No. 19A640
IN THE

Supreme Court of the United States
_______________

DONALD J. TRUMP; DONALD J. TRUMP, JR.; ERIC TRUMP; IVANKA TRUMP; DONALD J.
TRUMP REVOCABLE TRUST; TRUMP ORGANIZATION, INC.; TRUMP ORGANIZATION LLC;
DJT HOLDINGS LLC; DJT MANAGING MEMBER LLC; TRUMP ACQUISITION LLC; TRUMP
ACQUISITION, CORP.,
Applicants,
v.
DEUTSCHE BANK AG; CAPITAL ONE FINANCIAL CORPORATION; COMMITTEE ON
FINANCIAL SERVICES OF THE UNITED STATES HOUSE OF REPRESENTATIVES;
PERMANENT SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES HOUSE OF
REPRESENTATIVES,
Respondents.
_______________
On Application for Recall and Stay
From the United States Court of Appeals for the Second Circuit
_______________
OPPOSITION TO EMERGENCY APPLICATION TO
RECALL AND STAY THE MANDATE
Lawrence S. Robbins
Roy T. Englert, Jr.
Alan D. Strasser
Jennifer S. Windom
D. Hunter Smith
Brandon L. Arnold
ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER LLP
2000 K Street NW, 4th Floor
Washington, D.C. 20006
(202) 775-4500
lrobbins@robbinsrussell.com

Douglas N. Letter
Counsel of Record
Todd B. Tatelman
Megan Barbero
Josephine Morse
Adam A. Grogg
Jonathan B. Schwartz
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF
REPRESENTATIVES
219 Cannon House Building
Washington, D.C. 20515
(202) 225-9700
douglas.letter@mail.house.gov
_______________

Counsel for Respondent Committees

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................... ii
OPPOSITION TO APPLICATION TO RECALL AND STAY THE MANDATE ........ 1
BACKGROUND ............................................................................................................. 3
ARGUMENT ................................................................................................................ 15
I.

II.

A Stay Should Be Denied.................................................................................. 15
A.

The Second Circuit’s opinion is correct, is not in conflict with any
decision by another court of appeals, and is unlikely to be
reviewed or reversed by this Court........................................................ 15

B

The irreparable harm that a stay would cause Congress and the
public outweighs whatever harm enforcement of the subpoena
would cause Applicants .......................................................................... 28

If the Court Nevertheless Grants a Stay, It Should Expedite
Consideration of Certiorari ............................................................................... 32

CONCLUSION............................................................................................................. 32

i

 TABLE OF AUTHORITIES
Cases

Page(s)

Barenblatt v. United States,
360 U.S. 109 (1959) ................................................................................................ 17
Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan,
501 U.S. 1301 (1991) (Scalia, J., in chambers) .................................... 15, 28, 30, 31
In re Chapman,
166 U.S. 661 (1897) ................................................................................................ 30
Cheney v. U.S. District Court,
542 U.S. 367 (2004) .............................................................................. 23, 24, 25, 26
Clinton v. Jones,
520 U.S. 681 (1997) .............................................................................. 15, 21, 24, 26
Eastland v. U.S. Servicemen’s Fund,
421 U.S. 491 (1975) .........................................................................................passim
Hutcheson v. United States,
369 U.S. 599 (1962) ............................................................................................ 2, 20
Maryland v. King,
567 U.S. 1301 (2012) (Roberts, C.J., in chambers) ............................................... 15
McGrain v. Daugherty,
273 U.S. 135 (1927) .........................................................................................passim
New York Tr. Co. v. Eisner,
256 U.S. 345 (1921) ................................................................................................ 28
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) (en banc) ................................................................ 27
Nken v. Mukasey,
555 U.S. 1042 (2008) .............................................................................................. 32
Office of President v. Office of Indep. Counsel,
521 U.S. 1105 (1997) .......................................................................................... 2, 30
Office of President v. Office of Indep. Counsel,
525 U.S. 996 (1998) ............................................................................................ 2, 30

ii

 TABLE OF AUTHORITIES—Continued
Page(s)
Office of President v. Office of Indep. Counsel,
No. A-108, 1998 WL 438524 (U.S. Aug. 4, 1998)
(Rehnquist, C.J., in chambers)............................................................................... 31
Packwood v. Senate Select Comm. on Ethics,
510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers) ................................. 2, 18, 31
Purcell v. Gonzalez,
549 U.S. 1 (2006) (per curiam) ............................................................................... 32
Quinn v. United States,
349 U.S. 155 (1955) ................................................................................................ 17
Rubin v. United States,
524 U.S. 1301 (1998) (Rehnquist, C.J., in chambers) ........................................... 31
Rubin v. United States,
525 U.S. 990 (1998) ............................................................................................ 2, 30
Senate Select Comm. on Presidential Campaign Activities v. Nixon,
498 F.2d 725 (D.C. Cir. 1974) (en banc) ................................................................ 27
Sinclair v. United States,
279 U.S. 263 (1929) ............................................................................................ 2, 20
Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080 (2017) ...................................................................................... 28, 32
Trump v. Mazars USA, LLP,
940 F.3d 710 (D.C. Cir. 2019) .......................................................................... 25, 26
Trump v. Mazars USA, LLP,
No. 19A545, 2019 WL 6328115 (U.S. Nov. 25, 2019) .............................................. 3
United States v. Burr,
25 F. Cas. 30 (No. 14,692d) (C.C.D. Va. 1807) ................................................ 15, 27
United States v. Nixon,
418 U.S. 683 (1974) .............................................................................. 21, 23, 24, 25
United States v. Rumely,
345 U.S. 41 (1953) .................................................................................................. 25

iii

 TABLE OF AUTHORITIES—Continued
Page(s)
Watkins v. United States,
354 U.S. 178 (1957) ...................................................................................... 4, 20, 25
Williams v. Zbaraz,
442 U.S. 1309 (1979) (Stevens, J., in chambers) ................................................... 15
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .................................................................................................... 28
Constitutional Provisions
U.S. Const. art. I, § 1 ..................................................................................................... 3
U.S. Const. art. I, § 5, cl. 2....................................................................................... 4, 25
Legislative Matters
3 Annals of Cong. 536 (1792) ....................................................................................... 26
5 Annals of Cong. 400 (1796) ....................................................................................... 26
165 Cong. Rec. H2698 (daily ed. Mar. 13, 2019)........................................................... 7
165 Cong. Rec. H3482 (daily ed. May 8, 2019) ....................................................... 9, 10
165 Cong. Rec. H8410 (daily ed. Oct. 23, 2019) ............................................................ 9
H.R. 1, 116th Cong. (2019) .......................................................................................... 11
H.R. 1039, 116th Cong. (2019) ...................................................................................... 7
H.R. 1404, 116th Cong. (2019) ...................................................................................... 7
H.R. 1474, 116th Cong. (2019) .................................................................................... 11
H.R. 1617, 116th Cong. (2019) .................................................................................... 11
H.R. 2424, 116th Cong. (2019) .................................................................................... 10
H.R. 2513, 116th Cong. (2019) ...................................................................................... 7
H.R. 2514, 116th Cong. (2019) ...................................................................................... 7
H.R. 4617, 116th Cong. (2019) ...................................................................................... 9

