It is the lesser of two evils to let these adversarial matters rest until Trump is out of office, when neither congressional investigation nor any civil or criminal suit could become a fatal distraction to the burdens of the office. As a quid pro quo, the President's pursuers are entitled to a waiver of all statutes of limitations and to an order requiring Trump to preserve all of his documents and records for production once he is out of office.
My position has been soundly rejected by a bitterly divided panel from the Circuit Court of Appeals for the District of Columbia in Trump v. Mazars. There, the majority held that Trump's accounting firm, Mazars USA, must turn over records relating to Trump and his business entities, including the Trump Organization, the Trump Corporation, and the Trump Old Post Office LLC, to the House of Representatives as part of its ongoing effort to develop proposals for legislative reform. Chief Justice Roberts first stayed that decision. That order was followed up by a decision of the entire Court to suspend enforcement of the subpoena, which makes it likely that it will grant the case, no doubt on an expedited basis. When that is done, the Court should reverse the decision below.
To set the stage, the late Congressman Elijah Cummings, head of the House Committee on Oversight and Reform, sent a subpoena in April 2019 to Mazars for Trump's financial documents. The subpoena targeted documents related to whether and how Trump had reimbursed his personal lawyer, Michael Cohen, for hush money payments that Cohen made prior to Trump's election, payments which were reimbursed after Trump became President. That inquiry was then folded into a larger project. Now, the House of Representatives is investigating four related issues prior to and wholly separate from the impeachment inquiry. Cummings wrote that he wished to examine:
(1) "whether the President may have engaged in illegal conduct before and during his tenure in office,"
(2) "whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions,"
(3) "whether [the President] is complying with the Emoluments Clauses of the Constitution," and
(4) "whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities."
Trump then sued both Mazars and the House Committee to block the production of those documents. It looks as though all of Cummings' inquiries should be directed to some kind of criminal prosecution, for which impeachment is the only option against a sitting President. But in this case, a majority of the D.C. Circuit, with Judge David Tatel (a Clinton appointee), writing for himself and Judge Patricia Millett (an Obama appointee), held that so long as there was a valid legislative purpose for the documents requested, Trump's accountants had to turn them over regardless of any other Congressional motive. The sharp dissent of Judge Neomi Rao (a Trump appointee) insisted that the court's ruling was tantamount to a bill of attainder allowing the House Committee to conduct a freewheeling demand for documents that would only be proper within the context of an impeachment proceeding, not a general Congressional investigation.
This dispute raises two related inquiries. The first involves the extent to which Congress may hold investigative hearings incident to its general power to legislate. The second is whether these powers should be at all curbed when the target of the investigation is the President himself. The latter question involves thorny issues of presidential immunity, which are not explicitly addressed in the constitutional text and must be teased out from the Constitution's structure, history, and purpose an obvious source of contention.
The case law on constitutional immunities goes back a long way. For these purposes, the first relevant precedent is McGrain v. Daugherty (1927), where the Supreme Court held that a select Senate committee could investigate the activities of former Attorney General (AG) Harry Daugherty for irregularities in his prosecution of various antitrust violations under the Sherman Act.
After Daugherty had resigned as AG and returned to private life, the Supreme Court allowed the Committee to require Daugherty's brother, Mally Dougherty, an Ohio banker, to turn over key papers because an investigative function was "so far incidental to the legislative function as to be implied." In one sense the decision was easy, because Daugherty was now out of office, so that an investigation of his affairs could not impede an essential government function. But on the other side, the Senate Committee did not explain how that investigation would reveal specific information that would allow Congress to fashion better laws.
In the wake of McGrain, the Supreme Court reviewed constitutional challenges to the many expansive investigations by Congressional committees of alleged Communists during the 1950s. In the 1959 case of Barenblatt v. United States, the Supreme Court, by a five-to-four vote, regrettably upheld a conviction of Lloyd Barenblatt, a young professor, for refusing to answer questions propounded by the House Unamerican Activities Committee (HUAC) as to whether he had at any time ever been a member of the Communist Party or knew, going back to the 1940s, of others within universities who were members of the Communist Party. The impassioned dissent of Justice Hugo Black castigated a "blind" Court for not seeing that HUAC's activities "amount to an encroachment on the judiciary which bodes ill for the liberties of the people of this land."
