No. 19A545
In the Supreme Court of the United States
DONALD J. TRUMP; THE TRUMP ORGANIZATION, INC.; TRUMP ORGANIZATION LLC; THE
TRUMP CORPORATION; DJT HOLDINGS LLC; THE DONALD J. TRUMP REVOCABLE
TRUST; and TRUMP OLD POST OFFICE LLC,
Applicants,
v.
MAZARS USA, LLP; COMMITTEE ON OVERSIGHT AND REFORM OF THE
U.S. HOUSE OF REPRESENTATIVES,
Respondents.

On Application for Stay
REPLY IN SUPPORT OF EMERGENCY APPLICATION
FOR A STAY OF MANDATE

Jay Alan Sekulow
Stuart J. Roth
Jordan Sekulow
CONSTITUTIONAL LITIGATION
AND ADVOCACY GROUP, P.C.
1701 Pennsylvania Ave, NW, Suite 200
Washington, DC 20006
(202) 546-8890
jsekulow@claglaw.com
Stefan C. Passantino
MICHAEL BEST & FRIEDRICH LLP
1000 Maine Ave. SW, Ste. 400
Washington, D.C. 20024
(202) 747-9582
spassantino@michaelbest.com

William S. Consovoy
Counsel of Record
Jordan M. Call
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
will@consovoymccarthy.com
Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
patrick@consovoymccarthy.com

Counsel for Applicants
Dated: November 22, 2019

 TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................i
TABLE OF AUTHORITIES .......................................................................................... ii
REPLY IN SUPPORT OF EMERGENCY APPLICATION .......................................... 1
I.

The balance of equities strongly favors Applicants ............................................. 2

II. There is a reasonable probability that this Court will grant certiorari and
a fair prospect that this Court will reverse the D.C. Circuit’s decision. ............ 6
III. This case is not about impeachment .................................................................. 10
CONCLUSION .............................................................................................................. 12

i

 TABLE OF AUTHORITIES
Cases
Azar v. Garza,
138 S. Ct. 1790 (2018).................................................................................................. 2
Clinton v. Jones,
520 U.S. 681 (1997).................................................................................................. 6, 7
Dept. of Commerce v. New York,
139 S. Ct. 2551 (2019).................................................................................................. 8
Eastland v. U.S. Servicemen’s Fund,
421 U.S. 491 (1975)...................................................................................................... 4
John Doe Agency v. John Doe Corp.,
488 U.S. 1306 (1989) (Marshall, J., in chambers) ...................................................... 2
Office of President v. Office of Indep. Counsel,
521 U.S. 1105 (1997).................................................................................................... 3
Office of President v. Office of Indep. Counsel,
525 U.S. 996 (1998)...................................................................................................... 3
Packwood v. Senate Select Comm. on Ethics,
510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers) ................................................ 4
Rubin v. United States,
524 U.S. 1301 (1998) (Rehnquist, C.J., in chambers) ................................................ 4
Rubin v. United States,
525 U.S. 990 (1998)...................................................................................................... 3
Tobin v. United States,
306 F.2d 270 (D.C. Cir. 1962)...................................................................................... 9
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950)...................................................................................................... 11
United States v. Nixon,
418 U.S. 683 (1974)...................................................................................................... 4

ii

 United States v. Rumely,
345 U.S. 41 (1953).................................................................................................. 8, 10
United States v. Welden,
377 U.S. 95 (1964) ........................................................................................................ 8
Watkins v. United States,
354 U.S. 178 (1957)................................................................................................ 5, 10
 
Statutes
28 U.S.C. § 1257 .............................................................................................................. 2
 
Rules
S. Ct. R. 10 ....................................................................................................................... 2
 
Other Authorities
Brief in Opposition, Trump v. Hawaii, No. 17-965 (U.S.)............................................. 7
H.R. Report 116-266 (Oct. 30, 2019) ............................................................................ 11
H.R. Res. 660 (Oct. 31, 2019) ........................................................................................ 11
 