iv

 TABLE OF AUTHORITIES—Continued
Page(s)
H.R. Rep. No. 29-684 (1846) ........................................................................................ 27
H.R. Rep. No. 29-686 (1846) ........................................................................................ 26
H.R. Rep. No. 116-40 (2019) .................................................................................. 4, 5, 6
H. Res. 206, 116th Cong. (2019) .............................................................................. 5, 19
H. Res. 507, 116th Cong. (2019) .................................................................................. 25
Oversight of Nonprofit Organizations: A Case Study on the Clinton
Foundation, Hearing Before H. Comm. on Oversight & Gov’t
Reform, 115th Cong. (2018) ................................................................................... 22
S. Rep. No. 104-280 (1996) .......................................................................................... 27
S. Res. 120, 104th Cong. (1995)............................................................................. 21, 27
Rules of the House of Representatives, 116th Cong.
House Rule X.1............................................................................................................... 4
House Rule X.11............................................................................................................. 4
House Rule XI.2 ............................................................................................................. 4
Other Authorities
3 Asher C. Hinds, Hinds’ Precedents of the House of
Representatives (1907) ........................................................................................... 26
In re Capital One, N.A. McLean, Va. Capital One Bank (U.S.A.), N.A.
Glen Allen, Va., Enforcement Action No. 2018-080, 2018 WL
5384428
(O.C.C. Oct. 23, 2018) ............................................................................................... 6
Luke Harding, Deutsche Bank Faces Action Over $20 Bn Russian
Money-Laundering Scheme, Guardian, Apr. 17, 2019,
https://perma.cc/ZVT8-L65A .................................................................................... 6
Oren Dorell, Trump’s Business Network Reached Alleged Russian
Mobsters, USA Today, Mar. 28, 2017, https://perma.cc/7UY2-4VCM .................... 6

v

 TABLE OF AUTHORITIES—Continued
Page(s)
Press Release, U.S. House of Representatives Permanent Select
Comm. on Intelligence, Chairman Schiff Statement on House
Intelligence Committee Investigation (Feb. 6, 2019),
https://perma.cc/DTA5-4PNG .................................................................................. 8
Press Release, U.S. Senate Select Comm. on Intelligence, Chairman
Burr Statement on Russia’s Use of Social Media (Oct. 8, 2019),
https://perma.cc/A6ND-PEUY.................................................................................. 3
Ronald D. Rotunda, Presidents and Ex-Presidents As Witnesses,
1975 U. Ill. L.F. 1 ................................................................................................... 27

vi

 OPPOSITION TO APPLICATION TO RECALL AND STAY THE MANDATE
Applicants ask this Court to halt the functions of a coordinate branch of
government by restraining valid Congressional inquiries and enjoining compliance
with subpoenas issued to private financial institutions for non-privileged
information. That request should be denied.
More than one-third of the 116th Congress has elapsed since two
Congressional Committees issued document subpoenas to two financial institutions.
The Permanent Select Committee on Intelligence and the Committee on Financial
Services of the United States House of Representatives both issued subpoenas to
Deutsche Bank. The Financial Services Committee also issued a subpoena to
Capital One. The subpoenas seek, among other types of documents, non-privileged
financial records relating to President Donald J. Trump and certain of his business
entities and relatives.
Faithfully applying this Court’s precedents addressing Congressional
subpoenas, two levels of the federal judiciary have upheld those subpoenas. Each
concluded that the Committees issued the subpoenas in furtherance of valid
legislative purposes and that the subpoenas seek documents relevant to subjects on
which legislation “may be had.” Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491,
508 (1975).
Applicants respond with inherently fact-bound arguments. They do not
question that Congress could enact legislation on the topics the Committees are
investigating. Nor do they question that Congress can issue subpoenas—including
subpoenas seeking the President’s business records from third parties. Such
1

 “factbound determination[s] of the nature and scope of [Congressional]
investigation[s]” are unlikely candidates for certiorari. Packwood v. Senate Select
Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist, C.J., in chambers).
Applicants’ arguments do not demonstrate that this dispute merits the
Court’s review. Under this Court’s precedents, the presence of a valid legislative
purpose, not the absence of any other purpose, determines the lawfulness of
Congressional subpoenas. See, e.g., Hutcheson v. United States, 369 U.S. 599, 61617 (1962) (opinion of Harlan, J.); Sinclair v. United States, 279 U.S. 263, 295 (1929).
Nor is this Court’s review appropriate just because the subpoenas seek information
concerning the President. See, e.g., Office of President v. Office of Indep. Counsel,
525 U.S. 996 (1998); Rubin v. United States, 525 U.S. 990 (1998), and Office of
President v. Office of Indep. Counsel, 521 U.S. 1105 (1997) (each denying certiorari
in cases in which information concerning the President was ordered to be disclosed).
Moreover, Applicants have not shown that any harm they will suffer if the
subpoenas take effect outweighs the severe harm to the Committees and to the
public if the House continues to be deprived of information it urgently needs to
exercise its constitutional functions. Legislative efforts to secure the financial
system from abuse have obvious importance. And nothing is more urgent than
efforts to guard against foreign influence in our systems for electing officials,
particularly given the upcoming 2020 elections. There is bipartisan agreement that
such interference is an imminent threat. As Senate Intelligence Committee
Chairman Richard Burr explained, “Russia is waging an information warfare

2

 campaign against the U.S. that didn’t start and didn’t end with the 2016 election.” 1
With the 2020 elections rapidly approaching, Congress needs to determine if
legislation is warranted to protect against such threats of foreign interference now,
and it needs good information to do so.
This Court should deny a stay. This Court recently stayed enforcement of a
Congressional subpoena issued by a different Committee for different legislative
purposes in Trump v. Mazars USA, LLP, No. 19A545, 2019 WL 6328115 (U.S. Nov.
25, 2019), but, as the judges below recognized, the resolution of that case turned on
separate facts. If the Court does grant a stay in this case, the Committees respectfully request that the Court either treat the stay papers here as a certiorari petition
or condition any stay on the expeditious filing of such a petition, to ensure that this
Court may consider the petition on an expedited basis.
BACKGROUND
1. The Constitution vests “[a]ll legislative Powers” in Congress. U.S. Const.
art. I, § 1. But Congress “cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or
change.” McGrain v. Daugherty, 273 U.S. 135, 175 (1927). It follows, as this Court
held long ago, that the power to conduct oversight and investigations—a “power of
inquiry[,] with process to enforce it—is an essential and appropriate auxiliary to the

Press Release, U.S. Senate Select Comm. on Intelligence, Chairman Burr
Statement on Russia’s Use of Social Media (Oct. 8, 2019), https://perma.cc/A6NDPEUY (“Chairman Burr Press Release”).
1

