The Justice Department is ignoring centuries of presidential investigations in an attempt to dramatically curtail Congress’ power to probe President Donald Trump, House Democrats argued Tuesday.
In a new court filing, House lawyers said the Justice Department’s call to invalidate a subpoena for Trump’s financial records was so sweeping it would essentially inoculate presidents from congressional inquiry — reversing precedents that began with George Washington, who submitted to congressional inquiry.
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“These arguments are fabricated out of whole cloth: they may represent what the department wishes the law were, but they are not the law,” House lawyers wrote in a new court filing, accusing the Justice Department of trying to rewrite Congress’ authority to investigate a sitting president.
Trump sued the House Oversight and Reform Committee earlier this year, in his personal capacity, after Chairman Elijah Cummings (D-Md.) issued a subpoena to accounting firm Mazars USA, seeking several years of the president’s financial records. The subpoena came after the president’s former attorney and fixer, Michael Cohen, accused Trump of artificially inflating and deflated the values of his assets in order to win approval for loans — including one in a bid to buy the Buffalo Bills NFL team — or reduce his overall tax burden.
D.C. District Court Judge Amit Mehta, an appointee of Barack Obama, upheld the committee’s subpoena in May, but Trump’s attorneys immediately appealed the decision. The case is currently being heard at the D.C. Circuit Court of Appeals.
Trump’s personal lawyers contended that the committee overstepped its authority by subpoenaing the president’s personal records, arguing that the committee failed to identify a legitimate “legislative purpose” to support their demands. Last week, the Justice Department echoed those arguments, suggesting courts should look dubiously at any efforts by Congress to “regulate the president.”
Trump’s personal legal team endorsed the Justice Department’s argument in a separate filing Tuesday, urging the court to give great weight to DOJ’s claims.
“[T]he lack of any historical support for a legislative subpoena from a standing committee of Congress for the president’s records — directed to a third-party custodian no less — raises constitutional red flags,” Trump’s lawyers wrote, calling the committee’s demands “blunderbuss” and unreasonably broad.
In their response, House General Counsel Douglas Letter and his deputies rejected that as “an astounding and novel theory of limited congressional power to conduct investigations and oversight.”
Letter invoked the St. Clair investigation of 1792, when Washington acknowledged that a House inquiry for presidential papers could be valid “as the public good would permit.” He went on to cite an 1861 investigation of Abraham Lincoln during the Civil War, the Pearl Harbor investigation of 1945, Congress’ access to Richard Nixon’s tax returns, the Iran-Contra investigation of 1987 and the Whitewater investigation that began in 1995 as examples of presidents being targeted by — and at times responsive to — congressional inquiries.
“Presidents from George Washington on (unlike Mr. Trump) have understood that Congress has the power to conduct investigations and oversight of the president as part of the constitutional design,” the attorneys added.
Letter also noted that the argument from Trump’s personal attorneys and the Justice Department suggested that Congress must already know the legislation it wants to pass before it has gathered any facts in its investigation.
“The department’s test is at odds with the Supreme Court’s express recognition that legislatures need facts to legislate wisely—facts that are frequently obtained through investigations,” House lawyers wrote.
They argued, as they have in previous court filings, that Congress has broad investigative authority as a co-equal branch of government.
“[T]he Oversight Committee’s subpoena is an exercise of the House’s Article I power and not an attempt to usurp Executive power,” the House attorneys wrote.