 

iii

 REPLY IN SUPPORT OF EMERGENCY APPLICATION
Whether the Court should grant a stay is not a close question. The Committee
does not dispute that this subpoena is unprecedented, that the Court has historically
granted review in cases like this, or that Applicants’ ability to seek certiorari will be
mooted absent a stay. The Committee nevertheless opposes a stay because “[t]wohundred twenty days ... have elapsed” since it issued the subpoena, it believes that
the lower courts correctly applied precedent, and it “urgently needs” these records “to
exercise its constitutional functions.” Committee Opposition (“Opp.”) at 1-2. But the
Committee omits that it has voluntarily stayed enforcement of the subpoena for more
than six months, that those same lower-court rulings generated opinions totaling
nearly two hundred pages and three dissents, and that it cannot identify any
potential legislation to which these records are relevant—let alone urgently needed.
The Court should grant the stay. This is a significant separation-of-powers
clash between the President and Congress. The dissenting judges made a compelling
case why review is warranted and the decision below is unlikely to survive further
review. And the Committee now says it will suffer no irreparable harm so long as the
Court hears this case “on an expedited basis this Term, if it does grant certiorari,” id.
at 2, while Applicants will obviously suffer irreparable harm if a stay is denied. There
is simply no basis to deny interim relief and thus end this case before Applicants have
the opportunity to file a certiorari petition. To that end, Applicants are prepared to
proceed on any schedule that the Court deems appropriate should the stay pending
certiorari be granted.

1

 I.

The balance of equities strongly favors Applicants.
The balance of equities is not close, Mot. 29-32, and nothing in the Committee’s

opposition alters that conclusion. The Committee cannot dispute that, absent a stay,
this case will become moot before this Court can decide whether to hear it—the kind
of irreparable harm that provides the “‘most compelling’” basis for a stay. John Doe
Agency v. John Doe Corp., 488 U.S. 1306, 1309 (1989) (Marshall, J., in chambers). It
argues instead that “Applicants do not articulate any valid reason” for a stay because
“the President has no right to this Court’s review of every case in which he seeks it.”
Opp. 25-26. But that is not Applicants’ argument.
At this juncture, Applicants are not seeking a stay so this Court can decide the
case on the merits. A stay is needed so that Applicants can file a certiorari petition—
a “right” they do hold. See 28 U.S.C. § 1257; S. Ct. R. 10. The point of a stay pending
certiorari is “‘to protect this Court’s power to entertain a petition for certiorari before
or after the final judgment of the Court of Appeals.’” John Doe, 488 U.S. at 1309. In
fact, when this Court loses the chance to grant certiorari because the winning party
moots the case, it penalizes this behavior by vacating the appellate decision. See Azar
v. Garza, 138 S. Ct. 1790, 1792-93 (2018); infra 11. Preserving the Court’s ability to
decide whether it wants to hear this case is alone a sufficient reason to grant the stay
pending certiorari. Mot. 26-27.
Nor have Applicants asserted that “every” petition a President files should be
granted. Applicants have instead explained that the Court has rightly granted review
in every case like this one in which a President has sought review. Mot. 15-16. And,
because a dispute over a congressional subpoena for the President’s personal papers

2

 will become moot without the Court’s intervention, it is difficult to imagine a stronger
stay application. At bottom, ensuring that the President does not suffer case-mooting
harm in a major separation-of-powers clash with Congress should end any debate
over Applicants’ right to a stay.1
The Committee responds that granting relief would mean that the President
“has the right to stall any Congressional subpoena to which he objects through the
months or years that it takes for a challenge to work its way through the lower courts
and for this Court then to grant or deny certiorari.” Opp. 26. But the Committee had
every opportunity to press for enforcement of the subpoena in the district court and
in the court of appeals. It instead chose to defer enforcement for more than six months
so those courts could hear this important case without needing to adjudicate requests
for emergency relief. See Mot. 7-8. The only court to which the Committee is unwilling
to extend that courtesy is this one.
Regardless, granting relief in cases like this will have little to no bearing on
the House’s “ability to conduct oversight or to collect information about the Executive
Branch.” Opp. 26. That is because the case-mooting problem Applicants confront is a
product of the Committee’s decision to circumvent the Executive Branch and seek the

