Nos. 19-715, 19-760
`
`In The
`~upreme Qtourt of tbe ffiniteb ~tateii
`
`Donald J. Trump, et al,
`Petitioners,
`
`v.
`
`Mazars USA, LLP, et al,
`Respondents.
`
`Donald J. Trump, et al.,
`Petitioners,
`
`V.
`
`Deutsche Bank AG., et al.,
`Respondents.
`
`On Writs of Certiorari to the United States Court of
`Appeals for the District of Columbia and Second Circuits
`
`BRIEF OF AMICUS CURIAE PROFESSOR
`W. BURLETTE CARTER ON SUBJECT MATTER
`JURISDICTION AND IN SUPPORT OF REVERSAL
`
`W. (Willieta) Burlette Carter
`Counsel of Record
`Professor Emerita of Law
`The George Washington
`University Law School
`2000 H Street, NW
`Washington, DC 20052
`(202) 994-5155/
`bcarter@law.gwu.edu
`
`
`
`In The
`~upreme Qtourt of tbe ffiniteb ~tateii
`
`Donald J. Trump, et al,
`Petitioners,
`
`v.
`
`Mazars USA, LLP, et al,
`Respondents.
`
`Donald J. Trump, et al.,
`Petitioners,
`
`V.
`
`Deutsche Bank AG., et al.,
`Respondents.
`
`On Writs of Certiorari to the United States Court of
`Appeals for the District of Columbia and Second Circuits
`
`BRIEF OF AMICUS CURIAE PROFESSOR
`W. BURLETTE CARTER ON SUBJECT MATTER
`JURISDICTION AND IN SUPPORT OF REVERSAL
`
`W. (Willieta) Burlette Carter
`Counsel of Record
`Professor Emerita of Law
`The George Washington
`University Law School
`2000 H Street, NW
`Washington, DC 20052
`(202) 994-5155/
`bcarter@law.gwu.edu
`
`
`
`
`
`1
`
`TABLE OF CONTENTS
`
`Table of Authorities ................................................... iv
`The Interests of Amicus Curiae ................................. 1
`Summary of the Argument ........................................ 2
`Argument .................................................................... 3
`
`I.
`
`The Question is Whether the Committees Had
`Subject Matter
`Jurisdiction
`to
`Issue
`the
`Subpoenas ........................................................... 3
`II. Revisiting the Facts is Key: The Committees
`Sought To Investigate or Discover Allegations of
`Criminal Misconduct Against Specific Persons or
`Entities ............................................................... 5
`III. The Founders Decided Against Giving Congress
`the Broad Power Parliament Had to Investigate an
`Accused ............................................................. 15
`A. Parliament's "Impeachment Power" Was the
`Investigate Any Criminal
`Power
`to
`Accusations Against Any Individual ......... 16
`B. Parliament Used Specific Jurisdiction for
`"I
`h
`t" I
`t ·
`t ·
`17
`mpeac men
`nves 1ga ions ................ ..
`C. Impeachment was a "High Privilege" of the
`House of Commons ..................................... 1 7
`D. The Founders Narrowed the Meaning of the
`Term "Impeachment" for Americans, Limiting
`it to Civil Officers of the United States ..... 18
`
`
`
`11
`
`E. The Founders Gave the Power to Investigate
`Specific Accusations of Criminal Misconduct to
`the Executive Branch and the Power to Resolve
`Legal Questions to the Judicial Branch .... 19
`F. The Founders Set Forth Specific Protections for
`the Criminally Accused .............................. 20
`G. The Founders Embraced Impeachment as a
`the House
`of
`"High
`Privilege"
`of
`Representatives .......................................... 21
`H. Citizens Retain Their Constitutional Rights to
`Object to Congressional Investigations and to
`Request Judicial Redress ........................... 22
`IV. The House Rules Do Not Authorize General
`"Oversight" Investigations of an Accused or These
`Subpoenas ......................................................... 23
`A. The Text of the Rules Do Not Provide
`Jurisdiction ................................................. 23
`B. Traditional Notions of "Oversight" Do Not
`Support Jurisdiction .................................. 23
`1. Historically "Oversight Jurisdiction" Has
`Meant Jurisdiction to Investigate Matters
`of General Applicability ...................... 24
`2. Prior to the Constitution, the Independent
`States Conceived the Role of Standing
`Committees as
`Involving Matters of
`General Applicability .......................... 25
`3. Congress Has Never
`a
`Standing
`Committee on Impeachment Nor One
`Devoted
`to
`Investigations of Specific
`
`
`
`111
`
`Criminal Misconduct Against Accused
`Persons ................................................ 26
`C. Federal Judges are Not an Exception to the
