How former President Trump’s entanglements with committees weakened the investigative powers of Congress

January 10, 2022

Click for PDF

Tense political battles between former President Donald J. Trump and the United States House of Representatives under Democratic leadership have renewed debates over the nature and extent of Congressional power to investigate and monitor and have broad implications for congressional inquiries not just on the executive. Branch but also private parties.

In continuation of the House of Representatives’ vigorous efforts to investigate President Trump, three House committees have issued a series of subpoenas to banks and an accounting firm seeking the president’s personal financial records relating to the periods before and after taking office. The president and his business entities resisted, challenging congressional subpoenas to appear in court, dragging the judiciary into the fray. The president’s challenges culminated with the delivery of the landmark Supreme Court ruling in Trump vs. Mazars and Trump v Deutsche Bank AG, which announced revolutionary new principles of law that will have profound implications for congressional surveillance and investigations. In addition, the DC Circuit recently encountered related questions about Congressional authority over executive power in separate inquiries to former White House attorney Donald McGahn, which led to a series of hotly debated decisions (and a possible settlement) in Judicial Committee c. Mcgahn.

These cases arose in a seemingly well-established context. It has long been understood that Congress has inherent constitutional authority to inquire into matters which could be the subject of legislation, for example through the use of a compulsory procedure directed against both government officials and private citizens. As the Supreme Court recognized nearly a century ago, Congress “cannot legislate wisely or effectively in the absence of information about the conditions that the law is supposed to affect or modify.” Thus, “the power of inquiry – with a process for applying it – is an essential and appropriate auxiliary of the legislative function”. The executive and the legislature often resolve disputes over congressional requests for information through the “rush, give and take of the political process between the legislature and the executive.” It is only recently that Congress has repeatedly used the courts to enforce subpoenas against executive officials.

Read more

Washington, DC partners Michael Bopp and Thomas Hungar, along with Chantalle Carles Schropp, prepared this article, originally published by the University of Virginia Law and Policy Review, Flight. 37, n ° 1, in 2021.

© 2022 Gibson, Dunn & Crutcher LLP

Lawyer Advertising: The accompanying documents have been prepared for general information purposes only and are not intended to be legal advice.

Comments are closed.