3

 legislative function.” Id. at 174. Congress’s power to investigate is “broad.”
Watkins v. United States, 354 U.S. 178, 187 (1957).
2. This case concerns three subpoenas: an identical pair of subpoenas issued
by the Financial Services Committee and the Intelligence Committee to Deutsche
Bank AG (“Deutsche Bank”) and a third subpoena issued by the Financial Services
Committee to Capital One Financial Corporation (“Capital One”).
The “jurisdiction and related functions” of the Committees are established by
House Rule X. See U.S. Const. art. I, § 5, cl. 2 (“Each House may determine the
Rules of its Proceedings[.]”). Under House Rule X, the Financial Services
Committee’s jurisdiction includes, among other things, “[b]anks and banking,”
“[f]inancial aid to commerce and industry,” “[i]nternational finance,” and
“[i]nternational financial and monetary organizations.” House Rule X.1(h)(1), (3),
(5)-(6). The Intelligence Committee has jurisdiction over U.S. intelligence agencies
and “[i]ntelligence and intelligence-related activities of all other departments and
agencies of the Government.” House Rule X.11(b)(1). To fulfill their
responsibilities, each of the Committees may “require, by subpoena or
otherwise, . . . the production of such . . . documents as it considers necessary.”
House Rule XI.2(m)(1).
The Financial Services Committee’s Investigation
3. The Financial Services Committee is reviewing abuses of the financial
system, risky lending practices by major financial institutions, and weaknesses in
the existing regulatory oversight. H.R. Rep. No. 116-40, at 78-79, 84-85 (2019).

4

 In March 2019, the House adopted a resolution endorsing “efforts to close
loopholes that allow corruption, terrorism, and money laundering to infiltrate our
country’s financial system.” H. Res. 206, 116th Cong. (2019). The House recognized
that illicit money-laundering schemes often funnel money through legitimate
investments, such as high-end real estate, to conceal the source of the funds. See id.
(“[T]he influx of illicit money, including from Russian oligarchs, has flowed largely
unimpeded into the United States through these anonymous shell companies and
into U.S. investments, including luxury high-end real estate.”).
To study these issues and potential reforms, the Financial Services
Committee is specifically investigating, among other issues, the “implementation,
effectiveness, and enforcement of anti-money laundering/counter-financing of
terrorism laws and regulations” and the “risks of money laundering and terrorist
financing in the real estate market.” H.R. Rep. No. 116-40, at 84-85 (2019). The
Financial Services Committee is also investigating whether existing policies and
programs at financial institutions are adequate to ensure the safety and soundness
of lending practices and the prevention of loan fraud. This includes “examining
financial regulators’ supervision of the banking, thrift and credit union industries
for safety and soundness and compliance with laws and regulations” and
“monitor[ing] how enhanced prudential standards are being applied to the largest
banks operating in the United States, including foreign-based institutions.” Id. at
78-79.

5

 As part of those efforts, the Financial Services Committee issued document
subpoenas to nine financial institutions in April 2019, including the subpoenas to
Deutsche Bank and Capital One. 2 App. 6a n.1, 74a. Those subpoenas demand
documents relating to the banks’ compliance with the Bank Secrecy Act, the efficacy
of the banks’ anti-money-laundering and due diligence compliance programs, and
the soundness of the banks’ lending practices. The subpoena to Deutsche Bank also
seeks documents relating to specific accounts, including accounts held by President
Trump, his family, and his businesses. See CA2 J.A. 37-42. The Capital One
subpoena requests documents relating to the accounts, finances, and other affairs of
President Trump’s businesses, as well as compliance and other records created or
received by Capital One in connection with those businesses. See id. at 52-53.
Deutsche Bank and Capital One—which each have long provided banking
services to President Trump, his family, and his businesses—have paid significant
fines in recent years relating to alleged deficiencies in their anti-money-laundering
programs. 3 Moreover, President Trump’s business affairs have been the subject of
many public reports, including reports revealing that several Trump properties
were purchased using anonymous shell companies and funded by Russian oligarchs
alleged to have previously engaged in money laundering. See, e.g., Oren Dorell,

Several of the subpoenas seek information about individuals and businesses
different from the Applicants here.
3 Luke Harding, Deutsche Bank Faces Action Over $20 Bn Russian MoneyLaundering Scheme, Guardian, Apr. 17, 2019, https://perma.cc/ZVT8-L65A; In re
Capital One, N.A. McLean, Va. Capital One Bank (U.S.A.), N.A. Glen Allen, Va.,
Enforcement Action No. 2018-080, 2018 WL 5384428, at *1-2 (O.C.C. Oct. 23, 2018).
2

6

 Trump’s Business Network Reached Alleged Russian Mobsters, USA Today, Mar. 28,
2017, https://perma.cc/7UY2-4VCM.
Committee Chairwoman Waters explained that these concerns are “precisely
why the Financial Services Committee is investigating the questionable financing
provided to President Trump and The Trump Organization by banks like Deutsche
Bank to finance its real estate properties.” 165 Cong. Rec. H2698 (daily ed. Mar. 13,
2019). The Financial Services Committee has made clear that it is “not
investigating whether [President Trump] has violated any law.” App. 66a. Instead,
the Committee seeks information to inform pending and future legislative solutions
to the serious money-laundering problems that continue to plague U.S. financial
institutions and the international banking system and to inform itself about the
processes in place at financial institutions to ensure that their lending practices are
safe and sound.
The House is currently considering or has passed legislation on these topics,
including H.R. 1404, 116th Cong. (2019) (bill to require Executive Branch agencies
to submit an assessment to Congress regarding the financial holdings of Russian
President Vladimir Putin and top Kremlin-connected oligarchs) (passed by the
House March 12, 2019); H.R. 2513, 116th Cong. (2019) (bill to reform corporate
beneficial ownership disclosures and increase transparency) (passed by the House
October 22, 2019); H.R. 2514, 116th Cong. (2019) (bill to strengthen the Bank
Secrecy Act and anti-money-laundering laws, including by improving federal agency
oversight of financial institutions) (passed by the House October 28, 2019); and H.R.

7

 1039, 116th Cong. (2019) (bill to streamline requirements for currency transaction
reports and suspicious activity reports).
The Intelligence Committee’s Investigation
4. The Intelligence Committee is investigating the counterintelligence risks
from efforts by Russia and other foreign powers to influence the U.S. political
process during and since the 2016 election, including potential leverage that foreign
actors may have over President Trump, his family, and his businesses. In
connection with that investigation, the Intelligence Committee is evaluating
whether the current structure, legal authorities, and resources of the federal
agencies tasked with intelligence, counterintelligence, and law enforcement are
adequate to combat such threats to national security. See also Comms. Br. 15-19,
CA2 Doc. No. 65 (providing additional detail on the Intelligence Committee’s
investigation and the facts surrounding it).
Driving that investigation is the risk that hostile state actors will continue to
interfere in the American electoral process and the possible need for legislative
reforms to address that risk. As Chairman Schiff has explained, the Intelligence
Committee has undertaken to “provide the American people with a comprehensive
accounting of” Russian interference in the 2016 election, “and what the United
States must do to protect itself from future interference and malign influence
operations.” 4 And the need for legislation is pressing. As Representative Lofgren

