By a 2-1 vote, a D.C. Circuit panel ruled today (in Trump v. Mazars USA) that the House Committee on Oversight Reform had authority to issue a subpoena to an accounting firm for records related to work it did for Donald Trump both before and after he became president. Judge Tatel, joined by Judge Millett, wrote the 66-page majority opinion. Judge Rao penned a 68-page dissent.
I have not been able to sort through the competing arguments to assess who has the stronger position. Many other folks, however, were able to launch vehement attacks against Judge Rao within minutes of the time the opinion was issued. None of the criticisms I saw provided any evidence that the attackers had actually read Rao’s dissent. So I figure that it would be useful to present a summary of her major arguments:
1. The House has a broad power to investigate for legislative purposes and a distinct and limited judicial power to investigate for purposes of impeachment. “The text and structure of the Constitution, its original meaning, and longstanding practice demonstrate that Congress’s legislative and judicial powers are distinct and exercised through separate processes, for different purposes, and with entirely different protections for individuals targeted for investigation.” (Dissent at 3.) The power to investigate for legislative purposes cannot be used to circumvent the power to investigate for purposes of impeachment.
“The Founders treated impeachable offenses as wholly distinct from the subjects of investigation for legislative purposes, such as maladministration.” “[I]mpeachment addresses a public official’s wrongdoing— treason, bribery, and high crimes or misdemeanors—while problems of general maladministration are left to the political process.” “In addition, impeachment by the House and trial by the Senate were understood to include constitutional rights normally afforded to the accused in a criminal trial.” (15-16.)
“With respect to Congress’s investigative powers, the original meaning and historical practice align—all three branches have consistently distinguished between investigations for legislative purposes and investigations targeting wrongdoing by an impeachable official. Moreover, the historical evidence demonstrates that Congress often begins an investigation into the executive branch with general questions properly pertaining to legislation; however, if an inquiry turns to suspicions of criminality, Congress moves that part of the investigation into impeachment or ends the inquiry into the impeachable official. Thus, even a valid legislative purpose has never been thought to justify probing specific accusations of wrongdoing by impeachable officials.” (19.)
See discussion of Founding Era practice (20-23); Jacksonian Era and later 19th-century practice (23-30); and 20th-century and modern practice (30-36).
2. The “key determination is whether [the Committee’s] investigation targets allegations Congress might treat as ‘high Crimes’ or ‘Misdemeanors.’” The Committee has consistently stated that its purpose is to investigate “illegal conduct” of the president. The fact that the Committee has also stated an interest in remedial legislation “cannot whitewash this subpoena, which—by the Committee’s own description—targets allegations of illegal conduct by the President.” “The most important question is not whether Congress has put forth some legitimate legislative purpose, but rather whether Congress is investigating suspicions of criminality or allegations that the President violated a law. Such investigations may be pursued exclusively through impeachment.” “The Supreme Court has consistently maintained that Congress cannot undertake a legislative investigation of an impeachable official if the ‘gravamen’ of the investigation rests on ‘suspicions of criminality.’” (6-8; see also 37-51.)
3. “By collapsing the distinction between Congress’s legislative and impeachment powers, the majority’s decision has serious consequences for the separation of powers. The decision today expands the legislative power beyond constitutional boundaries, calling into question our precedents for reviewing the scope of congressional investigations; interpreting the legislative power of Congress to subsume the impeachment power; and permitting serious encroachments on the executive branch.” (51; see 51-68.)
Judge Tatel responds most directly to Judge Rao on pages 45 to 49 of his majority opinion.