That said, Applicants have been unable to find any case in which a President’s
certiorari petition has been denied. The Committee cites three cases that it suggests
fit the bill. Opp. 26. But none involved the President himself, the President’s personal
records, or the President’s records—period. See Office of President v. Office of Indep.
Counsel, 525 U.S. 996 (1998) (Deputy White House Counsel resisted giving grandjury testimony); Rubin v. United States, 525 U.S. 990 (1998) (Secret Service officers
resisted giving grand-jury testimony); Office of President v. Office of Indep. Counsel,
521 U.S. 1105 (1997) (grand-jury subpoena regarding meetings between the First
Lady and White House Counsel).
1

3

 records from his accountants. Mot. 4-7. When Congress subpoenas the Executive
Branch, the recipient can object, retain the documents, and risk contempt. But since
it is “unlikely that the third party would risk a contempt citation,” there is a “limited
class of cases where denial of” interim relief “would render impossible any review
whatsoever of an individual’s claims.” United States v. Nixon, 418 U.S. 683, 691
(1974) (citations and quotations omitted). Unsurprisingly, then, all the Committee’s
cases involve the denial of a stay pending certiorari where the recipient was willing
to challenge the subpoena’s legality. See Office of President v. Office of Indep. Counsel,
No. A-108, 1998 WL 438524, at *1 (U.S. Aug. 4, 1998) (Rehnquist, C.J., in chambers)
(Deputy White House Counsel refused to testify before a federal grand jury); Rubin
v. United States, 524 U.S. 1301, 1302 (1998) (Rehnquist, C.J., in chambers) (Secret
Service officers refused to testify to federal grand jury); Packwood v. Senate Select
Comm. on Ethics, 510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers) (Senator
refused to comply with congressional subpoena). Dissatisfaction with the judiciary’s
refusal to allow the Committee to “frustrate any ... inquiry” into the subpoena is not
a justification for mooting Applicants’ ability to seek certiorari. Eastland v. U.S.
Servicemen’s Fund, 421 U.S. 491, 501 n.14 (1975).2

The Committee also attempts to minimize the harm Applicants will suffer by
arguing that “the documents ... do not contain trade secrets, privileged information,
or other highly sensitive information (such as law enforcement information).” Opp.
27. But these documents are privileged, Mot. 28 n.2, and—contra the Committee’s
assertion, Opp. 21—Applicants did raise that point below, D. Ct. Doc. 1 at 11; D. Ct.
Doc. 11-1 at 3; CADC Doc. 1814258 at 3. They are also highly sensitive. The subpoena
seeks confidential records that aim to uncover every detail of the President’s family
businesses over the last decade. Regardless, irreparable harm does not turn on trade
secrets, privilege, or sensitivity—it turns on confidentiality. Mot. 28.
2

4

 The claim that the harm Congress suffers through “delay ... by depriving it of
important information ... outweighs any harm Applicants might suffer from Mazars’
compliance with the subpoena” is thus meritless. Opp. 23. The Committee argues that
it needs this information in order to legislate. See id. at 23-24. But that claim is, to
put it charitably, nebulous. The Committee cannot identify any “potential legislation”
to which these records are relevant—let alone urgently needed. Id. at 24. It decries
what it perceives as an effort to “second-guess” Congress’s view of what information
is needed to legislate. Opp. 24. But Congress is not a superlitigant who automatically
wins the balance of equities. This Court does not “assume … that every congressional
investigation … overbalances any private rights affected.” Watkins v. United States,
354 U.S. 178, 201 (1957).3
Congress has an interest in lawfully gathering information to assist in its
legislative pursuits. But what matters here is that the Committee identifies no reason
why it needs these records immediately. A generic interest in collecting information
is not irreparable, pales in comparison to the serious harm Applicants will suffer
absent a stay, and provides no compelling basis to moot this case before the Court can
decide whether it warrants review.