`Rule Requiring Specific Jurisdiction ......... 31
`D. Specific Jurisdiction Has Been the Norm for
`Investigations of Criminal Accusations Against
`Individuals Not Subject to Impeachment . 32
`E. Nonjurisdictional Action Cannot Be a Basis for
`Jurisdiction and Committees Cannot Expand
`Jurisdiction Given ...................................... 34
`V. Congress Cannot Retroactively Establish Subject
`Matter Jurisdiction Under the Constitution ... 34
`37
`Conclusion
`
`
`
`IV
`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`1. Barenblatt v. U.S., 360 U.S. 109 (1959) ........... 32
`
`
`2. Fort Bend Cty v. Davis, 139 S. Ct. 1843
`(2019) ................................................................... 4
`
`
`3. Gojack v. U.S., 384 U.S. 702 (1966) .................. 24
`
`
`4. Hutchinson v. U.S., 369 U.S. 599 (1962) ... 22, 32,
`33
`
`
`5. Kilbourne v. Thompson, 103 U.S. 168 (1880) .. 32
`
`
`6. Marbury v. Madison, 5 U.S. 137 (1803) ........... 20
`
`
`7. MatterofCohen, 170A.D.3d30 (1 st Dept.
`Feb. 26, 2019) .................................................... 10
`
`
`8. Musacchio v. U.S. 136 S. Ct. 709 (2016) ......... 34
`
`
`9. Old Wayne Mut. Life Assoc. v. McDonough,
`204 U .S. 8 (1907) ................................................. 4
`
`
`10. Scott v. McNeal, 154 U.S. 34 (1894) ................... 4
`
`
`11. Stockdale v. Hasnard, 112 Eng. Rep. 1112
`(1839) ................................................................. 18
`
`
`12. Trump v. Comm. on Oversight & Reform, 380
`F. Supp. 3d 76, 83 (2019) . ............................. 6, 28
`
`
`
`V
`
`
`13. Trump v. Deutsche Bank, 943 F.3d 627 (2d
`Cir. 2019) ........................................................... 11
`
`
`14. Trump v. Mazars, 940 F.3d 710 (D.C. Cir.
`2019) ................................................................ 6, 9
`
`
`15. U.S. v. Rumley, 345 U.S. 41 (1953) .................. 32
`
`
`16. U.S. v. Zolin. 491 U.S. 554 (1989) .................... 10
`
`
`17. Watkins v. U.S., 354 U.S. 178 (1957) ............... 32
`
`STATUTES
`
`18. 28 u.s.c. §§351-364 .......................................... 31
`
`
`19. Leg. Reorg. Act of 1946, P.L. No. 601, 60
`Stat. 812, ch. 753 (1946),
`https://www Joe.gov/law/help/statutes-at(cid:173)
`large/79th-congress/session-2/c79s2ch753. pdf. 24
`
`CONSTITUTIONAL PROVISIONS
`
`
`20. U.S. Const. amend. I ......................................... 22
`
`
`21. U.S. Const. amend. IV ...................................... 21
`
`
`22. U.S. Const. amend. V ........................................ 20
`
`
`23. U.S. Const. art. III ............................................ 20
`
`
`
`Vl
`
`
`24. U.S. Const., arts. II ........................................... 19
`
`RULES
`
`
`25. Federal Rules for Judicial Conduct and
`Judicial Disability Proceedings (2019) ............. 31
`
`
`26. H. Rule IX .................................................... 12, 21
`
`
`27. H. Rule X(l)(h) .................................................... 7
`
`
`28. H. Rule X(l)(n) .................................................... 7
`
`
`29. H. Rule X(ll) ....................................................... 7
`
`
`30. H. Rule X(2)(b)(2) .............................................. 24
`
`
`31. H. Rule X(3)(i) ........................................... 5, 6, 23
`
`
`32. H. Rule X(3)(i), 115th Congress ........................... 5
`
`
`33. H. Rule X(3)(m) ................................................... 7
`
`
`34. H. Rule X(l) ........................................................ 11
`
`
`35. H. Rule XI(2)(m)(l) ............................................ 34
`
`
`36. H. Rule XII ........................................................ 31
`
`
`37. Sup. Ct. R. 14 ...................................................... 4
`
`
`38. Sup. Ct. R. 37 ...................................................... 1
`
`
`
`Vll
`
`CONGRESSIONAL BILLS
`
`
`39. H . Res. 13, 116th Cong. (2019) ......................... 12
`
`
`40. H . Res. 257, 116th Cong. (2019) ........................ 12
`
`
`41. H . Res. 507, 116th Cong. (2019) . ................. 13, 34
`
`
`42. H . Res. 6, 116th Cong. (2019) .............................. 5
`
`
`43. H . Res. 660, 116th Cong. (2019) .................. 15, 34
`
`
`44. H . Res. 755, 116th Cong. (2019) . ................. 15, 34
`
`CONGRESSIONAL DEBATES/REPORTS/HEARINGS ETC.
