Congressional Oversight Goes to Court

Even with the end of the impeachment trial, legal battles over access to the President's financial records and other documents continues.

Despite the Senate's vote to reject the two articles of impeachment of President Trump, numerous lawsuits seeking access to White House and other records continue. On March 31, the Supreme Court will hear oral argument in three cases concerning the ability of Congress and a New York grand jury to obtain the President's financial records (Trump v. Mazars, Trump v. Deutsche Bank, and Trump v. Vance). Meanwhile, other cases pending in the District of Columbia concern efforts to obtain material related to the Mueller investigation.

Last month, I participated in half-day conference organized by the Levin Center at the Wayne State University Law School on "The Emerging Caselaw of Congressional Oversight," with Professors Victoria Nourse, Kirsten Matoy Carlson, and Andrew Wright. Video of the full event is available here.

For more information on the various cases, the Levin Center has also put together a useful website with documents and summaries of the issues in these and other cases concerning Congressional oversight. It's a useful resource for more information on the legal issues concerning the scope of legislative oversight of the Executive Branch, and President Trump in particular.

Comments

[Lee Moore]

Having had a quick skim through Article 1, I didn't spot any mention of "investigation" or "oversight" at all. Not a one.

Nor did I spot any mention of a Congressional power to soap up nubile teenagers. But, it seems, that doesn't mean there isn't one.

[Jonathan H. Adler]

I discuss this on the panel. Oversight of agencies created and funded by Congress is necessary and proper to the exercise of the power that allowed for the creation and funding of those agencies, and has been understood as such from the founding.

[Lee Moore]

Isn't this backwards ? I can see that oversight is arguably relevant to the exercise of the legislative power in the future, but it can hardly be relevant to the past exercise of the legislative power that gave rise to the thing being overseen.

In any event, even if oversight is indeed N&P, the rest of the analysis must be statutory.

[Dilan Esper]

Doesn't it work the same for both past performance and future power? They are both relevant to new legislation.

Let's say there's a completely wasteful Pentagon program. (I know, totally hypothetical. 🙂 ) Congress subpoenas documents to determine the extent of the waste and how it happened, and then uses the results of that investigation to write a new bill that cracks down in some way. Why isn't that classic oversight?

[Lee Moore]

I think we are in agreement, I'm just quibbling about Prof A's formulation :

Oversight of agencies created and funded by Congress is necessary and proper to the exercise of the power that allowed for the creation and funding of those agencies

which implies that oversight of the CIA in 2020 is N&P to the exercise of the legislative power that enacted the National Security Act in 1947. Which seems unlikely.

But I agree it may be N&P to Congress's future legislative activity.

[Lee Moore]

I see looking at that clip that you do distinguish between oversight of the departments and agencies that Congress has created, and oversight of the President (which Congress has not created.)

But in the discussion of where the courts might hold back and say - this is about imeachment, the House has admitted it's about impeachment, we must stay out of it - there's no discussion of what code section this or that says about what the House can do and who they can do it to, in the course of their impeachment investigation.

But if there's a statute giving the House these powers, you'd expect the words of the statute to form a big part of the discussion. A lot bigger than how comfortable the court might feel about expressing an opinion, not about some constitutional power granted to a co-equal branch, but about a statutory power granted by law, which has given rise to a case or controversy, because the person on the sharp end of the exercise of the House's statutory power disputes the House's statutory claim.

Why would the courts be shy about getting involved in a case or controversy about a dispute about the application of a statute ?

[NToJ]

"But if there’s a statute giving the House these powers..."

Current law is that oversight is part of the House's constitutionally implied powers. So the "statute" is the Constitution. But that being the case, you walk right back into why the court's comfort "about expressing an opinion" about a constitutional power granted to a co-equal branch.

Now, there do happen to be statutes that Congress uses, sometimes, because if a coordinate branch doesn't respond, Congress wants to take that fight to the federal judiciary. So in the Mueller Gran Jury Case, they resort to Fed. R. Crim. Proc. 6(e). And the DOJ does spend a lot of its time arguing about the substance of that Rule, and specifically what it does or does not authorize. As does the House's appellate brief. (I think it's neither here nor their, but the DOJ and the House are welcome to join issue on the battlegrounds of their choosing.)