The Committee also points to its generic interest in exercising “oversight of
the Executive Branch” as justifying its urgent need for these documents. Opp. 24-25.
But the D.C. Circuit rejected that as a rationale for why the subpoena has a legitimate
legislative purpose. App. 37-38. “The challenged subpoena—or, more specifically, the
portion of the subpoena that seeks a sitting President’s financial information—would
produce no relevant ‘information about’ laws that apply to ordinary Executive Branch
employees.” App. 37 (cleaned up).
3

5

 II.

There is a reasonable probability that this Court will grant certiorari
and a fair prospect that this Court will reverse the D.C. Circuit’s
decision.
This case is worthy of review and is likely to be reversed if certiorari is granted.

Whether the Committee was engaging in prohibited law enforcement, whether it was
investigating in an area where it can pass constitutional legislation, and whether it
had statutory authority are all important issues over which there is a serious legal
dispute. Mot. 16-26. Here too, the Committee cannot muster a strong opposition to
Applicants’ stay request.
To begin, the Committee barely contests the importance of this dispute. Nor
could it. Mot. 13-15. This subpoena, and the D.C. Circuit’s decision upholding it, are
unprecedented. Congress may have a history of issuing subpoenas both generally,
and to “third parties close to Executive officials” in particular, Opp. 20, but it has no
history of issuing third-party subpoenas for the President’s personal records. And,
while this Court has explained “‘that the President is subject to judicial process in
appropriate circumstances,’” Op. 19 (quoting Clinton v. Jones, 520 U.S. 681, 703-04
(1997) (other citation omitted)), no court—at least before now—had ever upheld a
presidential subpoena like this one as appropriate, Mot. 14-15. The Committee thus
can try to characterize this as “a fact-bound dispute about the purpose of the Mazars
subpoena” if it wishes. Opp. 11. But there is no way the Committee can mask this
case’s importance.
The Committee highlights the fact that “the President brought this suit in his
individual capacity” and that the case does not involve a claim of executive privilege
as additional reasons why review is unjustified. Opp. 10-11. But that was also true of

6

 Clinton v. Jones. In fact, every reason the Committee offers for denying review here
was rejected by the Court in explaining why it granted President Clinton’s petition.
Mot. 15. When cases break new ground by extending legal principles from other
contexts to the President himself, this Court does not hesitate to grant review. See,
e.g., Brief in Opposition, Trump v. Hawaii, No. 17-965 (U.S.) (unsuccessfully arguing
that “[t]he traditional justifications for granting certiorari are absent” because the
case applied settled law to the President).
The Committee also argues that review is unwarranted because “Applicants
do not ask this Court to adopt the reasoning advanced by Judge Rao’s panel dissent,
and this Court should not do so.” Opp. 21. That assertion is mystifying. Applicants
and Judge Rao agree that the D.C. Circuit did not evaluate the subpoena’s “‘real
object,’” “‘primary purpose,’” or “‘gravamen.’” Mot. 18. It asked only whether passing
legislation was “an insubstantial, makeweight” purpose. App. 28. And it held that the
“avowal” of an illegal law-enforcement purpose does not “spoil[]” an “otherwise valid
legislative inquiry.” App. 27, 29. But, as Judge Rao explained, “the gravamen of the
Oversight Committee’s investigation … is the President’s wrongdoing.” App. 116. And
though the Court has “upheld some congressional investigations that incidentally
uncover unlawful action by private citizens,” Judge Rao explained that investigating
the “wrongdoing of the President … has never been treated as merely incidental to a
legislative purpose.” App. 112-13. That is Applicants’ argument too.
The Committee disagrees. Like the lower courts, its view is that even though
the “investigation was prompted[] in part” by a desire to determine if “President