`
`
`45. 132 Cong. Rec. 16316 (1986) (matter of Judge
`Harry E. Claiborne) .......................................... 31
`
`
`46. 133 Cong. Rec. 6514 (1987) .. ............................. 32
`
`
`47. 29 Cong. Globe 1017-20 (Mar. 1860) . ............... 28
`
`
`48. 31 Annals of Cong. (Dec. 1817) .. ....................... 30
`
`
`49. 32 Annals of Congress 1715 (1818) . ................. 30
`
`
`50. 4 Cong. Rec. 414 (1876) ..................................... 29
`
`
`51. 4 Cong. Rec. iii (1876) ................................. 29, 30
`
`
`52. 48 Cong. Rec. 683 (1912) ..................................... 4
`
`
`53. 48 Cong. Rec. 762 (1912) ..................................... 4
`
`
`
`Vlll
`
`
`54. Cohen Intel. Dep., Pt. 2, March 6, at 61,
`246-48 250 ........................................................... 9
`
`
`55. Gales & Sea ton's Register of Debates in
`Congress: Comprising the Leading Debates
`(1831) ........................................................... 27, 28
`
`
`56. H. Rep. No. 116-40 (2019) ................................. 23
`
`
`57. House Committee on Oversight and Reform,
`Hearing Wi'th Michael Cohen, Former
`Attorney to President Trump, Jan. 8, 2019,
`https://oversight.house.gov/legislation/hearin
`gs/wi th-michael -cohen-former-a ttorney-to-
`president-donald-trum p .................................. 7, 9
`
`
`58. House Permanent Select Committee on
`Intelligence, Press Release, Chairman Schiff
`Statement on Release of Michael Cohen
`Testimony and Documents, May 20, 2019,
`https://intelligence.house.gov/news/document
`single.aspx?DocumentID=644 (with links to
`transcripts) .......................................................... 9
`
`
`59. Letter from Elijah Cummings, Chair,
`Oversight and Reform, to Victor Wahba, Mar.
`20, 2019,
`https:// oversight.house. gov/sites/ democra ts.o
`versight.house. gov/files/ documents/2019-03-
`20. EEC%20to%20 Wahba -Mazars. pdf .............. 10
`
`
`60. Letter from Kevin McCarthy, House Minority
`Leader, to Nancy Pelosi, Speaker of the
`House, (Oct. 3, 2019),
`https:/ /republicanleader .house.gov/wp-
`
`
`
`IX
`
`content/uploads/2019/10/Impeachment-
`doc.pdf ................................................................ 14
`
`
`61. Memo from Elijah Cummings to Members of
`the Comm. on Oversight and Reform, April
`12, 2019 ............................................................. 33
`
`
`62. Pelosi Remarks Announcing Impeachment
`Inquiry, Sept. 24, 2019,
`http://www.speaker.gov/newsroom/92419-0 ..... 14
`
`
`63. S. Rep. No. 104-191 (1995) ................................ 10
`
`BRIEFS/COURT RECORDS
`
`
`64. Br. Oversight Comm., Trump v. Mazars, 940
`F.3d 710 (D.C. Cir 2019) ............................... 6, 23
`
`
`65. Compl., Trump v. Committee on Oversight &
`Reform of U.S. House of Representatives, 380
`F. Supp. 3d 76 (D.D.C. 2019) (No. 19-cv-
`01136) ................................................................ 11
`
`
`66. Compl., Trump v. Deutsche Bank, 2019 U.S.
`Dist. LEXIS 86902 (S.D.N.Y. 2019) (No. 1:19-
`cv-03826) ........................................................... 11
`
`
`67. Declaration of Todd B. Tatelman, executed
`May 10, 2019, Exhibits A and B, 2019 U.S.
