)

“[A] party moving for a stay is required to demonstrate that the injury claimed is ‘both certain and great.’”

–Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Order at 3, 2019 WL 5608827 (D.D.C. Oct. 29, 2019); accord McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Order at 3, 2019 WL 6463406 (D.D.C. Dec. 2, 2019)

“There are four ‘traditional’ factors that govern a request for a stay: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Order at 2-3, 2019 WL 6463406 (D.D.C. Dec. 2, 2019); accord Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Order at 2, 2019 WL 5608827 (D.D.C. Oct. 29, 2019)

“[A] party seeking a stay pending appeal must ‘raise[] questions going to the merits so serious, substantial, difficult[,] and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Order at 3, 2019 WL 6463406 (D.D.C. Dec. 2, 2019); accord Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Order at 3, 2019 WL 5608827 (D.D.C. Oct. 29, 2019)

“[C]ompliance with a valid subpoena that a committee of Congress issues pursuant to Article I investigative powers is itself a legal duty, and therefore not an injury at all.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Order at 10, 2019 WL 6463406 (D.D.C. Dec. 2, 2019)

“This Court has no doubt that further delay of the Judiciary Committee’s enforcement of its valid subpoena causes grave harm to both the Committee’s investigation and the interests of the public more broadly. … Interference with a House committee’s ability to perform its constitutionally assigned function of gathering relevant and important information concerning potential abuses of power in a timely fashion injures both the House and the People whose interests the Congress’s power of inquiry is being deployed to protect.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v McGahn, No. 19-CV-2379 (KBJ), Order at 14, 2019 WL 6463406 (D.D.C. Dec. 2, 2019)

“[T]he Judiciary Committee would almost certainly lose the chance to question McGahn as part of the present impeachment inquiry if a stay order issues, which would unquestionably harm the ongoing investigation that the Judiciary Committee is conducting, and by extension, would also injure the public’s interest in thorough and well-informed impeachment proceedings.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Order at 15, 2019 WL 6463406 (D.D.C. Dec. 2, 2019); accord Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Order at 4, 7, 2019 WL 5608827 (D.D.C. Oct. 29, 2019)

“[R]equiring McGahn to testify during the pendency of the appeal ‘will not preclude the Executive from asserting absolute immunity prospectively in the event that the D.C. Circuit reverses this Court’s absolute immunity holding and concludes that senior advisors are entitled to such protection[,]’ … [Thus,] the impact of this Court’s ruling is far less dramatic than DOJ represents … [and] any harm to the Executive branch’s interests from the denial of DOJ’s requested stay pending appeal is minimal.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Order at 12, 2019 WL 6463406 (D.D.C. Dec. 2, 2019)

“[T]he committees have alleged a pressing need for the subpoenaed documents to further their investigation, and it is not the role of the Court or plaintiffs to second guess that need, especially in light of the Court’s conclusions that the requested documents are pertinent to what is likely a lawful congressional investigation. What’s more, because the House of Representatives is not a ‘continuing body,’ … any delay in the proceedings may result in irreparable harm to the committees.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 85, 2019 WL 2204898 (S.D.N.Y. May 22, 2019), aff’d in part, remanded in part, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“A motion to stay a court order pending appeal is not a platform to relitigate an issue or to preserve arguments that were not properly raised.”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, No. 1:16-mc-00621-RMC, Order at 4 (D.D.C. Sept. 30, 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)

In a motion for stay pending appeal, the court cannot permit the subpoena recipient “to assert new privileges or objections that the [Senate] Subcommittee was unable to consider and rule upon. To hold otherwise would raise serious separation of powers concerns and potentially undermine Congress’s constitutional power of inquiry.”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, No. 1:16-mc-00621-RMC, Order at 4 (D.D.C. Sept. 30, 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)

“It is well-settled that a party requesting the extraordinary equitable relief of a stay pending appeal ‘does not satisfy the irreparable harm criterion when the alleged harm is self-inflicted.’”

