Nos. 19-715 and 19-760

In the Supreme Court of the United States
DONALD J. TRUMP, ET AL., PETITIONERS
v.
MAZARS USA, LLP, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
SOPAN JOSHI
Assistant to the Solicitor
General
MARK R. FREEMAN
SCOTT R. MCINTOSH
DENNIS FAN
GERARD J. SINZDAK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

(Additional Caption Listed on Inside Cover)

 DONALD J. TRUMP, ET AL., PETITIONERS
v.
DEUTSCHE BANK AG, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

 QUESTION PRESENTED

Whether Articles I and II of the United States Constitution allowed three committees of the House of Representatives to issue four subpoenas to third-party custodians for the personal financial records of the sitting
President of the United States.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 7
Argument:
A. Congressional committees may not subpoena the
President’s personal records unless the
information is demonstrably critical to a clearly
identified legitimate legislative purpose ..................... 10
1. Congress’s implied investigatory powers are
subject to several limitations................................ 10
2. The President’s unique status requires special
solicitude from Congress and the Judiciary ....... 13
3. Congress must satisfy a heightened showing
when it directs its implied investigatory
powers at the President ........................................ 17
B. The congressional subpoenas here do not satisfy
the constitutional requirements ................................... 25
1. Mazars .................................................................... 26
2. Deutsche Bank and Capital One.......................... 28
C. Constitutional avoidance also counsels reversal ........ 31
Conclusion ................................................................................... 35
TABLE OF AUTHORITIES

Cases:
Bellis v. United States, 417 U.S. 85 (1974).......................... 24
Bowsher v. Synar, 478 U.S. 714 (1986)................................ 19
Buckley v. Valeo, 424 U.S. 1 (1976)...................................... 18
Cheney v. United States District Court,
542 U.S. 367 (2004)............................................ 15, 16, 24, 34
Child Labor Tax Case, 259 U.S. 20 (1922) .......................... 23
Clinton v. Jones, 520 U.S. 681 (1997) .............1, 14, 15, 16, 20

(III)

 IV
Cases—Continued:

Page

Eastland v. United States Servicemen’s Fund,
421 U.S. 491 (1975)........................................................ 12, 22
Ford v. United States, 273 U.S. 593 (1927) ......................... 24
Franklin v. Massachusetts, 505 U.S. 788 (1992) .......... 15, 22
Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477
(2010) ........................................................................ 17, 19, 22
Gravel v. United States, 408 U.S. 606 (1972) ...................... 25
Ho Ah Kow v. Nunan, 12 F. Cas. 252
(C.C.D. Cal. 1879) ............................................................... 23
Hutchinson v. Proxmire, 443 U.S. 111 (1979) .................... 12
INS v. Chadha, 462 U.S. 919 (1983)................... 10, 17, 20, 33
Judicial Watch , Inc. v. United States Secret
Service, 726 F.3d 208 (D.C. Cir. 2013) .............................. 25
Kilbourn v. Thompson, 103 U.S. 168 (1881) ....................... 12
Lindsey, In re, 158 F.3d 1263 (D.C. Cir.),
cert. denied, 525 U.S. 996 (1998) ....................................... 17
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
(1819) .................................................................................... 10
McGrain v. Daugherty, 273 U.S. 135 (1927).............. passim
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867)......... 15
Morrison v. Olson, 487 U.S. 654 (1988) ............................... 23
Nixon v. Administrator of General Services,
433 U.S. 425 (1977).............................................................. 21
Nixon v. Fitzgerald, 457 U.S. 731 (1982) ................... passim
Powell v. McCormack, 395 U.S. 486 (1969)......................... 27
Public Citizen v. United States Department of
Justice, 491 U.S. 440 (1989) ............................................... 33
Quinn v. United States, 349 U.S. 155 (1955) .......... 11, 13, 26
Salazar v. Buono, 559 U.S. 700 (2010) ................................ 25

 V
Cases—Continued:

Page

Senate Select Committee on Presidential Campaign
Activities v. Nixon, 498 F.2d 725
(D.C. Cir. 1974) ................................................. 23, 24, 28, 30
Tobin v. United States, 306 F.2d 270
(D.C. Cir.), cert. denied, 371 U.S. 902 (1962) ............. 22, 33
United States v. Nixon, 418 U.S. 683 (1974)....................... 15
United States v. Rumely, 345 U.S. 41 (1953) ............. passim
Watkins v. United States, 354 U.S. 178 (1957) .......... passim
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).............................................................. 19
Constitution and statute:
U.S. Const.:
Art. I ........................................................................... 10, 13
§ 1 ............................................................................... 10
§ 2, Cl. 5 ................................................................ 10, 18
§ 3:
Cls. 5-6................................................................... 10
Cl. 6........................................................................ 18
§ 4, Cl. 2 ...................................................................... 14
§ 5:
Cl. 1.................................................................. 14, 18
Cls. 1-4................................................................... 10
§ 6, Cl. 1 ...................................................................... 16
Arrest Clause ....................................................... 16
Speech or Debate Clause .................................... 25
§ 7:
Cl. 2........................................................................ 19
Cls. 2-3................................................................... 14

 VI
Constitution and statute—Continued:

Page

Art. II ..........................................................8, 10, 13, 14, 16
§ 1 ............................................................................... 13
Cl. 1........................................................................ 22
Cl. 2........................................................................ 18
Cl. 3........................................................................ 18
Cl. 7........................................................................ 18
Cl. 8........................................................................ 18
§§ 2-3 ........................................................................... 14
Freedom of Information Act, 5 U.S.C. 552 ......................... 25
Miscellaneous:
A Sitting President’s Amenability to Indictment
and Criminal Prosecution, 24 Op. O.L.C. 222
(2000) .................................................................................... 16
165 Cong. Rec. H3481 (daily ed. May 8, 2019) .................... 29
H.R. Rep. No. 40, 116th Cong., 1st Sess. (2019) ................... 3
H.R. Res. 206, 116th Cong., 1st Sess. (2019) .................. 3, 29
H.R. Res. 507, 116th Cong., 1st Sess. (2019) .............. 4, 9, 31
Philip B. Kurland, Watergate and the Constitution
(1978) .................................................................................... 14
Letter from Laurence H. Silberman, Acting
Attorney General, to Hon. Howard W. Cannon,
Chairman, Committee on Rules and Administration
(Sept. 20, 1974), fas.org/irp/agency/doj/olc/
092074.pdf ............................................................................ 27
2 Joseph Story, Commentaries on the Constitution
of the United States (1833)................................................. 18
The Federalist (Jacob E. Cooke ed., 1961):
Alexander Hamilton:
No. 70 .................................................................... 18, 33
No. 71 .......................................................................... 17
No. 73 .......................................................................... 19

 VII
Miscellaneous—Continued:

Page

James Madison:
No. 48 .......................................................................... 18
No. 51 ........................................................ 16, 18, 20, 24