`LEXIS 86902 (S.D.N.Y. 2019) (No. 1:19-cv-
`03826) ................................................................ 11
`
`
`
`X
`
`
`68. Pltf s Mem. In Support of Prelim. Injunct.
`Mot. or, in the Alternative, for Expedited
`Partial Sum. Judg., Comm. on Judiciary v.
`McGahn, 2019 U.S. App. LEXIS 38298 (D.C.
`Cir. 2019) ........................................................... 12
`
`BOOKS/SCHOLARLY ARTICLES
`
`
`69. 1 Lauros G. McConachie, Congressional
`Committees: A Study of the Origin and
`Development of Our National and Local
`Legislative Methods (1898) ............................... 26
`
`
`70. 4 William Blackstone, Commentaries on the
`Laws of England ............................................... 16
`
`
`71. George B. Galloway, History of the House of
`Representatives (1962) ..................................... 24
`
`
`72. Ralph V. Harlow, The History of Legislative
`Methods in the Period Before 1825(1917) ....... 25
`
`
`73. The Federalist No. 65 (Alexander Hamilton) .. 18
`
`
`7 4. W. Burlette Carter, Can a Sitting President
`Be Federally Prosecuted: The Founders
`Answer, 62 Howard L. J. 331 (2019)
`https://scholarship.law .gwu.edu/cgi/viewconte
`nt.cgi?article=2702&context=faculty _publicat
`.
`.
`ions .............................................................. passim
`
`
`75. William Cobbett, Complete Collection of
`State Trials and Proceedings for High
`
`
`
`Xl
`
`Treason, and Other Crimes and
`Misdemeanours: From the Reign of King
`Richard II to the End of the Reign of King
`George I ............................................................. 17
`
`
`76. William Cobbett, Parliamentary History of
`England: From the Earliest Period to the
`Year 1803 .................................................... 17, 25
`
`CONGRESSIONAL RULEBOOKS/PRECEDENT BOOKS
`
`
`77. Asher Hinds, Precedents of the House of
`Representatives of the United States 690
`(1907) ........................................ 4, 5, 21, 22, 26, 30
`
`
`78. Constitution, Jefferson's Manual, and the
`Rules of the House of Representatives, 115th
`Congress (2017) ................................................... 5
`
`
`79. Jefferson's Manual(l80l) ................ l6, 21, 22, 24
`
`OTHER AUTHORITIES
`
`
`80. Connor O'Brien, Incoming House Oversight
`Chair Wants Cohen to Testify in January,
`Politico, Dec. 16, 2018,
`https://www.politico.com/story/2018/12/16/mi
`chael-cohen-cummings-oversight-trump-
`1066780 ............................................................... 7
`
`
`
`Xll
`
`
`81. D. Jean Veta & Brian D. Smith,
`Congressional Investigations: Bank of
`America and Recent Developments in
`Attorney-Client Privilege, Bloomberg Law
`Reports, Nov. 6, 2010 ...................................... 10
`
`
`82. Kyle Cheney, Al Green to Force
`Impeachment Vote Against Trump, Politico,
`July 15, 2019 ..................................................... 12
`
`
`83. Letter from David Apol, Acting Director,
`OGE to Rod Rosenstein, Deputy Attorney
`General, May 16, 2018,
`https://www .oge.gov/web/OG E.nsf/0/D323FD
`5ABB 1FD2358525828F005F 4888/$FILE/OG
`E%20Letter%20to%20DOJ%20(posting). pdf ..... 9
`
`
`84. Maggie Haberman, et al., Senate Intel].
`Comm. Subpoenas Trump Attorney Michael
`Cohen, N.Y.Times, Jan. 24, 2019 ....................... 9
`
`
`85. Special Counsel Robert S. Mueller, III, I
`Report on the Investigation into Russian
`Interference in the 2016 Presidential
`Election (Mar. 2019) ............................................ 8
`
`
`86. Video Interview, Jerry Nadler, Chair,
`Committee on Judiciary with Erin Burnette,
`OutFront, CNN (Aug. 8, 2019),
`https://www .cnn.com/videos/politics/2019/08/
`08/jerry-nadler-trump-impeachment-inquiry-
`ebof-vpx.cnn ....................................................... 13
`
`
`
`1
`
`THE INTERESTS OF AMICUS CURIAE
`
`Amicus Curiae, 1 W. Burlette Carter, is Professor
`Emerita of Law at the George Washington University
`Law School in Washington, D.C. ("the University").
`She an expert in American legal history. She
`previously taught Civil Procedure and Evidence. She
`is the author of Can a Sitting President Be Federally
`Prosecuted: The Founders Answer, 62 Howard L. J.