–Backpage.com Case: Senate Permanent Subcomm. v. Ferrer, No. 1:16-mc-00621-RMC, Order at 10 (D.D.C. Sept. 30, 2016), vacated as moot sub nom. Senate Permanent Subcomm. on Investigations v. Ferrer, 856 F.3d 1080 (D.C. Cir. 2017)

“[T]he dissent cites nothing in the Constitution or case law—and there is nothing—that compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 46, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Opinion at 53, 2019 WL 5485221 (D.D.C. Oct. 25, 2019)

“When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power. Throughout our history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.”

–House Mazars case: Trump v. Mazars USA, LLP, Rao dissent at 1, 940 F.3d 710, (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, 2019 WL 6797734 (U.S. Dec. 13, 2019) (No. 19-715)

“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.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 24, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019); accord Mueller Grand Jury Case: In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, No. 19-gj-48 (BAH), Opinion at 43, 2019 WL 5485221 (D.D.C. Oct. 25, 2019)

“While [a committee] is ‘pursuing a legitimate legislative objective [it] may … choose to move from legislative investigation to impeachment. … Here, [the House Judiciary Committee] began, appropriately, with a broad inquiry, but focused on impeachment as the investigation progressed. This new focus does not necessitate that HJC forgo its other aims. … HJC’s investigation to determine whether to impeach President Nixon, for example, contributed not only to President Nixon’s resignation, but also to significant legislative reforms.”

–Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Opinion at 55, 61-62, 2019 WL 5485221 (D.D.C. Oct. 25, 2019)

“Representative Collins asserts that HJC’s investigation cannot be ‘preliminarily to’ an impeachment trial until the full House passes a resolution authorizing a ‘formal impeachment proceeding.’ … The precedential support cited for the ‘House resolution’ test is cherry-picked and incomplete, and more significantly, this test has no textual support in the U.S. Constitution, the governing rules of the House, or Rule 6(e), as interpreted in binding decisions. … Even in cases of presidential impeachment, a House resolution has never, in fact, been required to begin an impeachment inquiry. ‘

–Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Opinion at 49, 51, 2019 WL 5485221 (D.D.C. Oct. 25, 2019)

“Blocking access to evidence collected by a grand jury relevant to an impeachment inquiry, as DOJ urges, undermines the House’s ability to carry out its constitutional responsibility with due diligence.”

–Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Opinion at 60, 2019 WL 5485221 (D.D.C. Oct. 25, 2019)

“In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel’s investigation, nor risk being misled by witnesses, who may have provided information to the grand jury and the Special Counsel that varies from what they tell [the House].”

–Mueller Grand Jury Case: In re Application of Comm. on the Judiciary, U.S. House of Representatives for an Order Authorizing Release of Certain Grand Jury Materials, No. 19-48 (BAH), Opinion at 2-3, 2019 WL 5485221 (D.D.C. Oct. 25, 2019)

“The DOJ Office of Legal Counsel’s (‘OLC’) legal conclusion that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers’ … has never been adopted, sanctioned, or in any way approved by a court.”

–Mueller Grand Jury Case: In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, No. 19-gj-48 (BAH), Opinion at 12-13, 2019 WL 5485221 (D.D.C. Oct. 25, 2019); accord Manhattan DA-Mazars case: Trump v. Vance, Opinion at 46-47, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“[T]he DOJ Memos do not constitute authoritative judicial interpretation of the Constitution concerning those issues.”

–Manhattan DA-Mazars case: Trump v. Vance, Opinion at 47, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

The Department of Justice Office of Legal Counsel (OLC) “serves as legal counsel to the Executive branch, and ‘the Executive cannot be the judge of its own privilege[.] … Consequently, its statement of the law is ‘entitled to only as much weight as the force of [its] reasoning will support.’”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 97, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“Given that there is only one other judicial opinion interpreting the [Emoluments] Clause, the Court looks to OLC and Comptroller General opinions as sources of authority for how ‘Emolument’ is defined and how the Clause is interpreted and applied.”