 In the Supreme Court of the United States
No. 19-715
DONALD J. TRUMP, ET AL., PETITIONERS
v.
MAZARS USA, LLP, ET AL.
No. 19-760
DONALD J. TRUMP, ET AL., PETITIONERS
v.
DEUTSCHE BANK AG, ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE DISTRICT OF COLUMBIA AND SECOND CIRCUITS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case involves subpoenas issued by congressional committees to third-party custodians for the personal records of the sitting President of the United
States. The United States has a substantial interest in
safeguarding the prerogatives of the Office of the President. The United States has participated as amicus curiae in other cases that have presented related issues
concerning the President’s amenability to suit or compulsory process, including in this Court, e.g., Clinton v.
(1)

 2
Jones, 520 U.S. 681 (1997); Nixon v. Fitzgerald, 457 U.S.
731 (1982), and in these cases in the courts of appeals.
STATEMENT

1. a. On April 15, 2019, the House Committee on
Oversight and Reform issued a subpoena to respondent
Mazars USA, LLP, the personal accounting firm of
President Donald J. Trump, seeking eight years’ worth
of financial and accounting information about the President and his private business entities. 19-715 Pet. App.
2a-3a; see id. at 227a-240a (copy of subpoena). In an
earlier letter to Mazars, the committee chair had written that the committee was investigating allegations
that the President “changed the estimated value of his
assets and liabilities on financial statements prepared
by your company.” 19-5142 C.A. App. 91.
In an April 12, 2019 memorandum to the committee,
the chair gave “notice of [his] intent to issue a subpoena
to Mazars,” 19-5142 C.A. App. 104, and provided four
reasons in support:
[1] to investigate whether the President may have
engaged in illegal conduct before and during his tenure in office, [2] to determine whether he has undisclosed conflicts of interest that may impair his ability
to make impartial policy decisions, [3] to assess
whether he is complying with the Emoluments
Clauses of the Constitution, and [4] to review
whether he has accurately reported his finances to
the Office of Government Ethics and other federal
entities.
Id. at 107. The chair asserted that “[t]he Committee’s
interest in these matters informs its review of multiple
laws and legislative proposals under [its] jurisdiction,”
but did not identify those laws or proposals. Ibid.

 3
b. On April 11, 2019, the House Committee on Financial Services and the Permanent Select Committee
on Intelligence issued two identical subpoenas to respondent Deutsche Bank AG. See J.A. 226a. The Financial Services Committee also issued a subpoena to
respondent Capital One Financial Corporation. See
ibid. All three subpoenas seek detailed and extensive
financial information about the President, his private
business entities, and members of his family. See J.A.
264a-266a. “The time frame for which most of the documents are sought is July 19, 2016, to the present for
the Capital One subpoena and January 1, 2010, to the
present for the Deutsche Bank subpoenas, but there is
no time limit for two categories of documents sought by
all three subpoenas,” including “documents related to
account openings, the names of those with interests in
identified accounts, and financial ties between the
named individuals and entities and any foreign individual, entity, or government.” J.A. 266a; see J.A. 128a-151a,
152a-184a (copies of subpoenas).
The Financial Services Committee stated that it issued the subpoenas as part of its efforts to investigate
“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.’ ”
19A640 Resp. Br. 5 (quoting H.R. Rep. No. 40, 116th
Cong., 1st Sess. 84-85 (2019)). According to that committee, those efforts were triggered by House Resolution 206, which states that the House “supports efforts
to close loopholes that allow corruption, terrorism, and
money laundering to infiltrate our country’s financial
system.” H.R. Res. 206, 116th Cong., 1st Sess. 5 (2019).

 4
The Intelligence Committee Chair later issued a press
release stating that the committee was investigating ties
and possible “coordination between the Russian government” and the President and his campaign. See 19A640
Resp. Br. 9 (citation omitted). The chair stated that the
“subpoena is ‘vital to fully identify the scope of th[e]
threat’ of foreign financial leverage.” Id. at 10 (citation
omitted).
c. On July 24, 2019, the House passed a resolution
stating that it “ratifies and affirms all current and future investigations” and “subpoenas previously issued
or to be issued in the future, by any standing or permanent select committee of the House,” related to “the
President in his personal or official capacity,” “his immediate family, business entities, or organizations,” and
other individuals (including any “current or former” governmental employee) and institutions (including “the
White House”) related to the President. H.R. Res. 507,
116th Cong., 1st Sess. 2-3 (2019).
2. Petitioners—the President in his personal capacity and other individuals and entities whose financial information the subpoenas sought—filed these suits to
prevent the third-party custodians from complying with
the subpoenas, including (as relevant here) on the ground
that the subpoenas violate the constitutional separation
of powers. See J.A. 30a-49a (Mazars complaint); J.A.
109a-127a (Deutsche Bank complaint).
Both district courts rejected petitioners’ claims on
the merits. See 19-715 Pet. App. 158a-212a; J.A. 187a222a. The court in Deutsche Bank denied petitioners’
motion for a preliminary injunction, J.A. 185a-186a, and
the court in Mazars treated the parties’ briefs on a

 5
preliminary-injunction motion as cross-motions for
summary judgment, and entered judgment in favor of
respondents, 19-715 Pet. App. 178a, 212a.
3. The courts of appeals affirmed. 19-715 Pet. App.
1a-157a; J.A. 223a-375a.
a. As relevant here, the court of appeals in Mazars
recognized that a congressional committee may issue a
legislative subpoena only if it falls within the House’s
delegation of investigative power to the committee. See
19-715 Pet. App. 20a. The court further recognized that
the committee’s investigation must concern a subject
matter on which a “constitutional statute may be enacted”; seek only information that is “ ‘calculated to’
‘materially aid’ the[] investigation[]”; and “ ‘neither
usurp the other branches’ constitutionally designated
functions nor violate individuals’ constitutionally protected rights.’ ” Id. at 21a-22a (brackets and citations
omitted). The court concluded that the subpoena satisfied those conditions, principally because the committee
chair’s April 12 memorandum expressed an interest in
whether the President had accurately reported his finances, and the House was considering legislation regarding financial disclosures. See id. at 30a-31a.
The court “reject[ed] the suggestion” that the lawenforcement rationale set forth in that memorandum
“spoils the Committee’s otherwise valid legislative inquiry.” Id. at 32a.
Judge Rao dissented. 19-715 Pet. App. 77a-157a.
She stated that “Congress cannot undertake a legislative investigation of an impeachable official if the ‘gravamen’ of the investigation rests on ‘suspicions of criminality.’ ” Id. at 85a (citation omitted). Examining the
four purposes set forth in the April 12 memorandum,
Judge Rao found that “each of [them] target[s] the