`331 (2019), which explores impeachment history and
`examines
`differences
`between
`impeachment
`jurisdiction and ordinary prosecutions.
`Amicus files this brief unsolicited, on her own
`behalf and at her own cost. Any reference to the
`University is for identification only.
`Amicus interest is in ensuring that the Court
`bases its decision on accurate historical facts.
`Moreover, because the procedures under challenge
`here could be used to affect the rights of ordinary
`Americans, she desires
`to ensure
`that rights
`preserved to the People, writ large, and procedural
`protections the Founders intended to secure to the
`
`1 All Petitioners and Respondents have either given specific
`consent to file this brief or filed a blanket consent. No counsel for
`a party authored this brief in whole or in part; no person or
`entity, other than Amicus, made any monetary contribution
`intended to fund the preparation or submission of this brief.
`Amicus is not a University employee. Any support she receives
`is the type the University or its law school regularly provides to
`all Professors Emeriti.
`
`
`
`2
`
`average person, are not obliterated in a bitter brawl
`between political partisans.
`
`SUMMARY OF THE ARGUMENT
`
`lacked subject
`The Respondent Committees
`matter jurisdiction to issue these subpoenas under
`both House Rules and the Constitution. Here,
`Congressional committees seek to investigate specific
`accusations of criminal misconduct against a
`particular American citizen. When the subpoenas
`were
`issued,
`the committees had only general
`oversight authority. That authority was insufficient
`under House Rules & precedent, the Constitution, the
`common law, and longstanding constitutional history
`and
`tradition. The committees needed specific
`jurisdiction. Constitutionally speaking, a subject
`matter
`jurisdiction defect cannot be cured by
`legislation purporting to be retroactive, even if
`Congress can cure it internally.
`enforcing
`Under
`this Court's
`precedents,
`subpoenas issued by tribunals that lack subject
`matter jurisdiction violates Due Process. Moreover, as
`to one target, the type of investigation Respondents
`pursued
`closely
`resembled
`an
`impeachment
`investigation. As
`to others it resembled a
`law
`enforcement
`investigation.
`The Constitution
`establishes
`subject matter
`jurisdictional and
`procedural boundaries as to impeachment and law
`enforcement that committees operating under mere
`oversight jurisdiction cannot invade or circumvent.
`Where Congress has a role, and wishes to act through
`
`
`
`3
`
`committees, it must speak specifically to authorize
`them.
`that committees, operating under
`fact
`The
`oversight jurisdiction, can offer a "legislative purpose"
`for subpoenas to investigate alleged criminal behavior
`is not surprising but neither is it determinative.
`Citizens do not surrender their Constitutional rights
`on the Capitol's doorsteps; nor does the reach of their
`rights under the Constitution end there. The Court
`must first find a Congressional grant of jurisdiction to
`the committees. If it exists, the Court must then
`weigh the committees' professed legislative needs
`against possible jeopardy to (1) the rights of the
`accused and (2) the powers granted to other Branches
`under
`the Constitution. These
`rules
`apply
`irrespective of the political party in power.
`
`THE ARGUMENT
`
`
`I. The Question is Whether the Committees Had
`Subject Matter Jurisdiction
`to
`Issue
`the
`Subpoenas
`
`to use
`The Respondent Committees sought
`legislative "oversight" powers
`to
`investigate or
`discover criminal accusations against particular
`persons and entities. This holds true irrespective of
`the fact that they also had other, more general, goals.
`Among the targets is a sitting President of the United
`States, although others are subject to subpoenas.2
`
`2 This brief focuses on the President and ordinary citizens. I
`will call those subject to the subpoenas collectively the "Trump
`plaintiffs."
`
`
`
`4
`
`The subpoenas relate, in part, to behavior before that
`President was elected. The central question is
`whether
`the Committees had
`subject matter
`jurisdiction when
`they
`issued
`the subpoenas.
`Enforcing an edict by a tribunal lacking subject
`matter jurisdiction violates Due Process. Scott v.
`McNeal, 154 U.S. 34, 46 (1894); Old Wayne Mut. Life
`Assoc. v. McDonough, 204 U.S. 8, 15 (1907). Doing so
`may also affect other constitutional mandates such as
`the Impeachment Clause, separation of powers and
`individual rights secured under the First, Fourth and
`Fifth Amendments.
`Although subject matter jurisdiction was not
`specifically raised below,3 it may be raised at any time
`in any proceeding, and the Court must even address
`it sua sponte. E.g., Fort Bend Cty v. Davis, 139 S. Ct.
