C&P Files Supreme Court Brief Defending Congressional Subpoenas for President Trump's Financial Records
Last week Clinton & Peed filed an amicus brief—on behalf of four prominent congressional scholars—arguing to the Supreme Court that the subpoenas for President Donald Trump’s financial records comport with a 200-year tradition of congressional investigation of the president and other high-ranking government officials. The brief, filed in the consolidated cases of Trump v. Mazars USA LLP and Trump v. Deutsche Bank AG, asks the Supreme Court to uphold D.C. Circuit and Second Circuit decisions enforcing the subpoenas.
The cases involve disputes between the House of Representatives and President Trump, who wants quash subpoenas issued to several financial institutions who have some of his financial records. Our brief addresses an argument raised by the dissenting opinion in Mazars. In her dissent, D.C. Circuit Judge Neomi Rao argued that even when invoking its legislative powers and gathering information for the purpose of considering remedial legislation, Congress loses the ability to exercise its usual investigative power if the investigation happens to involve potential wrongdoing or illegal activity by the president or another impeachable official. In those circumstances, said the Mazars dissent, Congress must either launch impeachment proceedings or stop investigating.
Our brief addresses and rebuts Judge Rao’s dissent directly. As we explain, “[f]or centuries, Congress has investigated serious misconduct by impeachable officials—and has subpoenaed documents and testimony from and about those officials—without initiating formal impeachment proceedings.” Citing and quoting a wide range of contemporaneous historical records, including primary sources from Founding-era Congresses—we describe many congressional investigations that were similar to the current investigation of Trump. Indeed, if Congress had been governed by the dissent’s proposed rule, the Constitution would have forbidden the landmark investigations into Teapot Dome, Iran-Contra, and Whitewater; other, rigorous investigations of Presidents Andrew Jackson and James Buchanan, Vice President Schuyler Colfax, and Treasury Secretary Alexander Hamilton.
The brief was filed on behalf of Thomas Mann (Brookings Institution), Norman Ornstein (American Enterprise Institute), Morton Rosenberg (Project on Government Oversight), and Brenda Wineapple (historian and author of The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation). It was written by partner Greg Lipper and of counsels Susan Simpson and Musetta Durkee.
Clinton & Peed has a robust appellate practice in federal and state appellate courts. In addition to regularly briefing and arguing civil and criminal appeals on behalf of private and court-appointed clients, we have represented a variety of individuals and organizations pro bono, including in cases presenting some of the most complex and high-profile issues before the Supreme Court.