On Friday, the U.S. Court of Appeals for the D.C. Circuit upheld the enforcement of the subpoena for Trump’s tax returns issues by the House Committee of Oversight and Reform in a case captioned Trump v. Mazars USA, LLP (the “Mazars Case”). The three judge panel split 2-1, with Judge Neomi Rao dissenting. (The link at the D.C. Circuit’s website pulls up both the opinion of the Court and the dissent as a single file. For ease of use, I have broken that file into separate files. The Court’s opinion can be downloaded here. The dissent can be downloaded here.)
Judge Rao’s dissent is premised solely on what she believes is a limitation on Congress’ legislative power. She makes a distinction between the legislative power of Congress and what she terms its judicial power. Among the areas in which she believes that the judicial power can be exercised is that of impeachment. Thus:
[A]llegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. The House may impeach for “Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. CONST. art. II, § 4, and has substantial discretion to define and pursue charges of impeachment. See The Federalist No. 65, at 338 (impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself”). While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process. Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” To make this determination requires no search for hidden motives, but simply crediting the Committee’s consistently stated purpose to investigate “illegal conduct” of the President. Cummings Memorandum at 4; cf. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”).
Dissent slip op. at 6-7 (footnotes omitted).
I do not know whether the distinction that Judge Rao draws is valid. However, why do we even have to address that point now? When the subpoenas at issue in the Mazars Case were first issued, the House had not begun to explicitly investigate the possibility of impeachment. That is no longer the case. In response to Judge Roe’s dissent, the House Oversight Committee should simply issue a new subpoena seeking the same documents that were the subject of the first subpoena. The new subpoena would lack the infirmity that Judge Rao perceived in the subpoena at issue in the Mazars Case and her objections to that original subpoena would therefore be moot. The House could then get on with the pressing task of investigating whether Trump should be impeached. (Yes, I know that the White House Counsel has issued a letter refusing to cooperate with the various constituent parts of the impeachment investigation because, inter alia, there really isn’t a valid impeachment investigation. I suspect that this argument would not be tossed aside lightly by any reviewing court. Rather, it would be thrown aside with great force. Cf. here.)
Why bother? This convoluted, “novel” argument didn’t succeed at the appellate level. And any higher jurists with whom it might find favor would be perfectly willing to have their clerks concoct some other pretext. (For example, that any records prior to the date of the impeachment inquiry are irrelevant and only being requested for an illegitimate-yet-justiciable political purpose that the court can unambiguously divine.)