Press Release, U.S. House of Representatives Permanent Select Comm. on
Intelligence, Chairman Schiff Statement on House Intelligence Committee
4

8

 observed, “the 2020 Federal elections are fast-approaching. Public confidence and
trust in our elections is of the utmost importance.” 165 Cong. Rec. H8410 (daily ed.
Oct. 23, 2019). The information gleaned from the Intelligence Committee’s
investigation will be used to “develop legislation and policy reforms to ensure the
U.S. government is better positioned to counter future efforts to undermine our
political process and national security.” 5
The Intelligence Committee is investigating, among other issues: (1) “[t]he
extent of any links and/or coordination between the Russian government, or related
foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests”; (2) “[w]hether any foreign actor has sought to compromise or
holds leverage, financial or otherwise, over Donald Trump, his family, his business,
or his associates”; and (3) “[w]hether President Trump, his family, or his associates
are or were at any time at heightened risk of, or vulnerable to, foreign exploitation,
inducement, manipulation, pressure, or coercion, or have sought to influence U.S.
government policy in service of foreign interests.” Chairman Schiff Press Release;
see 165 Cong. Rec. H3482 (daily ed. May 8, 2019).

Investigation (Feb. 6, 2019), https://perma.cc/DTA5-4PNG (“Chairman Schiff Press
Release”).
5 Chairman Schiff Press Release; see H.R. 4617, 116th Cong. (2019) (bill to
establish duty to report election interference from foreign entities and to limit
political spending and election interference by foreign entities) (passed by the House
on October 23, 2019).
9

 To further these investigations regarding the President’s foreign financial
ties and the extent of foreign powers’ influence over him and our elections, on April
11, 2019, the Intelligence Committee issued a subpoena to Deutsche Bank, seeking
the same records sought by the Financial Services Committee’s subpoena. As
Chairman Schiff has explained, this investigation and the requested financial
information concerning President Trump will inform the Committee’s consideration
of legislative reforms and its oversight of the intelligence community. 165 Cong.
Rec. H3482 (daily ed. May 8, 2019). That subpoena is “vital to fully identify the
scope of this threat” of foreign financial leverage and “essential to . . . devis[ing]
effective legislative changes, policy reforms, and appropriations priorities.” 165
Cong. Rec. H3482. The Intelligence Committee’s investigation “will inform a widerange of legislation and appropriations decisions,” including, for example, how best
to expose “conflicts of interest that arise from financial entanglements of individuals responsible for [the Nation’s] foreign policy,” to prevent foreign governments
from “us[ing] American corporations to secretly funnel donations or engage in
money laundering,” and to “[s]trengthen legal authorities and capabilities for our
intelligence and law enforcement agencies to better track illicit financial flows.” Id.
As with the Financial Services Committee’s subpoenas, the Intelligence
Committee’s subpoena seeks information related to several pending legislative
proposals—for example, requiring federal campaign officials to notify law
enforcement if foreign agents offer them assistance and to report all meetings with
foreign agents. See H.R. 2424, 116th Cong. (2019). Other bills would mandate an

10

 intelligence threat assessment before every federal general election, H.R. 1474,
116th Cong. (2019), and require the Director of National Intelligence to submit to
Congress intelligence assessments of Russian intentions relating to North Atlantic
Treaty Organization and Western allies, H.R. 1617, 116th Cong. (2019) (passed the
House on March 12, 2019). Yet another would improve election security and
oversight and provide for national strategy and enforcement to combat foreign
election interference. H.R. 1, 116th Cong. (2019) (passed the House on March 8,
2019). With primary campaigns in full swing and the 2020 election cycle
approaching, the Intelligence Committee urgently needs the information sought
from Deutsche Bank.
5. Before the subpoenas’ response date, Applicants President Trump, in his
individual capacity, his three oldest children, and certain related business entities
filed suit against the banks seeking to enjoin compliance with the subpoenas. App.
6a-7a. Applicants moved for a preliminary injunction, and the Committees
intervened. Id. at 7a. After expedited briefing, on May 22, 2019, the district court
denied Applicants’ motion for a preliminary injunction in an opinion delivered from
the bench. Id.
On December 3, the court of appeals affirmed in substantial part by a 2-1
vote. See App. 1a-2a. In a 106-page opinion, the majority concluded that Applicants
had not demonstrated a likelihood of success on any of their statutory or constitutional claims. Explaining that Applicants had not asserted any constitutionally
based privilege that might protect the banks’ records from production, the court

11

 rejected Applicants’ argument that the Committees’ subpoenas exceeded constitutional limits on Congress’s power to investigate. App. 10a, 45a.
The court of appeals first addressed this Court’s cases recognizing Congress’s
“broad” power to obtain information in aid of its legislative authority (App. 47a),
stating that a congressional inquiry into private affairs is permissible if it relates to
a “valid legislative purpose,” id. at 49a-50a. The court then confirmed that the subpoenas meet that test. The majority explained that “[t]he Chair of the Intelligence
Committee has identified several purposes of that committee’s investigation,”
including protecting the American electoral process from foreign intervention. See
App. 62a-63a. The court also recognized the Financial Services Committee’s purposes of probing and considering legislation relating to financial institutions and international money laundering. See App. 61a-62a. The court held that these purposes are sufficiently related to the documents sought by the subpoenas. App. 63a64a, 74a; see also App. 80a (“[T]he high significance of the valid legislative purposes
demonstrates that the ‘predominant purpose’ of the Committees’ inquiries cannot be
said to be ‘only’ to invade private rights.”); App. 135a (Livingston, J., dissenting in
part) (acknowledging link between Intelligence Committee’s investigation and “this
President’s affairs, as a recent candidate”). Those purposes were “significantly
different” from the legislative purposes identified by the House Oversight
Committee in the Mazars case. App. 52a n.46.
The court of appeals recognized that Congress is entitled to a presumption
that its stated legislative purposes are genuine. The court, however, saw no “need”

12

 to apply that presumption here. See App. 76a-77a. It explained that it could not
enjoin compliance with validly predicated subpoenas based on Applicants’ suspicion
that members of the Committees want to embarrass the President, because courts
“do not look to the motives alleged to have prompted” a legislative inquiry. App.
75a (quoting Eastland, 421 U.S. at 508). In any event, Applicants have expressly
disclaimed “any objection based on inquiry into [the] motive[s]” of particular
members. Id.
Next, and again conservatively, the court of appeals weighed the Committees’
valid legislative purposes against Applicants’ privacy interests. See App. 66a-68a.
While acknowledging that the President’s privacy interests “should be accorded
more significance than those of an ordinary citizen,” App. 103a, the majority
reasoned that the public’s interest in the Committee’s efforts relating to election
integrity, national security, money laundering, and foreign blackmail were “of the
highest order” and outweighed Applicants’ personal interest in “nondisclosure of
financial documents concerning their businesses.” App. 68a-69a, 103a-104a. The
court ordered immediate compliance with most parts of the subpoenas, but directed
an extremely limited remand to ensure non-disclosure of sensitive personal
information “having no relationship to the Committees’ legislative purposes” and to
address related concerns in a few specific areas. See App. 84a, 86a-87a.
Finally, the court of appeals rejected Applicants’ argument that the
Committees were engaged in impermissible law enforcement. As the majority
explained, “a permissible legislative investigation does not become impermissible