`1843 (2019). It is also a "subsidiary question fairly
`included" in the questions presented. Sup. Ct. R. 14.
`Internally, Congress has long recognized the
`principle
`that
`its committees must be given
`jurisdiction under its rules. See 48 Cong. Rec. 762
`(1912) (arguing over what jurisdictions and powers to
`give to select committee); 48 Cong. Rec. 683 (1912)
`(whether a committee had jurisdiction over a bill);
`Asher Hinds, Precedents of
`the House of
`Representatives of the United States ("Hinds') 690
`(1907) H. Rule X(l) (matters within the jurisdiction of
`standing committees to be referred to them); House R.
`XV(2) (motions to remove a bill from a committee for
`
`3 Petitioners and the Department of Justice did argue below,
`that the Congress has no law enforcement authority and that
`that Constitution requires that a subpoena to the President
`must be clearly authorized and the legislative purpose clearly
`delineated.
`
`
`
`5
`
`lack of jurisdiction). A committee may not report a bill
`if the subject matter has not been referred to it by the
`House. 4 Hinds § 4355.
`
`
`II. Revisiting the Facts is Key: The Committees
`Sought To Investigate or Discover Allegations of
`Criminal Misconduct Against Specific Persons or
`Entities
`
`Amicus views the key facts somewhat differently
`than the courts and parties below. One must revisit
`them to appreciate the subject matter jurisdiction
`issues.
`As a result of the November, 2018 elections,
`Democrats control the House and its committees. On
`January 3, 2019, in largely a party-line vote, the
`House altered its rules. H. Res. 6, 116th Cong. (2019).
`First, they amended House Rule X(3)(i). That rule,
`under the heading "Special oversight functions,"
`relates to the special jurisdiction of the Respondent
`Committee on Oversight and Government Reform
`(hereinafter "the Oversight Committee" or, in context,
`"Oversight"). The rule originally read:
`
`and
`on Oversight
`Committee
`The
`Government Reform shall review and study
`on a continuing basis the operation of
`Government activities at all levels with a view
`to determining their economy and efficiency.
`
`H. Rule X(3)(i), 115th Congress in Constitution,
`Jefferson's Manual, and the Rules of the House of
`Representatives (2017) (emphasis added)
`The amendments struck the words "with a view to
`
`
`
`6
`
`their economy and efficiency" and
`determining
`inserted instead the words, "including the Executive
`Office of the President." The Amendment also
`eliminated the word "Government" from the name of
`the Committee. The altered rule now reads:
`
`The Committee on Oversight and Reform shall
`review and study on a continuing basis the
`operation of Government activities at all levels,
`including the Executive Office of the President.
`
`H. Rule X(3)(i) (Emphasis added).
`Oversight has claimed that the change was
`intended to clarify rather than depart from its
`practices. E.g., Br. Oversight Comm, 940 F.3d at 710
`at 5, n . 4. No legislative information at the time of the
`amendments suggested otherwise. The courts below
`also attributed no significance to the changes. In
`Mazars the district court said, "If there is a common
`thread running through the subjects within the
`Oversight Committee's jurisdiction, it is the oversight
`of the operations and administration of the Executive
`Branch." Trump v. Comm. on Oversight & Reform,
`380 F. Supp. 3d 76, 83 (2019). The Appeals Court
`stated "[l]ike previous Congresses" the House had
`established an Oversight Committee and provided for
`its jurisdiction. Trump v. Mazars, 940 F.3d 710, 714-
`15 (D.C. Cir. 2019).
`Oversight's power under the amendments must be
`read in tandem with its preexisting power under Rule
`X, cl. 4 (Additional Functions of Committees).
`Oversight had the power to investigate any matter
`that was under the jurisdiction of another committee
`and to share the results with other committees.
`
`
`
`7
`
`Notably, all other other committees retained the same
`oversight jurisdiction they long had. Compare H. Rule
`X(l)(n) (Oversight); H. Rule X(l)(h) (Financial
`Services); id at X(3)(m) (Intelligence); id at X(ll).
`While
`Intelligence
`is a
`select committee,
`its
`jurisdiction did not cover an investigation of criminal
`accusations. Thus, in this context, its jurisdiction is
`also properly termed "oversight."
