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Symposium: No. The founders did not want Congress doing criminal investigations – even of Trump

Burlette Carter is a professor emerita of law at the George Washington University Law School and author of “Can a Sitting President Be Federally Prosecuted: The Founders Answer.” She filed an amicus brief in support of reversal in Trump v. Mazars.

On March 31, the Supreme Court will hear oral argument in Trump v. Mazars and Trump v. Deutsche Bank. These consolidated cases involve subpoenas issued by three House of Representatives committees: the Committee on Oversight and Reform, the Permanent Select Committee on Intelligence and the Financial Services Committee. The subpoenas seek the personal financial records of President Donald Trump relating to periods both before and after he became president. Trump challenges them in his personal capacity and argues, among other things, that the House is violating separation of powers by impermissibly pursuing a law-enforcement function. Both the U.S. Court of Appeals for the District of Columbia Circuit in Mazars and the U.S. Court of Appeals for the 2nd Circuit in Deutsche Bank have upheld the subpoenas. But in my amicus brief, I raise a novel question of whether the committees had subject matter jurisdiction to issue the subpoenas under either House rules or the impeachment clause of the Constitution. I also argue that, unfortunately, the focus on Trump has obscured the real threat that such a broad construction of committee powers poses to the constitutional rights of ordinary American citizens.

To appreciate these concerns, one must briefly review the facts. These subpoenas arise out of various efforts by House Democrats to investigate Trump. During the 2016 campaign, unlike other candidates, Trump did not voluntarily disclose his tax returns. Rumors later swirled that they reflected financial improprieties. In 2018, Trump was publicly accused of failing to report, as a 2016 campaign contribution, a payment made on his behalf by former lawyer and business associate Michael Cohen. Allegedly, Cohen made the payment to silence a Trump mistress. In May of 2018, the director of the Office of Government Ethics, responding to a complaint from an advocacy group, concluded that the Cohen “loan” should have been reported as a campaign contribution. The director so advised the Department of Justice, but it had previously concluded that the president cannot be prosecuted while in office. As the minority party, Democrats made several unsuccessful attempts to investigate these and other matters related to Trump.

Democrats won a House majority in the 2018 election. In January 2019, through little-noticed changes contained in House Resolution 6, the House amended Rule X(3)(i), which defined “special oversight functions” of the Oversight Committee. Originally, the rule provided that the Oversight Committee would “review and study on a continuing basis the operation of Government activities at all levels with a view to determining their economy and efficiency.” The 2019 amendments struck the words “with a view to determining their economy and efficiency” and replaced them with “including the Executive Office of the President.” Another amendment eliminated the word “Government” from the name of the Oversight Committee. Instead of the “Committee on Oversight and Government Reform,” it became the “Committee on Oversight and Reform.”

In February, the House leadership’s longstanding efforts to secure the informal cooperation and formal testimony of Michael Cohen paid off. Cohen had already pled guilty to lying before congressional committees investigating Russian meddling in the 2016 election. But before the Oversight and Intelligence Committees, Cohen did more than correct that prior testimony and testify about the 2016 “hush money.” He also accused Trump of committing various financial crimes prior to assuming the presidency. He provided or verified the names of financial institutions with which Trump, his family and Trump-related entities dealt. (Rumors had been reported in the press.) He provided documents from his files. All this occurred without concern as to privileges. The subpoenas of the three committees in these cases followed that testimony. After the testimony, on July 24, 2019, the House passed House Resolution 507, which purported to retroactively “affirm the validity” of all committee subpoenas.

In August of 2019, House Judiciary Committee Chair Jerry Nadler stated on Erin Burnett’s show, OutFront, that his committee was conducting formal impeachment proceedings. In September, Speaker of the House Nancy Pelosi announced that she was directing “six committees to proceed with their investigation under [the] umbrella of impeachment inquiry.” Pelosi focused on allegations that the president had sought the aid of a foreign government in interfering with elections.

The whole House did not speak again until October 10. In House Resolution 660, it “[d]irect[ed] certain committees to continue their ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump … and for other purposes.” Note that  H.R. 660 appeared to be another attempt to ratify prior committee actions.