7

 Trump had failed to comply with existing law,” the subpoena has a legitimate purpose
so long as it “can lead to legislation.” Opp. 13 (quoting App. 172) (emphasis added). If
that is the test, then Congress’s subpoena power is limited only by its imagination.
Mot. 17-18. That forgiving standard cannot be reconciled with the admonition that
“Congress is not a law enforcement agency; that power is entrusted to the Executive.”
United States v. Welden, 377 U.S. 95, 117 (1964). Nor is the Committee’s assertion
that “it is the presence of a valid legislative purpose, not the absence of any other
purpose, that determines [a subpoena’s] lawfulness,” Opp. 13, defensible. The House
is not exempt from the rule that courts “are ‘not required to exhibit a naiveté from
which ordinary citizens are free.’” Department of Commerce v. New York, 139 S. Ct.
2551, 2573 (2019); see also United States v. Rumely, 345 U.S. 41, 44 (1953) (courts
must not refuse to “see what all others can see and understand” when evaluating the
“congressional power of investigation.” (cleaned up)). To be sure, the parties seriously
dispute how to apply decades-old, if not century-old, decisions to a 2019 congressional
demand for a President’s financial records. Opp. 13-15. But the need for the Court’s
guidance is a reason to grant certiorari—not to deny it.
The Committee also tries to use the fact that this case raises a serious question
about Congress’s power to impose financial-disclosure regulations on the President
as a reason to deny review. Opp. 16-18. But its limited and unpersuasive defense of
the decision below is telling. Instead of explaining why the D.C. Circuit was correct,
the Committee calls this a “poor vehicle” to decide that important issue. Opp. 16. But
the Committee fails to appreciate that its concession—i.e., that reaching this “broad

8

 question,” id., in a subpoena case is problematic—cuts against its position. Since the
D.C. Circuit needed to decide this issue to uphold the subpoena, Tobin v. United
States, 306 F.2d 270, 276 (D.C. Cir. 1962), it should have narrowly interpreted the
Committee’s statutory authority, Mot. 23-24. But the D.C. Circuit instead crossed the
Rubicon and became the first court ever to conclude that such regulations are
constitutional. The question thus is not whether this important question should be
reached, but which court should decide it. The D.C. Circuit should not have the last
word as to whether, under the Constitution, Congress can impose financial-disclosure
regulations on a coordinate branch of government.
Finally, the Committee argues that whether it had statutory authority to issue
a subpoena to the President “is neither important enough for this Court’s review nor
relevant any longer to this case.” Opp. 18. It is certainly important enough. As both
Judge Katsas and the Executive Branch have explained, giving every congressional
committee the license to subpoena any of the President’s personal records creates
enormous separation-of-powers issues. Mot. 25-26. The Committee criticizes Judge
Katsas for not identifying where the line should be drawn. Opp. 20. But that puts the
cart before the horse. After all, the whole point of the clear-statement rule and other
narrowing constructions is to force Congress to clearly manifest its intent to trigger
this concern before the Court is forced to step in and decide whether a constitutional
line has been crossed.
The argument that the full House has now clearly manifested its intention to
give the Committee that authority is no stronger. Opp. 18-19. While this case was on

9

 appeal, Congress passed Resolution 507. That resolution purports to “affirm[] the
validity” of the subpoena. App. 63. But the Committee’s “instructions are embodied
in the authorizing resolution. That document is the committee’s charter.” Watkins,
354 U.S. at 201. And, because “the delegation of power to the committee must be
clearly revealed in its charter,” id. at 198, the “scope” of its statutory authority must
“be ascertained as of th[e] time” of the request and “cannot be enlarged by subsequent
action of Congress,” Rumely, 345 U.S. at 48. The D.C. Circuit never reached this
retroactivity issue because it rejected application of a narrowing construction and
held that “the plain text of the House Rules” already “authorizes the subpoena.” App.
64. But if Applicants are correct that the Committee needs express authority under
the House Rules to subpoena the President, the resolution does not solve the problem.
As the D.C. Circuit held, Resolution 507 “purports neither to enlarge the Committee’s
jurisdiction nor to amend the House Rules.” App. 63.
III.