–Emoluments Case: Blumenthal v. Trump, Opinion at 31, 373 F. Supp. 3d 191 (D.D.C. 2019), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“[T]he President may not accept any foreign emolument until Congress votes to give its consent.”

–Emoluments Case: Blumenthal v. Trump, Opinion at 9, 335 F. Supp. 3d 45 (D.D.C. 2018), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“The Clause was intended by the Framers to guard against ‘corruption and foreign influence.’”

–Emoluments Case: Blumenthal v. Trump, Opinion at 10, 335 F. Supp. 3d 45 (D.D.C. 2018), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“The [Foreign Emoluments] Clause therefore places the burden on the President to convince a majority of Members of Congress to consent.”

–Emoluments Case: Blumenthal v. Trump, Opinion at 45, 335 F. Supp. 3d 45 (D.D.C. 2018), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“[T]he Court ‘must carefully inquire as to whether [plaintiffs] have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.’”

–Emoluments Case: Blumenthal v. Trump, Opinion at 8-9, 335 F. Supp. 3d 45 (D.D.C. 2018), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“[T]he Court finds that the plaintiffs have standing to sue the President for allegedly violating the Foreign Emoluments Clause.”

–Emoluments Case: Blumenthal v. Trump, Opinion at 4, 335 F. Supp. 3d 45 (D.D.C. 2018), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“The President’s [proposed] definition [of emolument], however, disregards the ordinary meaning of the term as set forth in the vast majority of Founding-era dictionaries; is inconsistent with the text, structure, historical interpretation, adoption, and purpose of the Clause; and is contrary to Executive Branch practice over the course of many years.”

–Emoluments case: Blumenthal v. Trump, Opinion at 2, 373 F. Supp. 3d 191 (D.D.C. 2019), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“‘Emolument’ is broadly defined as any profit, gain, or advantage.”

–Emoluments Case: Blumenthal v. Trump, Opinion at 36, 373 F. Supp. 3d 191 (D.D.C. 2019), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“Plaintiffs have alleged that the President has accepted a variety of Emoluments from foreign governments—intellectual property rights, payments for hotel rooms and events, payments derived from real estate holdings, licensing fees for ‘The Apprentice,’ and regulatory benefits—without seeking and obtaining the consent of Congress.”

–Emoluments Case: Blumenthal v. Trump, Opinion at 37, 373 F. Supp. 3d 191 (D.D.C. 2019), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“The Court is persuaded that this is a proper case in which to exercise its equitable discretion to enjoin allegedly unconstitutional action by the President.”

–Emoluments Case: Blumenthal v. Trump, Opinion at 40, 373 F. Supp. 3d 191 (D.D.C. 2019), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

“Investigating whether the President is abiding by the foreign emoluments clause is a subject on which legislation, or similar congressional action, could be had.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 22, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“An important line of Supreme Court decisions, usually tracing back to McGrain v. Daugherty, 273 U.S. 135 (1927), has recognized a broad power of Congress and its committees to obtain information in aid of its legislative authority under Article I of the Constitution.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, Opinion at 46-47, 943 F.3d 627 (2d Cir. 2019), cert. granted, No. 19-760, 2019 WL 6797733 (U.S. Dec. 13, 2019)

“Over 200 years ago, Chief Justice Marshall, sitting as the trial judge in the prosecution of Aaron Burr, upheld the issuance of a subpoena duces tecum to President Jefferson.”

–Manhattan DA-Mazars Case: Trump v. Vance, Opinion at 18, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“Though not dispositive, the fact that every President during the last four decades has filed financial disclosures offers persuasive evidence that such disclosures neither ‘prevent[]’ nor ‘disrupt[]’ … the President’s efforts to ‘take Care that the Laws be faithfully executed,’ U.S. Const. art. II, § 3.”