I think we all need to be more precise about what we're talking about. Maybe Professor Adler can elaborate (or you can) on what is meant (precisely) by "be shy about getting involved"? I don't think courts are going to have a hard time interpreting statutes. I do think they're going to be reluctant to tell Congress or the President what is an appropriate place to look for impeachable evidence, or what impeachable conduct is, given the Constitution's sole grant of that power to the House.

[Lee Moore]

Maybe Professor Adler can elaborate (or you can) on what is meant (precisely) by “be shy about getting involved”?

I'm referring to Prof Adler's remarks in the video of the event, starting at 1.23.18 and going on for about 45 seconds, in which he advances the argument (not his own, he's reporting) that as soon as the House mentions impeachment, lots of barriers to the House getting information that might otherwise apply, suddenly melt away.

Nothing statutory is mentioned here, and so I deduce that the word "impeachment" has acquired its magic power from the Constitutional language about "sole power of impeachment."

Which, as you say, may well be right under the implied constitutional implied powers doctrine. But not under the Moorean doctrine that you need to get statutory powers under the N&P clause. I accept that this theory - though textually unimpeachable 🙂 - is eccentric.

Making it all the more gratifying that both Prof Adler and Justice apedad jumped straight in with N&P as the answer to where Congress's investigatory and oversight powers sprung from.

Your answer is much more consistent with the "magic word impeachment" argument - unless unbeknownst there is an actual statute that says "say the magic word impeachment and all doors must open."

But your answer is also consistent with the justice of my complaint - which you have been admirably patient with in two threads - that there is in fact not a syllable in Article 1 about investigatory or oversight powers, and that the courts have found them in the penumbra.

Which I maintain the courts have no business doing, and more so since the Constitution actually provides a cupboard marked "Extra Powers if You Need 'em" which is locked with a padlock carrying the message "if you want anything from this cupboard, go to the trouble of passing a law."

[NToJ]

I understand that we have a disagreement and you've presented your case well, I just disagree with it. I don't have much more to add to previous discussions. Save for two additional points. I think it is inescapable that there are implied powers in the Constitution for two reasons. First, the document is too short to list out in detail every means through which a constitutional end can be met. The "sole power of impeachment" surely entitles the House to decide how to count its own votes. And subjecting that process to legislation--which requires consent by the Senate--does violence to the Constitution's "sole" portion. Put differently, the argument that there are no implied powers requires you to read other portions of the Constitution out. If that's true, the issue is not with the existence of implied powers, but only their scope. (For another example, the required 2/3rds authorization "of the Senators present" on making treaties cannot be subject to legislation, because it would result in 1/2 the House being able to override any Senate approval of treaties. Same with Senate impeachment. I don't assume that Congress must pass legislation to dismiss an impeachment trial, otherwise the House would just gum it up.)

Second, the N&P itself is strong textualist evidence of implied powers. The N&P is a grant and not a limitation on power. If Congress's power to effect its enumerated powers was limited to the power to pass laws that were N&P, then the N&P clause would be written differently, and would (in ordinary syntax) precede the enumerated powers. Importantly the N&P is intentionally not limited to the Article 1 Section 8 powers, but all others ("and all other Powers vested by this Constitution..."). So the clause itself assumes the existence of Powers that Congress has, independent of the power to enact laws.

Again, the structure and text leads me inescapably to implied powers. And SCOTUS's involvement in the extent and scope of implied powers is uncontroversially (in my view) going to be self-limiting to the largest degree when SCOTUS is asked to resolve matters of degree over power plainly given to a coordinate branch or sub-branch ("sole"). Even moreso when SCOTUS is assigned some role in the process, but one that is expressly less than full-out judicial review ("shall preside").

Finally, I think a place we seem to agree is that "the courts have no business". I think their role should be limited. Even if the Constitution contemplates a limited remedy for Congress, it also provides the remedy (through elections). SCOTUS self-restricting itself is something we should both be celebrating.

[Lee Moore]

The “sole power of impeachment” surely entitles the House to decide how to count its own votes. And subjecting that process to legislation–which requires consent by the Senate–does violence to the Constitution’s “sole” portion. Put differently, the argument that there are no implied powers requires you to read other portions of the Constitution out.

We’ve already covered the point that Article 1.5 explicitly gives each House the power to set its own rules, including rules about vote counting. We don't need to assume any implied power about how to count votes. It's explicit.