 6
President’s alleged wrongdoing and potential violations
of statutes and the Constitution.” Id. at 126a.
The court of appeals denied rehearing en banc.
19-715 Pet. App. 213a-221a. Judges Henderson, Katsas,
and Rao would have granted rehearing. Id. at 214a n.*.
Judge Katsas explained that congressional subpoenas
seeking the President’s personal records raise “exceptionally important questions regarding the separation
of powers,” id. at 215a, and pose a “far greater” “threat
to presidential autonomy and independence” than subpoenas issued in conjunction with judicial proceedings,
which are overseen by “neutral judges applying” governing rules, id. at 216a-217a.
b. As relevant here, the court of appeals in Deutsche
Bank recognized that legislative subpoenas issued by
congressional committees may not “intru[de] into the
authority of the other branches”; pursue “ ‘law enforcement’ ” goals; “ ‘extend to an area in which Congress is
forbidden to legislate’ ”; or “ ‘inquire into private affairs
unrelated to a valid legislative purpose.’ ” J.A. 267a-268a
(citations omitted). Relying on House Resolution 206,
the court summarized the interest of the committees in
issuing their respective subpoenas as being the “enforcement of anti-money-laundering/counter-financing of
terrorism laws, terrorist financing, the movement of illicit funds through the global financial system including
the real estate market, the scope of the Russian government’s operations to influence the U.S. political process,
and whether [the President] was vulnerable to foreign
exploitation.” Id. at 284a. The court concluded that
those interests were “related to a legislative purpose.”
Ibid. Although the court recognized that the subpoenas
were overly broad in both time and scope, see id. at

 7
300a-305a, it found that most of the requested “information, including documents dating back to when accounts were opened, is reasonably related to an investigation about money laundering,” id. at 297a.
Judge Livingston dissented in relevant part. J.A.
323a-375a. She found no “clear reason why a congressional investigation aimed generally at closing regulatory loopholes in the banking system need focus on over
a decade of financial information regarding this President, his family, and his business affairs.” J.A. 347a.
And she did not find “the proffered rationale” of the
committees “consistent with the granular detail that
these subpoenas seek.” Ibid. Judge Livingston would
have remanded for a fuller development of the record.
See J.A. 368a-371a.
SUMMARY OF ARGUMENT

A. Congress’s implicit power to investigate generally is “justified solely as an adjunct to the legislative
process.” Watkins v. United States, 354 U.S. 178, 197
(1957). A legislative subpoena must therefore further a
legitimate legislative purpose; it cannot be issued for
law enforcement or simply to expose wrongdoing. And
when a congressional committee issues a subpoena, it
must be authorized by a delegation from the full chamber that identifies the legislative purpose with sufficient
particularity. Moreover, any information sought must
be pertinent to the stated legislative purpose.
Those limitations should be even stricter when a
committee aims its investigatory power at the President. “The President occupies a unique position in the
constitutional scheme.” Nixon v. Fitzgerald, 457 U.S.
731, 749 (1982). The Constitution vests the entirety of
the Executive Power in the President, and it entrusts
him with vast and vital public responsibilities. This

 8
Court has long understood that to enable the President
to discharge those critical constitutional duties, Article
II provides an immunity from any process that would
risk impairing the independence of his office or interfering with the performance of its functions. That risk
is particularly palpable when the President’s political
adversaries control one or both chambers of Congress.
For that reason, the Framers deliberately sought to insulate the President from congressional interference in
particular.
A legislative subpoena must therefore satisfy heightened requirements when it seeks information from the
President. At the threshold, the full chamber should
unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set
forth with specificity. Courts should not presume that
the purpose is legitimate, but instead should scrutinize
it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legitimate
legislative purpose. A congressional committee cannot
evade those heightened requirements merely by directing the subpoenas to third-party custodians, for such
agents generally assume the rights and privileges of
their principal, as this Court has recognized in analogous contexts.
B. The subpoenas here do not satisfy those heightened standards. The four reasons offered in support of
the Mazars subpoena betray an impermissible lawenforcement objective, and the boilerplate statement
that the subpoena furthers “multiple laws and legislative proposals” is far too vague to enable, much less
withstand, meaningful scrutiny of its legitimacy. Indeed, the stated reasons related to conflicts of interest

 9
and emoluments bear no evident connection to valid legislation, given Congress’s limited ability to regulate the
President. And in any event, the committee has not explained why the highly detailed information the subpoena seeks is demonstrably critical to any of its stated
legislative purposes.
Likewise, the Deutsche Bank and Capital One subpoenas seek information that is not demonstrably critical to any legitimate legislative purpose. One committee’s investigation was into closing loopholes in moneylaundering laws; the other’s into foreign interference in
elections. That two committees issued carbon-copy subpoenas for markedly divergent purposes strongly suggests that neither is the true purpose. Moreover, the
resolution on which the committees rely does not even
mention foreign interference in elections, and there is
no reason why investigating potential changes to moneylaundering laws should focus on the President in particular.
C. Alternatively, this Court should invalidate the
subpoenas on constitutional-avoidance grounds. The
authorizing resolution’s blank check for all “current and
future” subpoenas by any committee issued “directly or
indirectly” to the President for any reason whatsoever,
H.R. Res. 507, at 2-3, makes plain that the House has
not “demonstrated its full awareness of what is at
stake,” United States v. Rumely, 345 U.S. 41, 46 (1953).
Moreover, the full House never clearly adopted or endorsed the various reasons given by the committees for
issuing the subpoenas. As in Rumely, this Court could
invalidate the subpoenas on those threshold grounds
and thereby avoid the need to opine on the merits of this
interbranch dispute.

 10
ARGUMENT

These cases involve the first attempts by congressional committees to demand the personal records of a
sitting President of the United States. That use of their
limited and implied investigatory powers poses a serious risk of harassing the President and distracting him
from his constitutional duties. Article II and the separation of powers protect the Office of the President
from such interference. Congressional committees that
subpoena the President’s information must therefore
make a heightened showing, both of a legitimate legislative purpose for the subpoenas and of the need for the
information sought. Because the committees here did
not make those showings, the subpoenas violate the
Constitution.
A. Congressional Committees May Not Subpoena The
President’s Personal Records Unless The Information Is
Demonstrably Critical To A Clearly Identified Legitimate
Legislative Purpose
1. Congress’s implied investigatory powers are subject
to several limitations

“This government is acknowledged by all to be one
of enumerated powers.” McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 405 (1819). The enumerated “legislative
Powers” granted by Article I to Congress do not include
any express authority to conduct investigations or issue
compulsory process. U.S. Const. Art. I, § 1. The enumerated powers that a single House of Congress may
exercise on its own are even more circumscribed, generally limited to governing its own Members and internal proceedings. Art. I, § 2, Cl. 5, § 3, Cls. 5-6, and § 5,
Cls. 1-4; see INS v. Chadha, 462 U.S. 919, 955 (1983).
Nevertheless, although “neither house is invested with

 11
‘general’ power to inquire into private affairs and compel disclosures,” this Court has held that each has a
“limited power of inquiry” as part of its “auxiliary powers as are necessary and appropriate to make the express powers effective.”
McGrain v. Daugherty,
273 U.S. 135, 173-174 (1927); see Watkins v. United
States, 354 U.S. 178, 197 (1957) (observing that congressional investigations are “justified solely as an adjunct
to the legislative process”). The Court has explained
that the implied “power to secure needed information”
is “incidental to the legislative function,” and “was so
regarded in the British Parliament and in the Colonial
legislatures before the American Revolution.” McGrain,
273 U.S. at 161; see id. at 161-167 (describing the history of legislative subpoenas).
That implied power is, however, “subject to recognized limitations.” Quinn v. United States, 349 U.S.
155, 161 (1955). Most important, a congressional subpoena may be issued only “in furtherance of [] a legitimate task of the Congress.” Watkins, 354 U.S. at 187.
Accordingly, a congressional subpoena may not be issued for the purpose of “law enforcement,” as “those
powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn, 349 U.S. at 161.
Legislation is of course a legitimate congressional
task. But a congressional subpoena may not extend to
topics “in respect to which no valid legislation could be
enacted.” Watkins, 354 U.S. at 194 (citation omitted);
see Quinn, 349 U.S. at 161 (congressional inquiry into
“an area in which Congress is forbidden to legislate” is
invalid). Similarly, although Congress may “inquire
into and publicize corruption, maladministration or
inefficiency in agencies of the Government,” Watkins,
354 U.S. at 200 n.33, that informing function must be

