President Trump threw his first counterpunch Monday to the flurry of subpoenas that House Democrats issued in recent weeks, filing a federal lawsuit to block the House Committee on Oversight and Reform’s demand for eight years of financial records from Trump’s businesses.
The complaint argues that the committee’s subpoena is an illegal power grab that usurps authority from the Justice Department. This might strike you as richly ironic, if you happen to be alarmed by the president’s expansive view of executive power and his administration’s tendency to act like a law unto itself.
But if you worry about preserving the balance of powers in government and constitutional limits on elected officials, you should probably be rooting for Trump’s legal team on this one. Even though Trump’s complaint reads more like a campaign ad than a legal document, it is founded on an important principle: Congress’ subpoena power exists to support legitimate legislative functions, not prosecutorial fishing expeditions.
Here’s where Trump critics leap out of their seats and howl that the public has a right to know if the president of the United States is a tax cheat who defrauded lenders and remains financially tied to unsavory elements. And they have a point, to a degree. An impeachment investigation would certainly justify the House demanding documents relevant to the truth or falsity of allegations that the president was violating tax law, bending bank rules or putting his own financial interests ahead of the country’s.
But that’s not what Oversight and Reform Committee Chairman Elijah E. Cummings (D-Md.) is doing. The records he subpoenaed from Trump’s accountants at Mazars USA are mainly from the years before Trump became president. And the trail he’s following appears to be the one left by Trump’s former personal lawyer Michael Cohen, who accused Trump of exaggerating the value of some of his properties to help obtain bank loans.
An April 12 memorandum by Cummings outlined the rationale for the subpoena. According to the complaint, the memorandum cited Cohen’s testimony and said the committee needed to find out “whether the president has been accurate in his financial reporting.”
If the issue is whether Trump’s reported his finances accurately as president, why demand any records from the Trump companies prior to 2017? You could even argue that none of candidate Trump’s commercial ventures are relevant to such an inquiry, given that President-elect Trump supposedly removed himself from the operation of those businesses.
The Oversight and Reform Committee has a broad ambit that allows it to scrutinize seemingly everything done by the executive branch. But as Trump’s lawsuit observes, the committee is not the Justice Department.
“But the power to investigate, broad as it may be, is also subject to recognized limitations,” the Supreme Court held in 1955 in Quinn vs. United States. “It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate. Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.”
Now, the House Ways and Means Committee may easily find a valid legislative purpose for looking at Trump’s tax returns — for example, to check the effectiveness of IRS enforcement. And the House Judiciary Committee, as the panel responsible for conducting impeachment hearings on federal officials, obviously needs to be able to subpoena records related to suspected “high crimes and misdemeanors.” (To that end, Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) issued a subpoena Monday afternoon for former White House Counsel Don McGahn to testify about whether Trump attempted to obstruct justice by impeding Robert S. Mueller III’s investigation.)
And as the Supreme Court noted in Eastland vs. United States Servicemen’s Fund, the only relevant question for courts when examining a congressional subpoena is whether it falls within the “sphere of legitimate legislative activity” — even if there’s some blatant politics involved. Chief Justice Warren Burger put it this way: “Our cases make clear that, in determining the legitimacy of a congressional act, we do not look to the motives alleged to have prompted it.”
Nevertheless, the subpoena dragnet by Democrats does seem to reach beyond the borders of executive-branch oversight, particularly the inquiries into Trump’s conduct as a real estate and branding mogul before he became president. It’s obvious why Democrats want to shine a spotlight on whatever bad Trump behavior they can find. But it should also be obvious why we don’t want Congress to have unlimited power to do that.