But suppose Article 1.5 didn’t say that – suppose it said “The Senate may determine the rules of proceedings in the House and in the Senate.”

Would the Senate’s power to specify the vote counting rules in the House violate the House’s “sole power of impeachment” ? Obviously not. The House is what it is; its membership is not within the House’s control; and in my scenario even its rules are not within its control – but it still has the sole power of impeachment.

And while we’re passing by, I’ll note that there seems to be much, and mystifying, confusion about what “sole” power means. Sole is not a synonym for absolute. The President has the sole power to appoint judges, but it is conditional on the Senate’s consent. He does not have absolute power, he has conditional power. But it’s still sole power. It’s exclusive to him. Nobody else may do it. The fact that somebody else may stop him from exercising it does not stop it being a sole power.

You will recall the shenanigans about whether “impeachment” was complete on the passing of the resolution in the House, or whether it required delivery at the bar of the Senate. If the latter is correct, the Senate can block an impeachment simply by declining to admit the House managers into the Senate. Would refusing to admit the House managers infringe the House’s “sole” power of impeachment ? Of course not. Sole is not the same thing as absolute.

So, no, failing to conjure up implied powers does not read “sole power of impeachment” – or anything else, out of the Constitution.

[Lee Moore]

The N&P is a grant and not a limitation on power.

Agreed

If Congress’s power to effect its enumerated powers was limited to the power to pass laws that were N&P, then the N&P clause would be written differently, and would (in ordinary syntax) precede the enumerated powers.

Not agreed. It makes perfect sense to tack an incidentals power on at the end of a list of specific powers.

Importantly the N&P is intentionally not limited to the Article 1 Section 8 powers, but all others (“and all other Powers vested by this Constitution…”).

Correct.

So the clause itself assumes the existence of Powers that Congress has, independent of the power to enact laws.

It’s “all other powers vested by this Constitution in the government of the United States” – ie all three branches. Establishing that it is not just Congress that needs an actual law to create N&P powers, it’s all the bits of the government. I see nothing at all in this wording that implies that assumes the existence of unwritten powers. To the contrary – if there are implied powers, across the government, to do anything that is N&P to carry into execution any of the explicit powers, then the N&P clause is redundant.

I'm afraid I didn't follow your treaty approval point.

[anorlunda]

JONATHAN H. ADLER said: "Oversight of agencies created and funded by Congress is necessary and proper to the exercise of the power that allowed for the creation and funding of those agencies, and has been understood as such from the founding."

Congress did not create the presidency. How is that argument about agencies relevant?

[Lee Moore]

He draws attention to that very point in the panel.

I'm not sure it's a very powerful point, because once you accept that the N&P power can only be relevant to future legislation not past legislation, thee's no reason why Congress shouldn't be thinking about legislating to control how the President does things, and wanting to investigate first.

(No reason that is apart from possible limitations on stepping on a co-equal branch's constitutional powers. )

[apedad]

Skim over to Section 8, last paragraph.

". . . necessary and proper. . . . "

[Lee Moore]

Sure, but as I have been discussing with NToJ on another thread, reliance on the N&P clause requires :

(a) that the supplementary power is indeed N&P for the exercise of the enumerated power and

(b) an actual statute.

The N&P clause does not allow for the spontaneous discovery of new powers, it allows for new powers to be created by statute.

Thus if and when you have leapt over the constitutional hurdle of necessaryness and properness, the legal analysis is statutory.

[Krayt]

On the other hand, there is loads of Constitutional content, including at least two of the Bill of Rights, designed to stop the king from investigation uppity opponents. That would apply in the reverse direction as well.

Several senators and state investigators have expressed their joy at hurting via investigation, giving lie to the idea it's all disinterested law enforcement.

You can't break attorney client privlege...unless it's someone really powerful and you really, really wanna get them. Which is the core reason behind these amendments.

The Founding Fathers tried, really they did.

[Stephen Lathrop]

Krayt, if you suppose anything in the Bill of Rights was meant by the founders to succor opponents of the People's sovereignty, that extraordinary claim will have to be supported by extraordinary evidence. I doubt you can find it.

[Armchair Lawyer]

This will be an interesting case.

On one hand, Congress does have oversight authority.

On the other hand, it's pretty clear that Congress only wants these records for their political value in attacking the current president. And weaponizing the IRS this way is simply not a good idea.