 12
tethered to a valid legislative function to support a legislative subpoena. See id. at 200; Hutchinson v.
Proxmire, 443 U.S. 111, 133 (1979) (explaining that “the
duty of Members to tell the public about their activities
* * * is not a part of the legislative function”); see also
Kilbourn v. Thompson, 103 U.S. 168, 195 (1881) (rejecting subpoena that was “simply a fruitless investigation
into the personal affairs of individuals”). There is, in
short, “no congressional power to expose for the sake of
exposure.” Watkins, 354 U.S. at 200.
Because investigations often are conducted by congressional committees “serving as the representatives
of the parent assembly,” Watkins, 354 U.S. at 200, a
committee’s “right to exact testimony and to call for the
production of documents must be found in th[e] language” of “the controlling charter of the committee’s
powers”—generally a resolution passed by the full
chamber, United States v. Rumely, 345 U.S. 41, 44 (1953);
see Watkins, 354 U.S. at 201, 206. Critically, an authorizing resolution must “spell out * * * with sufficient
particularity” the legitimate legislative purpose behind
any investigative subpoena. Watkins, 354 U.S. at 201.
Although the subjective “motives alleged to have
prompted” a congressional subpoena are not relevant,
Eastland v. United States Servicemen’s Fund, 421 U.S.
491, 508-509 (1975) (emphasis added), the objective purpose is, McGrain, 273 U.S. at 178 (inquiring whether
“the real object” of a legislative subpoena was “legitimate”).
Even when a committee issues a subpoena to further
a properly identified and legitimate legislative purpose,
the information sought must be “pertinent” to that purpose. McGrain, 273 U.S. at 176. Congressional subpoe-

 13
nas are subject to “a jurisdictional concept of pertinency drawn from the nature of a congressional committee’s source of authority.” Watkins, 354 U.S. at 206.
For that limit “[t]o be meaningful,” Congress must provide “the connective reasoning whereby the precise
questions asked relate to” the legitimate legislative purpose. Id. at 215. Just as congressional subpoenas may
not “be used to inquire into private affairs unrelated to
a valid legislative purpose,” Quinn, 349 U.S. at 161, they
may not “radiate outward infinitely to any topic thought
to be related in some way” to that purpose, Watkins,
354 U.S. at 204. Of particular concern is when congressional “investigators turn their attention to the past to
collect minutiae on remote topics.” Ibid. Those circumstances could indicate that the information sought in the
subpoena does not “relate to” a legitimate legislative
purpose, id. at 215, and may even suggest the impermissible object of exposing illegality for its own sake.
2. The President’s unique status requires special
solicitude from Congress and the Judiciary

Article I’s limits on the reach of Congress’s implied
investigatory powers are supplemented by Article II’s
protections against incursions that threaten the President’s independence and ability to carry out his constitutional duties.
a. “The President occupies a unique position in the
constitutional scheme.” Nixon v. Fitzgerald, 457 U.S.
731, 749 (1982). The Constitution vests the legislative
power in a plural Congress and the judicial power in a
plural Judiciary, but the entirety of the executive power
in a single President. U.S. Const. Art. II, § 1. The Constitution entrusts the President with vast and vital public responsibilities, including taking care that the laws
are faithfully executed; commanding the Armed Forces;

 14
nominating, appointing, and removing officers; making
treaties; recommending, signing, and vetoing bills;
sending and receiving ambassadors; and granting pardons and reprieves. Art. I, § 7, Cls. 2-3 and Art. II,
§§ 2-3. The Constitution vests the President with unremitting official responsibilities; by contrast, Congress is
required to assemble only “once in every Year,” Art. I,
§ 4, Cl. 2, may “adjourn from day to day,” Art. I, § 5, Cl.
1, and retains “a Quorum to do Business” even in the
absence of up to half its membership, ibid. And the
President must speak and act not just for a single district or State, but for all the people of the United States.
The President is, in short, the “sole indispensable man
in government.” Philip B. Kurland, Watergate and the
Constitution 135 (1978).
The Founders understood Article II to protect the
“independent functioning” of the President’s unique office, “free from risk of control, interference, or intimidation by other branches.” Fitzgerald, 457 U.S. at 760761 (Burger, C.J., concurring). For example, John Adams, Thomas Jefferson, and Joseph Story all maintained that the President was immune from any judicial
process whatsoever. See id. at 750 n.31 (majority opinion). Although this Court has not gone that far, it has
accepted “the essence of the constitutional principle,”
Clinton v. Jones, 520 U.S. 681, 714 (1997) (Breyer, J.,
concurring in the judgment), and has relied on those
views in concluding that the President enjoys a constitutional immunity from actions of coordinate Branches
that would threaten to undermine his independence or
interfere with his functions, Fitzgerald, 457 U.S. at 750
n.31. The Court has described that immunity as “a func-

 15
tionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Id. at 749.
For example, the Court has observed that “in no case
would a court be required to proceed against the president as against an ordinary individual.” Cheney v.
United States District Court, 542 U.S. 367, 382 (2004)
(brackets, citation, and ellipsis omitted). It has held
that a court may not enjoin the President in “the performance of his official duties.” Mississippi v. Johnson,
71 U.S. (4 Wall.) 475, 501 (1867); see Franklin v. Massachusetts, 505 U.S. 788, 800-801 (1992) (refusing to infer that an ambiguous or silent statute regulates the
President). It also has recognized the President’s “absolute immunity from damages liability predicated on
his official acts.” Fitzgerald, 457 U.S. at 749. It has
recognized a qualified presidential privilege protecting
the confidentiality of presidential communications,
holding that a sitting President may be required to respond to a federal criminal trial subpoena for such communications only where there is a “demonstrated, specific need” for the requested records. United States v.
Nixon, 418 U.S. 683, 713 (1974). And it has recognized
that although a sitting President is not absolutely immune from a civil suit in federal court for purely private
conduct, “[t]he high respect that is owed to the office of
the Chief Executive * * * should inform the conduct of
the entire proceeding, including the timing and scope
of discovery.” Clinton, 520 U.S. at 707; see Cheney,
542 U.S. at 385-386 (similar). Those immunities do
“not place the President ‘above the law.’ ” Fitzgerald,
457 U.S. at 758. Rather, the law itself accounts for “the
paramount necessity of protecting the Executive Branch”

