President Trump has effectively said he will not comply with a plethora of Congressional subpoenas. He refused to turn over a full copy of Mueller Report and all supporting documents to the Judiciary Committee. He’s also sued banks to prevent production of business records to Congressional Committees. And, he has argued that the Ways & Means Committee’s demand to see his tax returns was invalid.
If, as expected, those disputes wind up in court, the Trump administration is almost certain to lose those fights. In fact, a judge has already ruled that an accounting firm must comply with a Congressional subpoena for Mr. Trump’s financial records. This is not surprising. The law and decades of court decisions are all stacked against the President.
The Mueller Report Dispute
Shortly after Attorney General William Barr made the final report of Special Counsel Robert S. Mueller III public, the House Judiciary Committee issued a subpoena for an unredacted version of the report. It also requested all the evidence Mr. Mueller used to conclude that the Trump campaign did not colluded with Russia during the 2016 campaign and to analyze whether the President obstructed, or attempted to obstruct justice.
The Attorney General first said that to produce the report and its evidence would violate Rule 6(e) which bars the release of materials presented to grand juries. That argument may not fly. The Oversight Manual – The Bible for congressional investigators produced by the Congressional Research Service – says that Congress has a right to obtain grand jury evidence. CRS notes that federal courts have “held that when Congress is acting within the ‘legitimate sphere of legislative activity’ it is legally entitled to Rule 6(e) information.”
What is Legislative Activity?
That raises the question of what exactly constitutes “legislative activity.” Essentially if a committee is acting within its mandate, it has broad authority to ask for any information it wants. The Supreme Court has held that “the scope of [Congress’] power of inquiry . . . is as penetrating and far-reaching as the potential power to enact and appropriate under the constitution.”
The Court also has said the power to investigate is at its height when Congress seeks to expose government corruption. In particular, the High Court pointed to the First Congress’ investigation of “suspected corruption or mismanagement of government officials,” and specifically recognized the power of Congress to “publicize corruption.”
Under Article I of the Constitution, Congress sets its own rules. The current House Rules say the judiciary committee has jurisdiction over the federal courts and judicial proceedings, civil and criminal. Special Counsel Mueller’s report is clearly a criminal matter.
The Judiciary Committee is one of a handful of committees that grant the Chairman, and the Chairman alone, the authority to issue subpoenas. Clearly the subpoena for the Mueller report is Constitutional and the Judiciary Committee chairman acted within his authority.
Limits of Executive Privilege
The Congressional Oversight Manual notes that executive privilege can only be asserted on documents and communications that are authored by or solicited and received by the President or presidential advisors. Courts have held that the word “advisers” only covers White House aides, not cabinet secretaries or their employees. It also does not include “documents that were created and distributed solely within an executive department.”
Mueller received his charter from the Deputy Attorney General after then-Attorney General Jeff Sessions recused himself. The Special Counsel was an employee of the Department of Justice, an executive branch agency. Mueller submitted his report to the AG, who is the cabinet secretary in charge of DOJ. Attorney General Barr decided to make the report public. All of which means executive privilege does not necessarily cover the report. However, some of the interviews with the President’s immediate staff may contain materials that are subject to it.
The Bank Subpoena Dispute
Reps. Maxine Waters and Adam Schiff, chairmen of the House Committee on Financial Services and the House Permanent Select Committee on Intelligence respectively, both issued subpoenas to Deutsche Bank and Capitol One compelling the production of President Trump’s financial records.
Trump sued to block the banks from turning over the records on the grounds that the demands serve no legitimate legislative purpose. This author need not reiterate what is a legislative purpose. Suffice it to say the Financial Services Committee has broad jurisdiction over the banking industry, including illicit use of banks, and the Intelligence Committee has an ongoing investigation into allegations of Russian interference in the 2016 elections, including whether the GUR used banks in furtherance of those efforts. The subpoenas thus have a legitimate legislative purpose.
The Financial Privacy Act forbids banks from producing documents pursuant to an administrative subpoena without first notifying the account holder and allowing them to challenge the demand. Federal courts have ruled that provision does not apply to congressional subpoenas, and the House Counsel agrees.
Tax Returns? You Can’t See My Tax Returns
Congress clearly can obtain the full Mueller report and Trump’s financial information. But the issue of his tax returns is more nuanced.
There are two applicable laws. One specifically grants the Ways & Means Committee the authority to obtain copies of any person’s tax returns. That statute, Section 6103 of the IRS Code, also covers the tax returns of corporations, non-profits and other entities. The other law mandates the IRS annually audit a President’s tax returns.
If the Ways & Means Committee wants to obtain Mr. Trump’s tax returns in order to make them public ˗ as some Members implicitly said they would ˗ the President may be on solid legal ground. Section 6103 allows Congress to obtain tax returns, not make them public. The issue of whether Congress can unilaterally release someone’s tax returns without their permission has never been litigated.
Ways & Means also is using the presidential audit provision as a means of justifying its subpoena of Trump’s tax returns. There is one potential problem with that rationale: the law covers a President. Donald Trump did not become president until shortly after noon on January 20, 2017. The committee can see if the IRS fulfilled its mandate to audit Trump’s returns from that date forward, but not before.
Congress can only enforce its subpoenas through a contempt proceeding. A committee must vote out a contempt report and resolution, and then the full House must adopt it. If that happens, the House can use one of its two powers: inherent contempt or civil contempt.
Under inherent contempt, the House orders the Sergeant-at-Arms to arrest the person held in contempt, bring them before the body for what amounts to a trial and, if the person still refuses to cooperate, they can be imprisoned in the Capitol Jail. Congress hasn’t exercised its inherent contempt powers in nearly a century, and no one knows whether the Capitol Jail actually exists.
The only other enforcement avenue is civil enforcement, where Congress goes before the district court and obtains a compliance order. The most recent contempt court fight was between the House Oversight and Government Reform Committee and then-Attorney General Eric Holder. Back in 2012 the committee subpoenaed Holder to compel production of documents related to Operation Fast and Furious run by the Bureau of Alcohol, Tobacco, Firearms and Explosives. DOJ handed over the subpoenaed records. On May 9, 2019.
Congressional subpoenas expire the same date as the Congress that issued them. The subpoenas issued by the Judiciary, Financial Services, and Intelligence Committee thus expire on January 2, 2021. If the Holder case is any guide, Congress may win the court battle over its current subpoenas, but Trump may win the war.