How times have changed! Now we have Judge Tatel, a liberal, relying heavily on the conservative Barenblatt opinion to justify the House's investigation of President Trump, even though its ends are so diffuse that it is hard to see how anything contained in Trump's documents would lead to useful legislation. Judge Tatel notes, for example, that Congress was considering legislation to "require both sitting Presidents and presidential candidates to â€˜submit to the Federal Election Commission a copy of the individual's income tax returns' for the preceding nine or ten years, respectively." Ironically, a unanimous California Supreme Court recently struck down under the California Constitution a state law that would have required all presidential candidates to hand over their tax returns in order to participate in the state's primaries. Congress need look only to this decision to see that its own parallel investigation is off limits.
The majority in Mazars is on equally shaky ground when it addresses a key element missing from both McGrain and Barenblatt the application of some form of immunity to a sitting President. This issue was front and center in the 1974 case Senate Select Committee on Presidential Campaign v. Nixon, where the D.C. Circuit Court, speaking through Chief Judge Bazelon, rebuffed the Select Committee's efforts to obtain the "original electronic tapes" of President Nixon's conversation with his former Counsel, John W. Dean. The Court rejected that claim, noting that any need of the Select Committee "is too attenuated and too tangential to its functions to permit a judicial judgment that the President is required to comply with the Committee's subpoena." Judge Tatel seeks to snatch victory from the jaws of defeat by insisting that the Select Committee's loss in this first Nixon case "strongly implies that Presidents enjoy no blanket immunity from congressional subpoenas."
But in the Trump case, the balance is quite different. First, the House's case for getting Trump's tax returns is far weaker than any demand for specific conversations between Nixon and Dean, which notably were sought late in the Senatorial investigation and were virtually guaranteed to contain direct evidence of criminal misconduct. By the same token, Trump's claim for privilege is also more limited. A successful claim of executive privilege continues to remain in force even after a President leaves office. But Trump's claim of privilege for these tax documents ends when he leaves office and thus becomes subject to federal and state criminal prosecutions. To be sure, neither presidential privilege is "absolute." Just two months after Senate Select Committee, Nixon lost a similar plea for executive privilege in United States v. Nixon, in which Nixon was listed as "an unindicted coconspirator" shielded from prosecution while still in office.
Yet state prosecution may be close at hand, for side-by-side with the House initiative is a second, independent case, Trump v. Vance, in which Cyrus Vance, the New York State District Attorney for Manhattan, seeks to obtain Trump's tax records as part of his grand jury investigation of possible crimes stemming from the same Michael Cohen payment of hush money to two women. A unanimous Second Circuit declined to temporarily enjoin the investigation because Trump could not show that he was either likely to win on the merits or that he would suffer irreparable harm by allowing the investigation to continue.
In so doing, the court relied on the 1997 case of Clinton v. Jones, where the Supreme Court refused to postpone Paula Jones' lawsuit for defamation and sexual harassment so long as Clinton was President. The subsequent discovery hearings led to the misguided impeachment effort against Clinton, who ultimately committed perjury in testifying about his personal involvement with Monica Lewinsky in a deposition that could have easily waited until he left office.
The same principles apply here. It is undisputed that Trump cannot issue a self-pardon against state offenses. But the prospect of multiple lawsuits against the sitting President would further disrupt his already chaotic Presidency. The Second Circuit rightly noted that historical practice insulates the President from criminal prosecution and from attending trial or giving testimony. But in Vance's application, the Court insisted that the President is asked to do nothing at all it is only his accountants who have been asked to turn over his papers.
It is highly doubtful that the President could be asked to turn over the tax returns in his possession, and therefore it is legally otiose for the Court to claim he forfeits that privilege when he shares those papers with his accountants in the ordinary course of business. The Court refused to recognize any privilege against resisting "an otherwise valid subpoena for private and non-privileged materials simply because he is the President." But here, that "simply" is simply too much the work of the President must go on.
Tellingly, the Second Circuit never explained whether subpoenas could be issued by other state courts, whose contents could then be used to justify a state's issuing an unenforceable indictment against the sitting President. This prospect should be blocked by U.S. v. Nixon. It should be quite sufficient to require the accountants to retain the papers until the legality of the subpoena is resolved once Trump is out of office. Sadly, the current House and state court proceedings, especially in tandem, go too far in undermining the institutional independence of the President under our established constitutional order.
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