13

 because it might reveal evidence of a crime.” App. 77a (quoting Appellants’ Br. 22).
In addition, the court concluded that the balance of equities favors the Committees,
which “have already been delayed in the receipt of the subpoenaed material since
April 11 when the subpoenas were issued” and “need the remaining time to analyze
the material, hold hearings, and draft bills for possible enactment.” App. 102a. 6
Judge Livingston concurred in part and dissented in part. The “present
record,” in her view, “does not permit a full assessment” of the merits of the Committee’s entitlement to records or of the “balance of hardships with regard to specific
disclosures.” App. 158a. Judge Livingston would have remanded for the district
court to “implement a procedure” in which Applicants could object to the disclosure
of “specific portions of the assembled material.” App. 115a.
The court of appeals simultaneously issued its mandate and ordered prompt
compliance with the subpoenas, subject to a procedure to evaluate objections for the
limited categories of documents noted above. But the court provided a seven-day
stay to afford Applicants the opportunity to apply to this Court for a stay pending
disposition of a petition for certiorari. On December 4, Applicants moved in the
court of appeals for a recall and stay of the mandate, CA2 Doc. No. 229-1, which the
Committees opposed, CA2 Doc. No. 234. Applicants then filed an emergency
application in this Court for a recall and stay of the mandate and an administrative

The majority and the dissent agreed that Applicants’ statutory challenges
were without merit. See App. 24a-44a, 110a. Applicants do not advance their
statutory claims as grounds for a stay. See Stay App. 8.
6

14

 stay pending disposition of the application. On December 6, Justice Ginsburg
recalled and stayed the court of appeals’ mandate until 5 p.m. on December 13.
ARGUMENT
I.

A Stay Should Be Denied
An applicant for a stay “must demonstrate (1) a reasonable probability that

this Court will grant certiorari, (2) a fair prospect that the Court will then reverse
the decision below, and (3) a likelihood that irreparable harm [will] result from the
denial of a stay.” Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in
chambers) (quotation marks omitted). These conditions “are necessary [but] not
necessarily sufficient” to grant a stay. Barnes v. E-Sys., Inc. Grp. Hosp. Med. &
Surgical Ins. Plan, 501 U.S. 1301, 1304 (1991) (Scalia, J., in chambers). Before
granting a stay, this Court also must (4) “balance the equities—[by] explor[ing] the
relative harms to applicant and respondent, as well as the interests of the public at
large.” Id. at 1305 (quotation marks omitted). “Where there is doubt, it should
inure to the benefit of those who oppose grant of the extraordinary relief which a
stay represents.” Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) (Stevens, J., in
chambers).
A. The Second Circuit’s opinion is correct, is not in conflict with any
decision by another court of appeals, and is unlikely to be
reviewed or reversed by this Court.
Congressional subpoenas have “long been held to be a legitimate use by
Congress of its power to investigate.” Eastland, 421 U.S. at 504. That these three
subpoenas seek information concerning the President “can scarcely be thought a
novelty.” Clinton v. Jones, 520 U.S. 681, 704 (1997); see United States v. Burr, 25 F.
15

 Cas. 30, 34 (No. 14,692d) (C.C.D. Va. 1807) (Marshall, C.J.). These subpoenas
offend neither this Court’s precedent nor our Nation’s history and traditions. They
do not seek to compel the President to do anything at all, and the President raises
no claim of privilege. This Court should allow the Committees finally to obtain the
information needed to proceed with their urgent legislative and oversight
responsibilities.
1. None of Applicants’ arguments warrants review or is likely to result in
reversal.
a. While Applicants treat the stay in Mazars as if it were determinative of
the stay here, the two cases are not interchangeable. Both the majority and the
dissent in the court of appeals recognized that the subpoenas here are “significantly
different” from those at issue in Mazars. App. 65a (majority opinion), 131a (partial
dissenting opinion). As the court of appeals explained, “[t]he subpoena challenged
in Mazars seeks four categories of documents somewhat different from those sought
by the subpoenas challenged on this appeal, and seeks the documents for purposes
significantly different from the Committees’ purposes [here].” App. 52a n.46.
Both cases present issues about the validity of Congressional subpoenas, but
the answers turn largely on the particular legislative purposes being pursued by
each Committee and other facts specific to each subpoena. In Mazars, the
petitioners challenge Congress’s authority to enact any legislation on the topics of
the Oversight Committee’s investigation. See Pet. 25-31, Mazars, No. 19-715 (filed
Dec. 4, 2019). Here, by contrast, Applicants do not and cannot dispute that

16

 Congress can constitutionally pass legislation concerning, among other topics,
securing elections from foreign influence and combatting money laundering, see
App. 60a-64a. Because Congress’s power to investigate “is as penetrating and farreaching as the potential power to enact and appropriate under the Constitution,”
no one disputes that the Committees in this case could constitutionally issue
subpoenas in these areas too. Barenblatt v. United States, 360 U.S. 109, 111 (1959);
see also Quinn v. United States, 349 U.S. 155, 160 (1955).
Instead, Applicants press fact-bound disputes about the particular purposes
underlying these subpoenas. Stay App. 15-17. According to Applicants, the purpose
here must be law enforcement, not legislation, because the subpoenas “look nothing
like a legislative inquiry.” Id. at 15. Both courts below correctly rejected that
argument. In doing so, the court of appeals independently evaluated the “evidence
[of] valid legislative purposes,” finding no need to rely on the “‘presumption’ that the
stated legislative purposes are the ‘real object’ of the Committees’ investigation.”
App. 76a-77a (quoting McGrain, 273 U.S. at 178). It then conducted a thorough
review of the record to “[i]dentify[] the Committees’ legislative purpose[s]” and
whether those purposes justified the need for the disclosures required by the
subpoenas. See App. 58a-69a, 73a-75a. It concluded that the “legislative inquiry”
here was “in fact [] related to [] legislative purpose[s].” App. 64a. The majority
likewise rejected claims that the President was improperly “targeted.” Id. at 73a74a. It reasoned that in the circumstances here—a borrower obtaining more than
$130 million in loans from a bank “fined in connection with a $10 billion money

17

 laundering scheme” when no other bank would lend to him—it is “appropriate” to
investigate “how well banking regulators are discharging their responsibilities and
whether new legislation is needed.” Id. at 73a n.67.
Applicants provide no reason to suggest that this Court would disagree with
the court of appeals’ thorough evaluation of the House’s substantial legislative
activity and the Committees’ own statements of purpose. Indeed, the dissent in the
court of appeals agreed that the “House Intelligence Committee [] has an oversight
function to which its subpoena could conceivably relate.” App. 135a n.20. Although
the dissent would have remanded for more granular recitation of the Committee’s
legislative purposes and so that Applicants could lodge objections “to specific
portions of the assembled material,” id. at 115a, such “factbound determination[s] of
the nature and scope of [Congressional] investigation[s]” are not worthy of this
Court’s review, or likely to be reversed if this Court does grant review. Packwood,
510 U.S. at 1320 (Rehnquist, C.J., in chambers) (denying Senator’s request for stay
of Congressional subpoena pending certiorari).
Applicants advocate the contrary conclusion only by mischaracterizing and
selectively quoting the record. Quoting one sentence from an Intelligence Committee press release, Applicants assert that the Committee’s investigation was nothing
more than “law enforcement.” Stay App. 16. But that same press release explains
that the investigation seeks to “provide the American people with a comprehensive
accounting of what happened, and what the United States must do to protect itself
from future interference and malign influence operations.” Chairman Schiff Press