`The Oversight Committee took the lead in these
`investigations. Early on, its Chair expressed an
`interest in having former Trump attorney and
`business associate, Michael Cohen testify. 4
`In the
`prior Congress, the 115th, Cohen had perjured himself
`before the House Permanent Select Committee on
`Intelligence ("Intelligence Committee" or, in context,
`"Intelligence") and the Senate Select Committee on
`Intelligence. These committees were said to be
`investigating allegations of whether Russians
`meddled in the 2016 U.S. election. Cohen was
`subsequently prosecuted for the perjury by Special
`Counsel Robert Mueller. He pled guilty.5 His
`
`4 Connor O'Brien, Incoming House Oversight Chair Wants
`Cohen
`to Testify in January, Politico, Dec. 16, 2018,
`https://www.politico.com/story/2018/12/16/michael-cohen(cid:173)
`cummings-oversight-trump-1066780. House Committee on
`Oversight and Reform, Hearing Jt'ith Michael Cohen, Former
`Attorney
`to
`President
`Trump,
`Jan.
`8,
`2019,
`h ttps:/ /oversight.house.gov/legislation/hearings/with-michael(cid:173)
`cohen -former-a ttorney-to-presiden t-donald-trum p.
`5 US.
`v. Cohen, No.
`(SDNY),
`18 Crim.
`850
`https://www .justice.gov/file/1115596/download
`(information);
`Dept. of Justice, https://www.justice.gov/file/1115566/download
`(plea agreement).
`
`
`
`8
`
`activities with respect to Russia were mentioned in
`the Mueller Report. 6
`On February 26-27, after extensive negotiations
`with Democrats, Cohen finally "voluntarily" appeared
`before the Committee on Oversight and Reform in
`widely-televised hearings. 7
`The testimony went
`beyond the topics of correcting false testimony and
`Russia. Cohen made specific accusations. They
`included that he made a payment for Trump during
`the campaign to enable Trump to silence unfavorable
`allegations. (The Attorney General had already been
`informed during a prior Congress of the conclusion of
`the Director of the Office of Government Ethics that
`Trump was required to report this payment on
`election financial statements but did not.)8 Cohen also
`
`6 Special Counsel Robert S. Mueller, III, I Report on the
`Investigation in to Russian Interference in the 2016 Presidential
`Election (Mar. 2019), at 76-79.
`7 Hearing Before the Committee on Oversight and Reform,
`116th Cong., 1st Sess., Feb. 27, 2019, Ser. No. 116-03 ("Cohen
`Oversight
`Hearing")
`https://docs.house.gov/meetings/GO/GO00/20190227/108969/H
`See
`also Opening
`HRG-116-GO00-20190227-SD003.pdf.
`Statement of Chairman Elijah E. Cummings, Feb. 26, 2019,
`https://docs.house.gov/meetings/GO/GO00/20190227/108969/H
`HRG-116-GO00-MState-C000984-20190227.pdf.
`8 On May 16, 2018, the Director of the Office of Government
`Ethics advised the Deputy Attorney General Rod Rosenstein
`that, in response to a complaint from a group, Citizens for
`Responsibility and Ethics in Washington, it had investigated a
`payment Cohen had made for Trump. It concluded that the
`payment was a loan, was campaign support, and should have
`been reported as a liability in candidate Trump's public financial
`disclosure. Letter from David Apol, Acting Director, OGE to Rod
`Rosenstein, Deputy Attorney General, May 16, 2018,
`https://www.oge.gov/web/OGE.nsf/O/D323FD5ABB1FD2358525
`828F005F4888/$FILE/OGE%20Letter%20to%20DOJ%20(posti
`
`
`
`9
`
`claimed that Trump committed various financial
`crimes unrelated to election and prior to it. He
`provided the Committee with documents in his
`custody reflecting Trump's finances and told it that
`Trump dealt with Respondent Deutsche Bank. E.g.,
`Cohen Oversight Hearing at 10.
`On February 28, 2019 and in March 6, 2019, the
`Intelligence Committee deposed Cohen behind closed
`doors.9 Later, on May 20, the Committee produced
`redacted transcripts, revealing that Cohen made
`similar accusations to those made before Oversight. 10
`Cohen provided that Committee with evidence that
`Trump had dealt with Respondents Deutsche Bank
`and Capital One, as well as other financial
`institutions. At least in one case he presented
`documents marked as covered by the attorney client
`privilege. 11
`On March 20, 2019, Oversight's Chair wrote to
`Mazars' Chair and CEO requesting the production of
`
`ng).pdf. See also Trump v. Mazars, 740 F.3d at 710. The
`Department of Justice has long taken the position that a sitting
`President cannot be prosecuted in common law courts. I agree.