We must adjudge the committees’ claims against this backdrop. First, let us consult constitutional history. The British Parliament had the power to bring and investigate criminal charges against any individual. That power was called its power of impeachment. It shared this power with crown prosecutors and common law courts. The Founders rejected this model, narrowing the meaning of “impeachment” to crimes committed by government officials while in office. As for the parts of the Parliament’s impeachment power that affected ordinary citizens, the Founders centralized that power in the executive and judicial branches. They recognized this division of power when they provided in Article I Section 3 of the Constitution that, after a conviction and removal by impeachment, a president will be subject to “Indictment, Trial, Judgment and Punishment” in common law courts. This history indicates that Congress has no power to conduct criminal investigations outside of impeachment.

Second, impeachment was a “high privilege” of the British House of Commons. It is also a high privilege of the House of Representatives. Indeed, under Article II Section 2 Clause 5, the House has the “sole right” to impeach. This privileged status compels the conclusion that committees with only general jurisdiction cannot decide for themselves when their own impeachment or prosecutorial jurisdiction begins. At a minimum, they need specific jurisdiction.

Third, the Founders went further. Having experienced unfair crown prosecutions as British subjects, they set forth constitutional protections for the accused in common law trials. It would be odd indeed for the Founders to have done so, but then to have given Congress, with its well-recognized political aspects, broad power to wade into criminal prosecutions outside of impeachment. Congressional investigations could very easily undermine the rights of the accused and the public to a fair trial.

Fourth, the committees’ actions do not measure up well against traditional notions of “oversight” jurisdiction. “Oversight” has traditionally meant the authority to investigate matters of general applicability, not the authority to investigate specific accusations of personal misconduct. Notably, the words House Democrats struck in the January 2019 rules amendments mentioned above—“with a view toward determining their economy and efficiency”—date back to the Legislative Reorganization Act of 1946. Those words clearly indicate a focus on the conduct of the government and its officials, not private misconduct. Consistently, Gales & Seaton’s Register of Debates in Congress reports that in 1831, former President and then-Representative John Adams said, “This House had not and he hoped there never would be occasion for a standing committee of impeachment.”

Fifth, the plain language of the 2019 House amendments does not support the committees’ broad view of oversight. The term Democrats inserted, “the Executive Office of the President,” cannot reasonably be read as referring to actions by the president, or anyone else, in a personal capacity before being elected.

Finally, the House Judiciary committee opined in 1973 that an officer cannot be impeached for actions taken prior to assuming the office. An exception might exist in a case of a continuing violation that affects the presidency, but in these cases the committees did not utilize impeachment jurisdiction.

The Supreme Court has held that a decision by a tribunal lacking subject matter jurisdiction violates due process. A first-year law student knows that, constitutionally speaking, one cannot retroactively fix a subject matter jurisdiction defect.

Citing cases proclaiming Congress’ broad powers to investigate when there is a legislative purpose, the committees frame these cases as mere inquiries about possible future legislation. The claim does not pass the smell test. But also, past cases involved impeachment or specific legislative authorizations, did not involve rights of an accused, or are otherwise distinguishable. The rest of the Constitution is not eclipsed by the fact that Congress can find a legislative purpose for its actions.

The committees also claim that the Oversight Committee’s oversight jurisdiction is coextensive with that of the entire House. If that is true, it swallows up the Constitution, and apart from invading individual rights, it would provide majority parties a surefire way to deprive minority members of their absolute privilege to vote and participate in determining House actions.

In short, in addition to the separation of powers, (1) a House failure to delegate authority, (2) the impeachment clause’s restrictions on House prosecution powers and (3) individual rights secured under the Constitution all are concrete jurisdictional barriers to these subpoenas. The court should find that broad assertions of “legislative purpose” simply cannot survive these constitutional collisions.

Recommended Citation: Burlette Carter, Symposium: No. The founders did not want Congress doing criminal investigations – even of Trump, SCOTUSblog (Mar. 10, 2020, 1:00 PM),