–House Mazars Case: Trump v. Mazars USA, LLP, Opinion at 42-43, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“As the Supreme Court noted in Watkins, most instances of use of compulsory process by the first Congress concerned matters affecting the qualification or integrity of their members or came about in inquiries dealing with suspected corruption or mismanagement of government officials. There was very little use of the power of compulsory process in early years to enable the Congress to obtain facts pertinent to the enactment of new statutes or the administration of existing laws.”

–Deutsche Bank-Capital One Case: Trump v. Deutsche Bank AG, No. 19 CIV. 3826 (ER), bench opinion, hearing transcript at 72, 2019 WL 2204898 (S.D.N.Y. May 22, 2019)

“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 114, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“It is reasonably clear that ‘legislative subpoenas are older than our country itself[,]’ …and the power of committees of the House of Representatives to conduct investigations that involve issuing subpoenas to witnesses for documents and testimony is similarly well established.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 33, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[T]he historical record plainly reflects that, since the Revolution, judicial review has been available to ensure that the use of compulsory congressional process and/or the invocation of a privilege with respect to compelled performance is consistent with the law.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 53, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[W]e are at a point in history in which the Executive branch appears to be categorically rejecting once-accepted and standard applications of Legislative and Judicial branch authority; therefore, federal courts are being called upon to evaluate novel exercises of Executive power that allegedly threaten the prerogatives of the other branches of government in unique ways. … This reality plainly limits the lessons that can properly be drawn from history.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 87-88, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“[T]he Court cannot accept DOJ’s present reliance on carefully curated rhetoric concerning historical accommodations practices.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 40, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

Watkins also seems to explain the dearth of cases during the two-century period in which DOJ says that lawsuits concerning ‘Congress’ access to information held by the Executive Branch . . . did not exist[.]’ … The absence of recorded federal cases … better supports the far less sensational conclusion that, with respect to legislative subpoena fights, the Executive branch wisely picked its battles.”

–McGahn Case: Comm. on the Judiciary, United States House of Representatives v. McGahn, No. 19-CV-2379 (KBJ), Opinion at 54, 56, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)

“Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office. This court is not prepared to roll back the tide of history.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 24, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“History has shown that congressionally-exposed criminal conduct by the President or a high-ranking Executive Branch official can lead to legislation. The Senate Watergate Committee provides an apt example.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 29, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Courts have grappled for more than a century with the question of the scope of Congress’s investigative power. The binding principle that emerges from these judicial decisions is that courts must presume Congress is acting in furtherance of its constitutional responsibility to legislate and must defer to congressional judgments about what Congress needs to carry out that purpose. To be sure, there are limits on Congress’s investigative authority. But those limits do not substantially constrain Congress. So long as Congress investigates on a subject matter on which ‘legislation could be had,’ Congress acts as contemplated by Article I of the Constitution.”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 3, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Related to Congress’s legislative function is its ‘informing function.’ The Supreme Court has understood that function to permit ‘Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.’ Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). ‘From the earliest times in its history, the Congress has assiduously performed an ‘informing function’ of this nature.’”

–House Mazars Case: Trump v. Comm. on Oversight & Reform, U.S. House of Representatives, Opinion at 16, 380 F. Supp. 3d 76 (D.D.C. 2019), aff’d sub nom. Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019), reh’g en banc denied, 941 F.3d 1180 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019)

“Bared to its core, the proposition the President advances reduces to the very notion that the Founders rejected at the inception of the Republic, and that the Supreme Court has since unequivocally repudiated: that a constitutional domain exists in this country in which not only the President, but derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law.”

–Manhattan DA-Mazars case: Trump v. Vance, Opinion at 8, 395 F. Supp. 3d 283 (S.D.N.Y. 2019), aff’d in part, vacated in part, remanded, 941 F.3d 631 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019)

“The Clause was intended by the Framers to guard against ‘corruption and foreign influence.’”

–Emoluments case: Blumenthal v. Trump, Opinion at 10, 335 F. Supp. 3d 45 (D.D.C. 2018), motion to certify appeal granted, No. CV 17-1154 (EGS), 2019 WL 3948478 (D.D.C. Aug. 21, 2019)

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