`Carter, supra at p. 1.
`9 The Senate Intelligence Committee also brought Cohen
`back by subpoena and took closed-door testimony in February,
`2019. See Maggie Haberman, et al., Senate Intel]. Comm.
`Subpoenas Trump Attorney Michael Cohen, N. Y. Times, Jan. 24,
`2019.
`10 See House Permanent Select Committee on Intelligence,
`Press Release, Chairman Schiff Statement on Release of
`Michael Cohen Testimony and Documents, May 20, 2019,
`https://intelligence.house.gov/news/documentsingle.aspx?Docu
`mentID=644 (with links to transcripts).
`11 E.g., Cohen Intel. Dep., Pt. 2, March 6, at 61, 246-48 250.
`Whether Congress is obligated to recognize the privilege is the
`subject of debate. E.g., D. Jean Veta & Brian D. Smith,
`
`
`
`10
`
`large numbers of documents relating to Trump and
`other Petitioners. The letter expressly cited Cohen's
`testimony and the documents he had provided. Letter
`to Mazars. See Elijah
`from Elijah Cummings
`Cummings, Chair, Oversight and Reform, to Victor
`Wahba,
`Mar.
`20,
`2019,
`https://oversight.house.gov/sites/democrats.oversight
`.house.gov/files/documents/2019-03-
`20.EEC%20to%20Wahba-Mazars.pdf. The request
`sought sought "all" in several categories of documents
`relevant to Trump's finances back for ten years.
`The committees then pursued a coordinated
`subpoena campaign. On April 15, 2019, the Oversight
`Committee served a subpoena on Mazars. Like the
`letter request, the subpoena also applied to sought
`wide ranging information both prior to and after
`Trump was elected. On the same day, April 15,
`Intelligence and Financial Services
`jointly served
`subpoenas on several financial institutions including
`Deutsche Bank and Capital One. They asked for
`personal financial records relating to the President,
`family members and related entities from 2010
`forward. See Declaration of Todd B. Tatelman,
`executed May 10, 2019, Exhibits A and B, Trump v.
`
`Congressional Investigations: Bank of America and Recent
`Developments in Attorney-Client Privilege, Bloomberg Law
`Reports, Nov. 6, 2010; S. Rep. No. 104-191, at 11
`(1995) (asserting committees may make own decisions on
`privileges because privileges a product of common law). Cohen
`had been disbarred and had previously been suspended. Matter
`of Cohen, 170 A.D.3d 30
`(1 st Dept. Feb. 26, 2019) (striking
`eligibility nunc pro tune to Nov. 29, 2018). The privilege does not
`apply when the holder has used an attorney for the purpose of
`accomplishing a crime or fraud. E.g., US. v. Zolin. 491 U.S. 554
`(1989).
`
`
`
`11
`
`Deutsche Bank, 2019 U.S. LEXIS 86902 (S.D.N.Y.
`2019) (No. 1:19-cv-03826). The Court in Deutsche
`Bank has noted that the committees have declined to
`commit to keeping the records confidential for the
`long term. Trump v. Deutsche Bank, 943 F.3d 627,
`(2d Cir. 2019); id. at 677 (Livingston, J .
`637,
`dis sen ting).
`On or about April 22, 2019, the Trump plaintiffs
`the subpoena. Compl., Trump v.
`sued
`to block
`Committee on Oversight & Reform of U.S. House of
`Representatives, 380 F. Supp. 3d 76 (D.D.C. 2019) (No.
`19-cv-01136). On April 29, 2019, they sued Deutche
`Bank and Capital One and others to block the
`subpoenas. Compl., Trump v. Deutsche Bank, 2019
`U.S. Dist. LEXIS 86902 (S.D.N.Y. 2019) (No. 1:19-cv-
`03826). In Deutsche Bank, the Trump plaintiffs
`alleged that the House had refused to provide copies
`of the subpoenas or any information about their
`contents. Id. at if44 at 9-10. They claim they first
`learned about the subpoenas' contents from the
`financial institutions. Id at ifif 44-51, at 10-11. On
`May 10, 2019, the House eventually filed a redacted
`copy of the subpoenas with the District Court.
`Services. Tatelman Declaration, supra p. 10.
`All House committees investigating the White
`House or Trump apparently took the position that,
`using whatever jurisdiction they had under H. Res. 6,
`they could casually sidle over from "oversight"
`jurisdiction to "impeachment" jurisdiction. On June 6,
`a House report claimed that purs
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