 16
from acts “that might distract it from the energetic performance of its constitutional duties.” Cheney, 542 U.S.
at 382.
b. The President enjoys those immunities even with
respect to his purely personal conduct and papers. As
the Framers understood, “[t]he interest of the man” is
often “connected with the constitutional rights of the
place.” The Federalist No. 51, at 349 (James Madison)
(Jacob E. Cooke ed., 1961). Acts taken against an individual as a private person can impair that individual’s
exercise of a public office. For example, the Arrest
Clause protects legislators from civil arrests for private
conduct while attending and traveling to and from sessions of Congress. U.S. Const. Art. I, § 6, Cl. 1. Article
II similarly protects a sitting President from arrest, indictment, and criminal prosecution for private conduct.
A Sitting President’s Amenability to Indictment and
Criminal Prosecution, 24 Op. O.L.C. 222, 247-248 (2000).
And this Court has recognized that “the Executive’s
‘constitutional responsibilities and status are factors
counseling judicial deference and restraint’ in the conduct of litigation against it,” Cheney, 542 U.S. at 385
(brackets and citation omitted), including in civil suits
against the President in his personal capacity, Clinton,
520 U.S. at 707.
Demands for a President’s personal records similarly risk interfering with the President’s official functions. A subpoena for personal records can be deployed
to harass a President in response to his official policies,
or have the effect of subjecting a President to unwarranted burdens, diverting his time, energy, and attention from his public duties. That is especially true
“[b]ecause the Presidency is tied so tightly to the persona of its occupant,” making “the line between official

 17
and personal * * * both elusive and difficult to discern.”
In re Lindsey, 158 F.3d 1263, 1286 (D.C. Cir.) (per curiam) (Tatel, J., concurring in part and dissenting in
part), cert. denied, 525 U.S. 996 (1998).
3. Congress must satisfy a heightened showing when
it directs its implied investigatory powers at the
President

In contrast to legislative demands for information
from private persons or subordinate governmental officials, no history or tradition supports legislative subpoenas aimed at the President’s personal records. Cf.
McGrain, 273 U.S. at 161-167. Even assuming Congress’s implied investigatory power extends to that domain, but cf. Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477, 505 (2010)
(observing that “the lack of historical precedent” for an
action intruding on the President’s prerogatives is a
“telling indication” of unconstitutionality) (citation
omitted), the constitutional concerns described above
make it all the more important to enforce strict substantive limits on that power.
a. The Founders predicted that Members of Congress would “often appear disposed to exert an imperious controul over the other departments; and as they
commonly have the people on their side, they always act
with such momentum as to make it very difficult for the
other members of the government to maintain the balance of the Constitution.” The Federalist No. 71, at 484
(Alexander Hamilton). Indeed, the Framers were convinced “that the powers conferred on Congress were the
powers to be most carefully circumscribed,” Chadha,
462 U.S. at 947, and their writings “are replete with expressions of fear that the Legislative Branch * * * will
aggrandize itself at the expense of the other two

 18
branches,” Buckley v. Valeo, 424 U.S. 1, 129 (1976) (per
curiam). See The Federalist No. 48, at 333 (James Madison) (“The legislative department is every where extending the sphere of its activity, and drawing all power
into its impetuous vortex.”); 2 Joseph Story, Commentaries on the Constitution of the United States § 532, at
15 (1833).
The Framers thus took special effort—beyond the
structural separation of powers—to “fortif [y]” the executive, and to constrain the legislature, relative to each
other. The Federalist No. 51, at 350. For example, they
divided the legislature into two Houses with “different
modes of election, and different principles of action,”
ibid.; made each House a plural body to “obstruct”
“promptitude of decision” and to “promote deliberation
and circumspection,” The Federalist No. 70, at 475 (Alexander Hamilton); imposed quorum requirements before
either chamber could act, U.S. Const. Art. I, § 5, Cl. 1;
and required bicameralism to enact legislation, Art. I, § 7,
Cl. 2.
Conversely, the Framers created a single President
to ensure a “vigorous executive,” not a “feeble” one.
The Federalist No. 70, at 471. They also ensured the
President’s independence from Congress by, for example, forbidding Members of Congress from serving as
presidential Electors, guaranteeing the President a salary that Congress could neither increase nor diminish
during his term, specifying the presidential oath in the
Constitution rather than allowing Congress to enact it
by law, and prescribing procedures and standards for
impeachment and removal. U.S. Const. Art. I, § 2, Cl. 5
and § 3, Cl. 6, and Art. II, § 1, Cls. 2, 3, 7, and 8. They
also granted the President a structural protection from
congressional encroachments they could not foresee:

 19
the veto power, Art. I, § 7, Cl. 2, which “serves as a
shield to the executive” and provides “a constitutional
and effectual power of self defence,” The Federalist No.
73, at 495 (Alexander Hamilton).
Those and other aspects of presidential independence and autonomy are threatened when Congress uses
its implied investigative powers to make onerous demands of the President. Such demands pose the threat
that the Legislative Branch may “aggrandize itself at the
expense” of the Executive by usurping law-enforcement
functions, Bowsher v. Synar, 478 U.S. 714, 727 (1986)
(citation omitted), or may “impair [the Executive] in the
performance of its constitutional duties” through intrusive or burdensome inquiries, Free Enterprise Fund,
561 U.S. at 500 (citation omitted). See Watkins, 354
U.S. at 187, 200 (legislators might improperly use investigative powers for “personal aggrandizement,” to “ ‘punish’ those investigated,” or “to expose for the sake of exposure”).
Those are not idle concerns. The President faces a
unique risk of harassment in response to his official policies or actions. “In drama, magnitude and finality his
decisions so far overshadow any others that almost
alone he fills the public eye and ear.” Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson,
J., concurring). Because the President “must make the
most sensitive and far-reaching decisions” on “matters
likely to ‘arouse the most intense feelings,’ ” he is “an
easily identifiable target” for harassment. Fitzgerald,
457 U.S. at 752-753 (citation omitted).
Likewise, the President “occupies a unique office
with powers and responsibilities so vast and important
that the public interest demands that he devote his un-

 20
divided time and attention to his public duties.” Clinton, 520 U.S. at 697. “Because of the singular importance of the President’s duties, diversion of his energies * * * would raise unique risks to the effective
functioning of government.” Fitzgerald, 457 U.S. at
751. It takes little imagination to foresee that subpoenas seeking sensitive personal information would divert
the President’s attention from his constitutional duties.
The risks of such harassment and distraction are
particularly acute when Congress does the investigating. The President may be a tantalizing target to the
“opposite and rival interests” of Congress, The Federalist No. 51, at 349, when his political adversaries control one or both chambers. The risk that they will conduct an investigation “solely for the personal aggrandizement of the investigators or to ‘punish’ ” the President is especially palpable in those circumstances. Watkins, 354 U.S. at 187. Investigations in judicial proceedings at least are confined to discrete controversies and
subject to various protective measures imposed by neutral rules and judges. Congressional investigators, by
contrast, may issue successive subpoenas in waves,
making far-reaching demands for sensitive personal
information—college transcripts, job applications,
health records, birth certificates, private emails, cellphone logs, and the like—that harry the President and
distract his attention.
Those risks are greater still when a single House of
Congress or even, as is typical, a single committee
wields the investigative power. Cf. Chadha, 462 U.S. at
951, 958 n.23 (observing that “the bicameral requirement” serves “essential constitutional functions,” including “opportunity for deliberation and debate”).