18

 Release, quoted at Stay App. 16. Moreover, Applicants fail to acknowledge that the
same press release makes clear that the investigation would assist the Intelligence
Committee in “plans to develop legislation and policy reforms to ensure the U.S.
government is better positioned to counter future efforts to undermine our political
process and national security.” Id.
Applicants similarly mischaracterize the purposes of the investigation by the
Financial Services Committee. Applicants misquote one of 23 “whereas” clauses 7
and one of five “resolved” clauses from H. Res. 206. The other 22 whereas clauses
dispel the notion that the investigation was “all law enforcement” (Stay App. 16) by
highlighting “substantial room for improvement” and “significant gaps in [the
existing anti-money laundering/countering the financing of terrorism] framework.”
H. Res. 206 at 2. The remainder of the operative portion of the resolution explains
that the House “supports efforts to close loopholes that allow corruption, terrorism,
and money laundering to infiltrate our country’s financial system.” Id. at 5. These

Selectively quoting from that single whereas clause, Appellants leave the
impression that H. Res. 206 was referencing the President when it “lament[ed]
‘financial institutions and individuals’ are not ‘facing convictions and sentences.’”
Stay App. 16 (quoting H. Res. 206 at 4). The full text of that clause dispels any such
notion and makes plain that Congress was criticizing the practice of deferred
prosecution and non-prosecution agreements for corporations, not the President:
“Whereas there are financial institutions and individuals employed therein which
continue to engage in egregious violations of the Bank Secrecy Act and enter into
deferred prosecution agreements and non-prosecution agreements rather than
facing convictions and sentences corresponding to the severity of their violations.”
H. Res. 206 at 4; see also App. 132a n.17 (Livingston, J., dissenting in part)
(correctly noting that H. Res. 206 does not “reference the President and his family”).
7

19

 efforts to fill gaps in the financial institution regulatory framework are
quintessentially legislative.
To be sure, the Committees’ investigations may uncover violations of law.
See Stay App. 16. But this Court “long ago rejected” the argument that a legislative
investigation is invalid because “it might possibly disclose crime or wrongdoing on
an executive branch official’s part.” App. 78a (alteration marks omitted) (discussing
McGrain, 273 U.S. at 179-80 and Sinclair, 279 U.S. at 295). What is more, this
Court has consistently recognized that subpoenas can serve multiple purposes
simultaneously and that it is the presence of a valid legislative purpose, not the
absence of any other purpose, that determines their lawfulness. See, e.g.,
Hutcheson, 369 U.S. at 617 (opinion of Harlan, J.) (holding subpoena valid even
though the “Committee’s concern . . . was to discover whether . . . [union]
funds . . . had been used . . . to bribe a state prosecutor”); Sinclair, 279 U.S. at 290
(holding subpoena valid even though a committee member had said that, “[i]f we do
not examine Mr. Sinclair about th[e] matters [for which he was being prosecuted],
there is not anything else to examine him about”).
Nor, as Applicants have conceded, do the motives of any particular Members
bear on the subpoenas’ validity. See App. 75a. This Court’s precedents make plain
that motives do “not vitiate an investigation which had been instituted by a House
of Congress if that assembly’s legislative purpose is being served.” Id. at 50a
(emphasis omitted) (quoting Watkins, 354 U.S. at 200); see, e.g., id. at 50a n.45
(collecting similar cases); id. at 75a (“[I]n determining the lawfulness of a

20

 congressional inquiry, courts ‘do not look to the motives alleged to have prompted
it.’”) (quoting Eastland, 421 U.S. at 508).
Applicants’ argument that these subpoenas improperly target the President
likewise misses the mark. This Court has “unequivocally and emphatically
endorsed” the view that “a subpoena duces tecum could be directed to the
President.” Jones, 520 U.S. at 703-04 (citing United States v. Nixon, 418 U.S. 683
(1974)). Given that here the subpoenas were issued for legislative purposes by a
coordinate branch of government (not a private litigant) and directed to third-party
financial institutions (not the President personally), there is no basis to claim they
are invalid. Nor does the fact that the President (albeit “solely in his capacity as a
private citizen,” App. 10a) is among the Applicants here make this case worthy of
Supreme Court review. See Br. in Opp. 11-12, Trump v. Mazars USA, LLP, No. 19715 (filed Dec. 11, 2019).
Applicants argue that the “fact that the Committees claim to be using the
President, his businesses, and his family as a ‘case study’ confirms they lack a
legitimate legislative purpose.” Stay App. 17. Again, Applicants misstate both the
record and the law. The use of a case study to inform potential legislation does not
render a subpoena invalid. Examining concrete examples is a tried-and-true
manner of identifying gaps in existing laws and developing new legislation to
address those potential weaknesses. See, e.g., S. Res. 120, 104th Cong. (1995)
(establishing Special Committee to Investigate Whitewater Development Corporation to investigate (with subpoena power) and make recommendations for new laws

21

 or regulations); Oversight of Nonprofit Organizations: A Case Study on the Clinton
Foundation, Hearing Before H. Comm. on Oversight & Gov’t Reform, 115th Cong.
(2018). Here, it is not surprising that the Financial Services Committee is
evaluating whether current laws adequately address concerns about bank safety
and money laundering by seeking documents from an international financial
institution with a history of such violations and connections to a President with an
unprecedented web of complex financial arrangements. And the Financial Services
Committee has also subpoenaed information from several other financial
institutions about individuals and businesses separate from the Applicants here.
See App. 74a.
Applicants attempt to muddy the facts by talking about the “Committees”
generally, but the record could not be clearer that Applicants’ case study objection is
leveled only against “the subpoenas issued by the Committee on Financial
Services.” App. 131a (Livingston, J., dissenting in part); see also id. at 131a-133a
(repeatedly noting that the use of any such case study was limited to the Financial
Services Committee). Tellingly, Applicants say virtually nothing about the
subpoena the House Intelligence Committee issued “seek[ing] identical records”
from Deutsche Bank, App. 4a. The pressing “public need” to pursue investigations
concerning “national security and the integrity of elections,” the court below
correctly held, is ample justification, and Applicants offer no answer because they
have none. App. 68a-69a; see App. 135a n.20 (Livingston, J., dissenting in part)