I'd support Congress being able to look at them, but not Congress being able to release them publically or "leak" them. Unfortunately, it's not clear that there is a way for this to happen, given the current law.

[Brett Bellmore]

What with the speech and debate clause, once a member of Congress knows something, there's no way to prevent them from revealing it, there can be no legal penalty. And if the majority in their chamber are OK with them revealing it, they won't face even internal sanctions.

So, letting Congress have Trump's financial records is functionally equivalent to releasing them.

[Armchair Lawyer]

That's the problem.

Perhaps a limited compromise could be made. The Congressmen can look at the records in a room, but the records can't be removed, and no notes can be taken or removed.

[Brett Bellmore]

I don't think it would work.

I'm not saying that it couldn't be made to work, if House Democrats really wanted this information for perfectly legitimate reasons, and were willing to implement controls to make sure it wouldn't be leaked.

It won't work because they rather transparently want the information just to go looking through it for politically embarrassing stuff to leak, and any claims of oversight are just pretext. So there's no chance at all they'll agree to a process that would prevent leaks, leaks are the whole point of the exercise.

[Armchair Lawyer]

I agree with the motivations. But leaking something from memory (as opposed to full notes and/or full documents) is typically much weaker, and a bit harder.

The other option is to allow a team forensic accountants chosen by the Democrats to look at the returns in a sealed room, and allow them issue a report regarding any criminal activities. In addition, the law may allow for the accountants to be criminally/civilly liable for any leaked confidential information. (The law is a bit grey there).

What's important here is that the Democrats don't have to "agree" to it. It would be a court decision.

[NToJ]

"...and any claims of oversight are just pretext."

But Brett, you insisted that where the President is concerned, you can't assume ill motives just because he's trying to find corruption by the Bidens, even if it turns up information that is "politically embarrassing". Why is pretext suddenly relevant? And why isn't it the case that if there is "politically embarrassing stuff", that the American public has no "perfectly legitimate reason[]" to want to see it? Isn't the phrase "politically embarrassing stuff" a concession that the information in it is politically relevant?

[Brett Bellmore]

I can assume ill motives when the House attempts to get at Trump's tax records predating his becoming President, and the tax records of his family, too.

[NToJ]

But what if they were just trying to root out tax fraud, similar to how the President's interest in Biden was, in your view, consistent with anti-corruption?

[Armchair Lawyer]

"What if they were just trying to root out tax fraud"?

That's actually a different argument, and gets to the basis of the separation of powers. In short, Congress makes the laws, and the Executive branch executes them. The executive branch does not make the laws. Congress does not execute them.

Congress does not "root out tax fraud". That's executing the laws, and the job of the executive branch. Congress has oversight over the federal bureaucracy, but that's a much different beast from Congress taking over the role of the Executive branch to undertake investigations of selected private citizens themselves for tax fraud.

[apedad]

". . . there can be no legal penalty."

If it's unlawful to release tax documents, then they can be prosecuted (just not arrested while they are in session).

[Brett Bellmore]

No, they can't. If they release them by discussing them on the floor of the chamber, they're totally immune to legal consequences. See Gravel v. United States, for instance.

Yes, if they released the tax documents someplace else, they could be prosecuted. But not if they do it in chamber.

[Sarcastr0]

The Speech and Debate Clause is intended as a shield of the legislature. To use it as a sword for the Executive to wield against the legislature is not indicated by the text or Founders documents at all.

[FlameCCT]

I hear ya. It appears that many Progressive Democrat House members are following in the footsteps of Sen. Leaky Leahy.

[Sarcastr0]

Animus and pretext are apparently not a thing, so your case goes against current law, even were it supported by more than partisan grievance.

[anorlunda]

Can necessary and proper be used to oversee the judiciary? Can congress demand transcripts of deliberations?

[Lee Moore]

I don't see why not.

Congress has the power to ordain and establish inferior courts, so on the same logic as it may want to keep an eye on an executive branch agency for possible future legislation, it may want to keep an eye on the courts that it has established. (Though this argument does not extend to SCOTUS.)

And ditto re the impeachment power - who knows what scandalous deliberations may have been going on.

So I don't see any obvious reason why they can't investigate away - so long as they take the trouble to pass the necessary law awarding themselves the power.

However, the courts may have an interest in disagreeing 🙂