 21
Consider the contrast with the inspection of presidential records authorized in Nixon v. Administrator of
General Services, 433 U.S. 425 (1977), where the Court
emphasized that the President was no longer in office;
the materials would remain in the Executive Branch; an
Executive Branch official would conduct the inspection;
an Act of Congress, signed into law by the President,
authorized the inspection; and the statute contained
several safeguards against improper disclosure of personal materials. See id. at 439-455. An investigation by
a single House committee against the sitting President
to obtain sensitive personal information with no enforceable limitations on disclosure lacks all of those protective features, and thus amplifies the risks of harassment and distraction.
b. Enforcing the limits on Congress’s implied investigatory powers is thus all the more important when
congressional investigators target the President. At
the threshold, it is particularly important for the chamber issuing the subpoena to have “demonstrated its full
awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits.” Rumely, 345 U.S. at
46. That chamber also should satisfy heightened standards in this context.
First, the chamber issuing a legislative subpoena
should offer a clear and specific statement setting forth
with particularity the legislative purpose behind any investigation of the President and his information. A
heightened standard of clarity, specificity, and particularity is appropriate in light of Congress’s limited ability to regulate the President. The President is not like
private citizens or federal agencies, which are subject to
myriad forms of regulation within Congress’s legislative sphere. See, e.g., McGrain, 273 U.S. at 178;

 22
Eastland, 421 U.S. at 506. Rather, the Constitution establishes the President’s office and vests “[t]he executive Power” directly in him, U.S. Const. Art. II, § 1, Cl.
1, and Congress may not use even its express legislative
powers—let alone its implied investigative powers—to
defeat or curtail the President’s constitutional prerogatives. Any legislation regulating the President thus
would bear the significant risk that it would unconstitutionally “impair [the President] in the performance of
[his] constitutional duties.” Free Enterprise Fund,
561 U.S. at 500 (citation omitted); cf. Franklin, 505 U.S.
at 800-801 (requiring an “express statement” “before
assuming [Congress] intended” to regulate the President, “[o]ut of respect for the separation of powers and
the unique constitutional position of the President”).
Accordingly, it would be inappropriate for courts—or
Congress’s lawyers in litigation—to hypothesize potential legitimate legislative purposes in an effort to supply
a “retroactive rationalization.” Watkins, 354 U.S. at
204; see Tobin v. United States, 306 F.2d 270, 274 n.7
(D.C. Cir.), cert. denied, 371 U.S. 902 (1962).
Second, the stated legislative purpose should be subject to heightened scrutiny of its legitimacy. As explained above, the President is a particularly attractive
target for his political foes, and congressional investigators may face irresistible temptation to improperly
“turn their attention to the past to collect minutiae on
remote topics,” Watkins, 354 U.S. at 204, on the pretext
of investigating hypothetical future legislation. Although courts should not speculate about legislators’
subjective motives, they must ascertain the subpoena’s
“real object” in light of objective circumstances,
McGrain, 273 U.S. at 178, without “shut[ting] [thei]r
minds” to what “[a]ll others can see and understand,”

 23
Child Labor Tax Case, 259 U.S. 20, 37 (1922) (Taft,
C.J.); see Rumely, 345 U.S. at 43-44 (invoking that principle in the legislative-subpoena context). As Justice
Field, riding circuit, observed in evaluating an analogous claim of legislative pretext, “[w]hen we take our
seats on the bench we are not struck with blindness, and
forbidden to know as judges what we see as men.” Ho
Ah Kow v. Nunan, 12 F. Cas. 252, 255 (C.C.D. Cal.
1879).
That sort of searching scrutiny is all the more critical
when a legislative subpoena targets the President.
When a House of Congress invokes its implied investigatory powers with respect to governmental agencies or
private citizens, courts often rely on “the particular
subject-matter” of a congressional inquiry to “presum[e]”
that the “real object” of the inquiry is valid legislation.
McGrain, 273 U.S. at 178. But that course is inappropriate when congressional investigators take aim at the
President, given Congress’s limited power to regulate
the President and his attractiveness as a target of harassment. If anything, those circumstances would support the opposite presumption. At a minimum, however, there should be no presumption either way. Cf.
Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J.,
dissenting) (observing that when the “political branches
are * * * in disagreement, neither can be presumed
correct”).
Third, any information sought in a congressional
subpoena directed at the President’s information must
be not just reasonably related, but “demonstrably critical,” to the asserted legislative purpose. Senate Select
Committee on Presidential Campaign Activities v.
Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc).

 24
That heightened standard, which the D.C. Circuit applied to a legislative subpoena seeking information protected by executive privilege, see ibid., is appropriate
because the President’s personal information, like privileged information, should be subject to congressional
process only as a last resort. At a minimum, therefore,
congressional investigators should exhaust other potential sources before demanding the President’s personal
information. Cf. Cheney, 542 U.S. at 389-390. Even
when a committee demands information from private
parties, each “particular inquiry [must be] justified by
a specific legislative need.” Watkins, 354 U.S. at 205.
When a congressional inquiry reaches the President,
the risk of its having “radiate[d] outward infinitely to
any topic thought to be related in some way” to a legislative need is all the more likely. Id. at 204. The President’s “provision for defence” must “be made commensurate to the danger of attack.” The Federalist No. 51,
at 349. A heightened standard of pertinence is thus
imperative.
c. Congressional investigators cannot avoid those
heightened requirements simply by directing subpoenas to the President’s agents, rather than to the President himself. “The general rule of the law is, that what
one does through another’s agency is to be regarded as
done by himself.” Ford v. United States, 273 U.S. 593,
623 (1927) (citation omitted). A person who holds records “in a representative capacity as custodian” thus
usually “ ‘assume[s] the rights, duties and privileges’ ”
of his principal with respect to those records. Bellis v.
United States, 417 U.S. 85, 89-90 (1974) (citation omitted). Indeed, this Court has held that “a Member [of
Congress] and his aide are to be ‘treated as one’ ” for
purposes of determining whether a grand jury subpoena

 25
directed to a congressional aide violates the Speech or
Debate Clause. Gravel v. United States, 408 U.S. 606, 616
(1972) (citation omitted). So too, the D.C. Circuit has
explained that interpreting the Freedom of Information
Act, 5 U.S.C. 552, to cover requests for records of visitors
to the White House would raise “serious separation-ofpowers concerns,” irrespective of whether the requester
seeks the records from the President himself or attempts
an “end run[]” by directing the request to the federal
agency that is the custodian of the records. Judicial
Watch, Inc. v. United States Secret Service, 726 F.3d
208, 216, 225 (2013).
The same reasoning applies here. The risks that
subpoenas could harass the President and divert his attention from his official duties are just as real when the
subpoenas are directed to the President’s agents as
when they are directed to the President himself. That
is especially so when, as here, the President necessarily
must rely on expert third parties to oversee, manage,
and report on his financial holdings. Indeed, even if he
were the personal recipient of the subpoenas, he would
not personally compile the requested documents; instead, he would rely on third-party agents like the ones
here. As a practical matter, therefore, the subpoenas
are indistinguishable from ones directed to the President, and should be treated as such for separation-ofpowers purposes. “The Constitution deals with substance, not shadows.” Salazar v. Buono, 559 U.S. 700,
723 (2010) (Roberts, C.J., concurring) (citation omitted).
B. The Congressional Subpoenas Here Do Not Satisfy The
Constitutional Requirements