22

 (acknowledging that the Intelligence Committee had identified a valid “oversight
function to which its subpoena could conceivably relate”).
b. Applicants argue that these subpoenas “fall far short of what is required
to subpoena the President.” Stay App. 17. Applicants say the court of appeals
incorrectly “treat[ed] these subpoenas as if they were issued ‘to any private individual.’” Id. at 14 (quoting App. 10a). That badly mischaracterizes both the facts of
this litigation and the opinion below.
The court of appeals drew a clear line between arguments that might be
available to the President when acting in his official capacity, like executive
privilege, and the general claim of invalidity that the President presses in his
individual capacity in this case. App. 10a. Unlike executive privilege, a claim that
the subpoenas exceeded the “constitutional authority of the Committees” is “a
protection that, if validly asserted, would be available to any private individual.”
Id. Even so, far from treating the case as one brought by any ordinary citizen, the
court of appeals employed a “more exacting” review precisely because the subpoenas
“concern[] the President” and because of the “‘high respect that is owed to the office
of the Chief Executive.’” Id. at 11a (quoting Cheney v. U.S. District Court, 542 U.S.
367, 385 (2004)). The fact that the court of appeals issued more than 160 pages of
opinions analyzing this Court’s precedents, the record, and each of Applicants’
arguments only further highlights the exacting and careful review performed.
More fundamentally, Applicants offer no support for the notion that courts
should, or may, apply an especially hard look in these circumstances. Unlike Nixon,

23

 this case involves no privilege assertion; indeed, in his individual capacity, the
President may be subjected to compulsory process by even a civil litigant seeking to
vindicate private rights. See Jones, 520 U.S. at 691-92, 705-06. Applicants’ only
other case, Cheney, involved a suit (1) by a private litigant; (2) under a statute that
created no private right of action; (3) in which the plaintiff sought to compel the
Vice President to disclose open-meetings information via mandamus; and (4) in
which the district court ordered broad discovery from the Vice President to
determine whether the statute applied in the first place. 542 U.S. at 373-75, 38687. The Cheney Court distinguished Nixon, where non-disclosure would have
frustrated the “essential functions of [another] branch,” from the case before it, in
which, at most, it “would be more difficult for private complainants to vindicate
Congress’ policy objectives under [the open-records statute].” Id. at 384-85.
The Committees here are a far cry from the Cheney plaintiffs; they are
exercising an “essential and appropriate auxiliary” of Congress’s core legislative
function. McGrain, 273 U.S. at 174. In connection with that legislative effort, this
Court has recognized that Congress must be permitted to investigate broadly even if
some inquiries “take[] the searchers up some ‘blind alleys,’” and occasionally with
no “predictable end result.” Eastland, 421 U.S. at 509.
c. Finally, Applicants’ argument that the House Rules “do not authorize” the
subpoena (Stay App. 19) was not raised by Applicants below and therefore is forfeited. See App. 53a n.47 (“Appellants have not made that ‘clear statement’ argu-

24

 ment in their briefs in this case.”). Further, the argument lacks merit, is not important enough for this Court’s review, and is no longer even relevant to this case.
The President (again, acting in his individual capacity) and several of his
business entities have repeatedly conceded that the House Rules “literally read” do
“permit” the issuance of other Congressional subpoenas. See Trump v. Mazars
USA, LLP, 940 F.3d 710, 742-43 (D.C. Cir. 2019) (citing Oral Arg. Tr. 38-39). That
should end the matter given that the interpretation in question concerns Congress’s
prerogative to “determine the Rules of its Proceedings,” not a statute. U.S. Const.
art. I, § 5, cl. 2.
The issue also lacks continuing significance. The 116th House has resolved
that the Rules it adopted delegate to the Committee “power to conduct oversight
into and to investigate . . . the President” and that Applicants’ contrary reading is
“plainly incorrect.” H. Res. 507, 116th Cong. (2019). The full House then “ratifie[d]” and “affirm[ed]” the three subpoenas at issue here. Id. Far from having
“insulate[d]” itself from committee investigations, Watkins, 354 U.S. at 205,
“Congress has demonstrated its full awareness of what is at stake,” United States v.
Rumely, 345 U.S. 41, 46 (1953).
2. It is not a sufficient reason for review that Applicants make separation-ofpowers arguments.
a. This case is not one of open inter-branch conflict. The Committees have
not requested any documents pertaining to the official functions of the Executive
branch. Cf. Nixon, 418 U.S. at 686; Cheney, 542 U.S. at 372. Nor have they sought

25

 to require the President, his family, or any member of the Executive branch to take
any action. Cf. Jones, 520 U.S. at 707-08; Cheney, 542 U.S. at 372. Instead, they
issued subpoenas to financial institutions seeking non-privileged records
maintained in the ordinary course of business.
b. “The fact that the subpoena[s] in this case seek[] information that
concerns the President of the United States adds a twist, but not a surprising one:
disputes between Congress and the President are a recurring plot in our national
story.” Mazars, 940 F.3d at 747. There is a long history of Congressional
subpoenas for testimony and documents concerning the President, including
subpoenas to third parties. Responding to a request regarding the Jay Treaty,
President Washington recognized that production of some papers “could be required
of him by either House of Congress as a right.” 5 Annals of Cong. 400-01, 759-60
(1796); see also 3 Annals of Cong. 536 (1792) (resolving “[t]hat the President of the
United States” cause production of papers). Half a century later, President John
Tyler partially complied with a Congressional document request. See 3 Asher C.
Hinds, Hinds’ Precedents of the House of Representatives § 1885 (1907). Though he
asserted “discretion” to withhold some material, he never contested Congress’s
power to make the demand. See id.
In 1846, select Congressional committees subpoenaed and took deposition
testimony from former Presidents Tyler and John Quincy Adams, as part of an
investigation into the misappropriation of government funds “placed under the
special direction of the President.” H.R. Rep. No. 29-686, at 9, 22-25, 27-29 (1846);

26

 H.R. Rep. No. 29-684, at 8-11 (1846). Though the committees determined that no
further action needed to be taken, incumbent President Polk was unable to forestall
a thorough inquiry. See Ronald D. Rotunda, Presidents and Ex-Presidents As
Witnesses, 1975 U. Ill. L.F. 1, 7-8.
In the modern era, a Senate committee subpoenaed President Nixon for the
tapes of his conversations with his former counsel John Dean. See Senate Select
Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)
(en banc). More recently, the Senate Whitewater Committee issued third-party
subpoenas to Sprint for White House call records, S. Rep. No. 104-280, at 49-50
(1996), and to the Rose Law Firm for billing records from the First Lady’s time in
private practice, id. at 11, 155; it also subpoenaed a White House lawyer’s notes of a
meeting with the President’s personal lawyers, id. at 237, all as part of its mission
to conduct oversight and make “recommendations for legislative . . . actions.”
S. Res. 120, 104th Cong. § 1(b)(5) (1995).
This historical practice is consistent with the founding-era understanding
that the President does not “stand exempt from the general provisions of the
constitution” that require everyone to comply with subpoenas. Burr, 25 F. Cas. at
34. James Monroe’s Attorney General furnished the same opinion, driving
President Monroe’s decision to provide testimony and written discovery in a court
martial. See Nixon v. Sirica, 487 F.2d 700, 710 n.42 (D.C. Cir. 1973) (en banc) (a
subpoena could “properly be awarded to the President of the United States”
(quoting Letter of William Wirt to John Quincy Adams, Jan. 13, 1818)); Rotunda,