This case is not about impeachment.
The Committee’s attempt to use the fact that “the House is now engaged in an

impeachment inquiry” to deter the Court from granting the stay should be rejected.
Opp. 22. The Committee concedes that it “did not originally seek the information in
question pursuant to the House’s impeachment power.” Id. at 25; see also Mot. 29 n.3.
Nor does the Committee dispute that attempting to transition to an impeachmentbased justification at this late date would raise retroactivity problems, supra 10, since
it is doubtful that “a defective subpoena can be revived by after-the-fact approval.”
App. 141 (Rao, J., dissenting from denial of rehearing en banc). The Committee, in

10

 short, makes no “argument on the merits” that impeachment is an alternative ground
for upholding this subpoena. Opp. 22.
Instead, the Committee suggests that the Court should deny a stay pending
certiorari because “the House could quickly issue a new subpoena” if review is
granted. Id. If the Committee took that step, however, then the petition would need
to be granted, and the decision below would need to be vacated. See supra 2; United
States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). In other words, any attempt by
the Committee to moot this case in order to thwart Supreme Court review would only
confirm Applicants’ entitlement to a stay. The Committee’s attempt to avoid further
review while preserving the decision below as precedent should be rejected. Congress
should not be permitted to benefit from such gamesmanship.
Nor would any new impeachment subpoena “satisfy” Applicants’ “objections.”
Opp. 22. The Committee would still lack statutory authority. As Judge Rao explained,
“House Resolution 660 does not purport to sweep previously issued subpoenas into
the ambit of the impeachment inquiry.” App. 141-42. Moreover, as the House recently
confirmed, the impeachment proceedings are limited to “Ukraine,” H.R. Report 116266, at 2 (Oct. 30, 2019), and the Committee’s authority with respect to impeachment
is limited to this “existing House of Representatives inquiry,” H.R. Res. 660 (Oct. 31,
2019). Hence, while the House has relied on the existing inquiry to justify “subpoenas
on the White House, the Office of Management and Budget, the Department of State,
the Department of Defense, and the Department of Energy,” H.R. Report 116-266 at
3, it has never cited it to justify this subpoena. These documents, in sum, are not even

11

 “potentially ... relevant to that inquiry.” Opp. 26-27. The House’s impeachment-based
desire to “be fully informed with all the information to which it is entitled,” Opp. 25,
simply has nothing to do with this case.
CONCLUSION
For all of these reasons, and for those presented in the application, Applicants
respectfully ask that this Court order that the mandate for the United States Court
of Appeals for the District of Columbia Circuit, which is now stayed pending further
order of the Court, be further stayed pending the filing and disposition of a petition
for a writ of certiorari.

Respectfully submitted,
Jay Alan Sekulow
Stuart J. Roth
Jordan Sekulow
CONSTITUTIONAL LITIGATION
AND ADVOCACY GROUP, P.C.
1701 Pennsylvania Ave, NW, Suite 200
Washington, DC 20006
(202) 546-8890
jsekulow@claglaw.com

William S. Consovoy
Counsel of Record
Jordan M. Call
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
will@consovoymccarthy.com
Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
patrick@consovoymccarthy.com

Stefan C. Passantino
MICHAEL BEST & FRIEDRICH LLP
1000 Maine Ave. SW, Ste. 400
Washington, D.C. 20024
(202) 747-9582
spassantino@michaelbest.com

Counsel for Applicants
November 22, 2019

12