The four subpoenas here do not satisfy the standards
set forth above, because neither the House nor the com-

 26
mittees clearly identified a specific legitimate legislative purpose behind each subpoena or clearly explained
how the information sought in each subpoena was demonstrably critical to those respective purposes.
1. Mazars

The Oversight Committee Chair’s April 12, 2019
memorandum set forth four putative legislative purposes behind the Mazars subpoena. 19-5142 C.A. App.
104-107. None is adequate. Most important, all of them
betray a law-enforcement purpose, which is flatly impermissible. Quinn, 349 U.S. at 161. Indeed, the very
first reason is “to investigate whether the President
may have engaged in illegal conduct before and during
his tenure in office.” 19-5142 C.A. App. 107. The other
reasons likewise demonstrate that the subpoena’s real
object was law enforcement, not legislation: “to determine whether [the President] has undisclosed conflicts
of interest that may impair his ability to make impartial
policy decisions”; “to assess whether [the President] is
complying with the Emoluments Clauses of the Constitution”; and “to review whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities.” Ibid. The
memorandum also confirms that the committee’s investigation arose out of allegations that the President
fraudulently “altered the estimated value of his assets
and liabilities on financial statements” long before he
was a Presidential candidate. Id. at 104. Those circumstances provide “strong reason to doubt,” Watkins,
354 U.S. at 213, that the subpoena’s “real object” was
legislation, McGrain, 273 U.S. at 178.
The memorandum’s conclusory statement that “[t]he
Committee’s interest in these matters informs its review of multiple laws and legislative proposals,” 19-5142

 27
C.A. App. 107, is insufficient to satisfy the requirement
of a clearly stated and particular legitimate legislative
purpose. An “express avowal” of a precise legislative
purpose may not always be required, McGrain, 273 U.S.
at 178; but when a subpoena seeks such detailed information about the President’s past conduct, a boilerplate
reference to “multiple laws and legislative proposals” is
far too vague to enable any assessment of whether the
subpoena is sufficiently “related to, and in furtherance
of, a legitimate task of the Congress,” Watkins, 354 U.S.
at 187.
Even apart from the obvious law-enforcement objectives, none of the stated reasons for the subpoena is sufficiently related to legitimate legislation. The declared
interest in the President’s potential “conflicts of interest,” 19-5142 C.A. App. 107, bears no evident connection
to any legitimate legislation; after all, Congress cannot
impose qualifications on the Presidency beyond those
set forth in the Constitution, so it could not legislate to
disable persons with conflicts of interest from serving
as President. See Letter from Laurence H. Silberman,
Acting Attorney General, to Hon. Howard W. Cannon,
Chairman, Committee on Rules and Administration
(Sept. 20, 1974); cf. Powell v. McCormack, 395 U.S. 486,
522 (1969). Likewise for the stated interest in the President’s “compl[iance] with the Emoluments Clauses of
the Constitution.” 19-5142 C.A. App. 107. Although
Congress may consent to otherwise-prohibited foreign
emoluments, the memorandum does not suggest that
the committee is investigating the President with a view
to that goal. To the contrary, the committee’s stated
interest in determining whether the President “may
have engaged in illegal conduct,” ibid., belies any such

 28
object. And at all events, the committee never explained how the information sought in the subpoena
would be “demonstrably critical” to any legislation concerning conflicts or emoluments. Senate Select Committee, 498 F.2d at 731.
Nor does it matter whether the committee’s interest
in “accurate[] report[ing]” of the President’s finances
could in theory result in valid legislation amending the
financial-disclosure laws. 19-5142 C.A. App. 107; see
19-715 Pet. App. 59a-62a. The committee has not explained why detailed information about the President’s
personal finances, including for several years before he
became a presidential candidate, would be relevant,
much less “demonstrably critical,” to any investigation
related to such hypothetical legislation. Senate Select
Committee, 498 F.2d at 731. Legislative judgments
“normally depend more on the predicted consequences
of proposed legislative actions and their political acceptability, than on precise reconstruction of past events.”
Id. at 732; see Watkins, 354 U.S. at 204. The Mazars
subpoena on its face seeks the latter, suggesting that its
“real object” is to expose personal wrongdoing, not
amend the disclosure laws. McGrain, 273 U.S. at 178;
cf. Rumely, 345 U.S. at 44 (courts must not be “blind”
to what “all others can see and understand”) (brackets
and citation omitted).
2. Deutsche Bank and Capital One

In concluding that the Financial Services and Intelligence Committees’ subpoenas served a valid legislative purpose, the court of appeals relied on House Resolution 206, which states that the House “supports efforts to close loopholes that allow corruption, terrorism,
and money laundering to infiltrate our country’s finan-

 29
cial system.” J.A. 280a (citation omitted). Although legislation designed to close such regulatory loopholes is
undoubtedly within Congress’s constitutional competence, House Resolution 206 does not connect those
general matters to the President’s personal finances in
particular. See H.R. Res. 206, at 1-5.
Indeed, there is no discernible reason why a congressional investigation into the general problem of money
laundering should focus on the President in particular.
Countless persons have engaged in the sorts of financial
transactions that could implicate existing statutory or
regulatory loopholes. A bona fide legislative inquiry
into the subjects of “corruption, terrorism, and money
laundering,” H.R. Res. 206, at 5, would cast a wide net
rather than employ a harpoon. And to the extent the
Intelligence Committee Chair expressed concerns with
foreign interference in the U.S. political process, see
165 Cong. Rec. H3481 (daily ed. May 8, 2019), House
Resolution 206 does not appear to encompass or adopt
that purpose at all, much less as a basis to issue the subpoenas here. It bears mention that the two committees
issued identical subpoenas to Deutsche Bank—one purportedly to investigate foreign interference in our elections; the other purportedly to investigate moneylaundering. As with the nearly identical subpoenas to
Mazars issued by the Oversight Committee and the
New York District Attorney, that carbon-copy subpoenas are claimed to serve two markedly divergent purposes strongly suggests that neither is the real object.
Providing an even “strong[er] reason to doubt” the
subpoenas’ stated object, Watkins 354 U.S. at 213, is the
sweeping breadth of the information demanded. As
with the Mazars subpoena, the Deutsche Bank and Cap-

 30
ital One subpoenas seek “minutiae” about the President’s personal finances, id. at 204, in an apparent attempt to create a “precise reconstruction of past
events,” Senate Select Committee, 498 F.2d at 732. The
Deutsche Bank subpoenas request a universe of financial documents that spans a decade, from 2010 to present, relating to the President, members of his family,
and his private business entities. See J.A. 128a-140a.
The Capital One subpoena is somewhat narrower in its
temporal reach, but it too seeks a wide range of financial
documents regarding the President and his businesses
over that period. See J.A. 152a-158a. Together, those
documents encompass a constellation of transactions
that would permit the committees to reconstruct in detail
the President’s financial history with those institutions—
including fund transfers, deposits, withdrawals, investments, loans, mortgages, and lines of credits.
Congressional investigators may not seek such details merely because they might be “thought to be related in some way” to a legislative purpose. Watkins,
354 U.S. at 204. Yet the committees provided no explanation why that trove of personal information is even
reasonably related—much less “demonstrably critical,”
Senate Select Committee, 498 F.2d at 731—to the antimoney-laundering purposes set forth in House Resolution 206. Indeed, the July 19, 2016, starting date for the
Capital One subpoena—the precise date on which the
President became the Republican Party nominee—has
no evident connection to money laundering whatsoever.
See Watkins, 354 U.S. at 204 (“Remoteness of subject
can be aggravated by a probe for a depth of detail even
farther removed from any basis of legislative action.”).