27

 supra, at 6 n.23 (“Wirt’s Opinion Letter is important evidence of the law because it
was issued in the early days of the Republic.”).
That long history of legislative oversight cuts against a stay that would
further restrict the House’s ability to fulfill its constitutional duties to investigate
and legislate in the public interest. Cf. New York Tr. Co. v. Eisner, 256 U.S. 345,
349 (1921) (“[A] page of history is worth a volume of logic.”).
B. The irreparable harm that a stay would cause Congress and the
public outweighs whatever harm enforcement of the subpoena
would cause Applicants.
“Before issuing a stay, it is ultimately necessary to balance the equities—to
explore the relative harms to applicant and respondent, as well as the interests of
the public at large.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087
(2017) (quotation and alteration marks omitted). Contrary to Applicants’
suggestion (Stay App. 10), the Court considers the balance of equities in all cases,
not just in the subset of cases thought to be “close” ones. See id.; Barnes, 501 U.S.
at 1304-05; see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)
(balance of equities must be considered “[i]n each case” before awarding the
“extraordinary remedy” of a preliminary injunction).
Here, each day of delay harms the Committees by depriving them of
important information they need to carry out their constitutional responsibilities.
That harm outweighs any harm Applicants will suffer from the banks’ compliance
with the subpoenas.
1. Applicants insist that the Committees’ need for this information is “not
urgent in any meaningful sense.” Stay App. 22. According to Applicants, the Com28

 mittees’ “only possible need” for this information is for use in “general legislation”
related to “broader problems like global money laundering and the supervision of
the banking, thrift, and credit union industries.” Id. But Applicants nowhere
explain how efforts to protect the integrity of the U.S. financial system and undermine international money laundering cannot be urgent matters in their own right.
Even more obviously time sensitive—and barely addressed by Applicants—is
the Intelligence Committee’s ongoing investigation of foreign influence in the U.S.
political process during and since 2016. That effort could not be more urgent. As
Senate Intelligence Committee Chairman Burr has explained, “Russia is waging an
information warfare campaign against the U.S. that didn’t start and didn’t end with
the 2016 election. Their goal is broader: to sow social discord and erode public
confidence in the machinery of government.” Chairman Burr Press Release. The
window for passage and implementation of legislative reforms to counter that effort
and protect the upcoming 2020 elections “from the threat of foreign influence” (App.
64a (quoting Comms. Br. 18)) is rapidly closing.
Further delay also limits the House’s ability to fulfill its constitutional duties
more generally. These subpoenas have already been pending for one-third of the
116th Congress. “[T]he House, unlike the Senate, is not a continuing body[.]”
Eastland, 421 U.S. at 512. The time for the Committees “to consider and act upon
the material disclosed pursuant to their subpoenas . . . will expire at the end of the
116th Congress,” on January 3, 2021. App. 102a. And, although there is no
requirement that the Committees identify specific proposals to justify their

29

 subpoenas, In re Chapman, 166 U.S. 661, 670 (1897), their need for the subpoenaed
information is all the more pressing because there are already “numerous
legislative proposals” related to the Committees’ investigations, see App. 63a, 62a
n.55, 64a n.59. Congress “cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or
change.” McGrain, 273 U.S. at 175. Legislation cannot be enacted overnight; the
opportunity for the Committees to receive the information sought by the subpoenas,
evaluate its relevance, incorporate that information into a bill or bills, and usher
that legislation through the bicameral process diminishes by the day and may be
lost well before January 3, 2021. Applicants are correct that getting legislation
across the finish line is an arduous process, Stay App. 22-23, but that fact cuts
against additional delay, not in its favor.
For substantially similar reasons, “the interests of the public at large,”
Barnes, 501 U.S. at 1305, are furthered, not harmed, by an informed Congress.
2. Applicants do not articulate any valid reason why any harm they would
suffer without a stay would outweigh the harms to the House and the public if a
stay were granted. See id.
Their primary argument is that, without a stay, they may be deprived of the
opportunity for this Court’s review. Stay App. 20-24. But the President has no
right to this Court’s review of every case in which he seeks it. See, e.g., Office of
President v. Office of Indep. Counsel, 525 U.S. 996; Rubin, 525 U.S. 990; Office of
President v. Office of Indep. Counsel, 521 U.S. 1105.

30

 This Court also should reject Applicants’ argument that they are entitled to a
stay pending certiorari: it cannot be the case 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. If that were true, the House—which has
only a two-year term—would be severely constrained in its ability to conduct
oversight or to collect information relating to the Executive Branch. Cf. 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) (denying stay pending certiorari in case
concerning information about the President); Rubin v. United States, 524 U.S. 1301,
1302 (1998) (Rehnquist, C.J., in chambers) (same); Packwood, 510 U.S. 1319
(Rehnquist, C.J., in chambers).
For these reasons, the “likelihood that denying the stay will permit irreparable harm to the applicant [does] not clearly exceed the likelihood that granting it
will cause irreparable harm to others.” Barnes, 501 U.S. at 1305. Any harm Applicants will suffer would be “vastly less severe,” id., than the harm in depriving the
peoples’ representatives of information they need to secure the nation’s 2020
elections from foreign influence and otherwise exercise their constitutional
responsibilities wisely before their time for doing so expires. Accordingly, the stay
request should be denied.

31

 II.

If The Court Nevertheless Grants A Stay, It Should Expedite
Consideration Of Certiorari
If the Court grants the stay, the Committees request that the Court expedite

consideration of certiorari in this case. The House Oversight Committee will file
today an opposition to the petition for certiorari in Mazars. The Court should
condition any stay here on the filing of a certiorari petition at the earliest
practicable date, see, e.g., Int’l Refugee Assistance Project, 137 S. Ct. at 2085, or,
alternatively, could treat the stay application itself as a petition for certiorari, see,
e.g., Nken v. Mukasey, 555 U.S. 1042 (2008); Purcell v. Gonzalez, 549 U.S. 1, 2
(2006) (per curiam). Any stay of this case would cause the House serious injury, but
“expeditious treatment,” Eastland, 421 U.S. at 511 n.17, would lessen that injury to
some extent.
CONCLUSION
For the foregoing reasons, the application for a stay should be denied.
Respectfully submitted,
Lawrence S. Robbins
Roy T. Englert, Jr.
Alan D. Strasser
Jennifer S. Windom
D. Hunter Smith
Brandon L. Arnold
ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER LLP
2000 K Street NW, 4th Floor
Washington, D.C. 20006
(202) 775-4500
lrobbins@robbinsrussell.com

Douglas N. Letter
Counsel of Record
Todd B. Tatelman
Megan Barbero
Josephine Morse
Adam A. Grogg
Jonathan B. Schwartz
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
219 Cannon House Building
Washington, D.C. 20515
(202) 225-9700
douglas.letter@mail.house.gov

December 11, 2019
32