 31
To be sure, congressional committees ordinarily
have considerable latitude about which private transactions and events to examine. But committees investigating far-reaching public problems, such as money
laundering, do not properly exercise that discretion by
making the President the primary target of their inquiries. Even if the committees believed that the President
may have engaged in transactions that implicate the
regulatory loopholes discussed in House Resolution
206, the House has not “assay[ed] the relative necessity” of seeking records from the President rather than
from someone—anyone—else. Watkins, 354 U.S. at
206. Likewise, although an interest in foreign influence
on federal elections may have a connection to recent political candidates for federal office, the committees have
not explained why the President’s personal finances
should be the primary target to examine in that respect.
Instead, the committees seemed deliberately to target
the President “as a useful case study.” 19-1540 C.A.
App. 133. That is precisely the sort of danger that constitutional separation-of-powers principles are intended
to avoid.
C. Constitutional Avoidance Also Counsels Reversal

Alternatively, this Court could avoid opining on the
limits of Congress’s implied investigatory powers with
respect to the President, and instead invalidate the subpoenas on the independent ground that the full House
has not authorized them with the requisite clarity and
particularity. House Resolution 507 provided a blanket
authorization not only for these subpoenas, but for all
“current and future” subpoenas by any committee issued “directly or indirectly” to the President “in his personal or official capacity,” without regard to the purpose
or scope of the subpoenas. H.R. Res. 507, at 2-3. Even

 32
assuming that retroactive authorization suffices, but cf.
Watkins, 354 U.S. at 204 (disapproving “retroactive rationalization”), the House’s blessing of all existing and
future investigations into the President, for whatever
purpose, calls into question whether that chamber has
truly “demonstrated its full awareness” of the serious
constitutional issues implicated by that blank-check approach. Rumely, 345 U.S. at 46. Indeed, the House’s
indiscriminate approach renders the “excessively
broad” resolution too “vague” and “nebulous” to permit
meaningful judicial review of these (or any other) subpoenas issued under its auspices. Watkins, 354 U.S. at
201, 205; see Rumely, 345 U.S. at 46.
Compounding the resolution’s vagueness is the failure of the full House to set forth in clear terms a legitimate legislative purpose for each of the subpoenas and
how each piece of information sought in the subpoenas
is demonstrably critical to achieving those purposes.
The attempts to satisfy those requirements were undertaken solely by the respective committee chairs in statements of various formality, ranging from a memorandum on committee letterhead to a press release. As explained above, those attempts are insufficient to satisfy
the constitutional requirements with respect to the subpoenas here. Regardless, the full House’s failure to expressly validate and adopt as its own those statements
by the respective committee chairs is sufficient to render the subpoenas invalid. See Rumely, 345 U.S. at 46.
“A measure of added care on the part of the House” in
this regard “is a small price to pay if it serves to uphold
the principles of limited, constitutional government.”
Watkins, 354 U.S. at 215-216.
The court of appeals in Mazars thought the full
House’s validation unnecessary because that “deal[s]

 33
exclusively with the allocation of authority within the
legislative branch,” and thus does not “ ‘alter the balance between’ the two political branches.” 19-715 Pet.
App. 68a-69a (citation omitted). But it obviously alters
the interbranch balance when a single Member exercises the full House’s power without first convincing
217 colleagues to agree; a full House vote ensures adequate deliberation and is part of the system of checks
and balances. Cf. Chadha, 462 U.S. at 958 & n.23; The
Federalist No. 70, at 475 (explaining that “deliberation
and circumspection” in a plural legislature “serve to
check excesses”). As this Court observed in Watkins,
allowing a single committee or committee chair to wield
the House’s extraordinary investigatory power “insulates the House” from accountability and creates “a
wide gulf between the responsibility for the use of investigative power and the actual exercise of that
power.” 354 U.S. at 205. The Court recognized such
accountability as “an especially vital consideration in
assuring respect for constitutional liberties.” Ibid. It
is no less vital in assuring respect for constitutional separation of powers.
This Court and other courts have invalidated congressional subpoenas on similar threshold grounds to
avoid opining on the constitutional limits of Congress’s
implied investigatory authority. E.g., Rumely, 345 U.S.
at 45-46; Tobin, 306 F.2d at 275-277. Such constitutional avoidance is especially appropriate in disputes
between Congress and the President. See Public Citizen v. United States Department of Justice, 491 U.S.
440, 466 (1989) (“Our reluctance to decide constitutional
issues is especially great where * * * they concern the
relative powers of coordinate branches of govern-

 34
ment.”). Because “ ‘constitutional confrontation[s] between the two branches’ should be avoided whenever
possible,” courts should consider “the choices available”
and “explore other avenues” before ruling on such a
confrontation. Cheney, 542 U.S. at 389-390 (citation
omitted).
For example, Rumely affirmed the reversal of a conviction for refusing to comply with a congressional subpoena by construing language in the authorizing resolution narrowly, so that the requested information was
not pertinent to the thus-narrowed legislative purpose.
See 345 U.S. at 47-48. The Court forthrightly acknowledged its “strained” reading of the language, id. at 47,
but justified that approach because “[g]rave constitutional questions are matters properly to be decided by
this Court but only when they inescapably come before
us for adjudication,” id. at 48. “Until then,” the Court
explained, “it is our duty to abstain from marking the
boundaries of congressional power.” Ibid.
As in Rumely, the Court could refuse to enforce the
subpoenas here on the threshold grounds set forth
above. That would render it unnecessary to opine on
the merits of a difficult and sensitive interbranch conflict. Rumely explained that when such conflicts arise,
“[e]xperience admonishes us to tread warily in this domain” and “strongly counsel[s] abstention from adjudication unless no choice is left.” 345 U.S. at 46. As in
Rumely, “[c]hoice is left.” Id. at 47.

 35
CONCLUSION

The judgments of the courts of appeals should be
reversed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
SOPAN JOSHI
Assistant to the Solicitor
General
MARK R. FREEMAN
SCOTT R. MCINTOSH
DENNIS FAN
GERARD J. SINZDAK
Attorneys

FEBRUARY 2020