Nos. 19-715, 19-760
IN THE

Supreme Court of the United States
————
DONALD J. TRUMP, et al.,
Petitioners,
v.
MAZARS USA, LLP, et al.,
Respondents.
————
DONALD J. TRUMP, et al.,
Petitioners,
v.
DEUTSCHE BANK AG, et al.,
Respondents.
————
On Writs of Certiorari to the
United States Courts of Appeals for the
District of Columbia and Second Circuits
————
BRIEF OF BIPARTISAN FORMER MEMBERS
OF CONGRESS AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
————
SARAH TURBERVILLE
PROJECT ON GOVERNMENT
OVERSIGHT
1100 G Street NW
Suite 500
Washington, DC 20005
202-347-1122
sturberville@pogo.org

ANDRE M. MURA
Counsel of Record
GIBBS LAW GROUP LLP
505 14th Street
Suite 1110
Oakland, CA 94612
(510) 350-9700
amm@classlawgroup.com

Counsel for Amici Curiae
March 4, 2020
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICI CURIAE ........................

1

SUMMARY OF ARGUMENT .............................

1

ARGUMENT ........................................................

3

I. CONGRESS’S BROAD INVESTIGATORY
POWER IS AN ESTABLISHED FEATURE OF THIS COURT’S SEPARATIONOF-POWERS JURISPRUDENCE ...........

3

II. CONGRESS’S LONG HISTORY OF
INVESTIGATIONS, INCLUDING OF
THE PRESIDENT, SHOULD CARRY
GREAT WEIGHT IN THIS COURTS
DETERMINATION OF THE SEPARATION OF POWERS ..................................

7

III. THE COURT SHOULD APPLY THE
PRESUMPTION OF VALIDITY IN
DECIDING THIS CASE ...........................

11

CONCLUSION ....................................................

14

APPENDIX
List of Amici Curiae—Former Members of
Congress ...........................................................

(i)

1a

 ii
TABLE OF AUTHORITIES
CASES

Page(s)

Barenblatt v. United States,
360 U.S. 109 (1959) ...................................

3, 4

Eastland v. United States Servicemen’s Fund,
421 U.S. 491 (1975) ..................................passim
Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd.,
561 U.S. 477 (2010) ...................................

13

Hutcheson v. United States,
369 U.S. 599 (1962) ...................................

7

In re Chapman,
166 U.S. 661 (1897) ...................................

7

Kilbourn v. Thompson,
103 U.S. 168 (1880) ...................................

6

McCulloch v. Maryland,
4 Wheat. 316 (1819) ...................................

8

McGrain v. Daugherty,
273 U.S. 135 (1927) ................................. 3, 7, 11
McSurely v. McClellan,
553 F.2d 1277 (D.C. Cir. 1976) .................

6

Mistretta v. United States,
488 U.S. 361 (1989) ...................................

7-8

N.L.R.B. v. Noel Canning,
573 U.S. 513 (2014) ................................. 7, 8, 11
Quinn v. United States,
349 U.S. 155 (1955) ................................... 4, 6, 7
Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999) ...................................

12

 iii
TABLE OF AUTHORITIES—Continued
Page(s)
Tenney v. Brandhove,
341 U.S. 367 (1951) ...................................

12

The Pocket Veto Case,
279 U.S. 655 (1929) ...................................

8

Trump v. Deutsche Bank AG,
943 F. 3d 627 (2d Cir. 2019) .....................

13

Trump v. Mazars USA, LLP,
940 F. 3d 710 (D.C. Cir. 2019) ..................

13

United States v. Helstoski,
442 U.S. 477 (1979) ...................................

6

United States v. Johnson,
383 U.S. 169 (1966) ...................................

6

United States v. Miller,
425 U.S. 435 (1976) ...................................

14

United States v. Rumely,
345 U.S. 41 (1953) .....................................

4

Watkins v. United States,
354 U.S. 178 (1957) ..................................passim
Wilkinson v. United States,
365 U.S. 399 (1961) ...................................

12

Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S., 579 (1952) ..................................

8

CONSTITUTION
U.S. Const. art. I...........................................

3

U.S. Const. art. I, § 1 ....................................

6

 iv
TABLE OF AUTHORITIES—Continued
OTHER AUTHORITIES

Page(s)

Arthur Schlesinger Jr., Introduction to the
Previous Edition in I Congress Investigates:
A Documented History (Roger A. Bruns et
al. eds., 2011) ............................................

5

David R. Mayhew, Divided We Govern, Party
Control, Lawmaking, and Investigations
1946-2002 (Yale. Univ. Press 2005) .........

6

Donald A. Ritchie, The Pecora Committee
on the Stock Market Crash, 1933-34, in I
Congress Investigates: A Documented History (Roger A. Bruns et al. eds., 2011) .....

10

Douglas L. Kriner & Eric Schickler,
Investigating the President: Congressional Checks on Presidential Power
(2016) .........................................................

9

Hasia Diner, The Teapot Dome Scandal,
1922-24, in I Congress Investigates: A
Documented History (Roger A. Bruns et
al. eds., 2011) ............................................

9

Inquiry into the Matter of Billy Carter and
Libya: Hearings Before the Subcomm. to
Investigate Individuals Representing the
Interests of Foreign Gov’ts of the S.
Comm. on the Judiciary (Billy Carter
Hearings), vol. I, 96th Cong. 510 (1980) ...

10

James M. Landis, Constitutional Limitations on the Congressional Power of
Investigation, 40 Harv. L. Rev. 153 (1926)...

9

 v
TABLE OF AUTHORITIES—Continued
Page(s)
Keith W. Olson, The Watergate Committee,
1973-74, in II Congress Investigates: A
Documented History (Roger A. Bruns et
al. eds., 2011) ............................................

9

Norman Dorsen & John H.F. Shattuck,
Executive Privilege, The Congress and the
Courts, 35 Ohio State L.J. 1 (1974) ..........

5

Note, The Presumption of Regularity in
Judicial Review of the Executive Branch,
131 Harv. L. Rev. 2431 (2018) .................. 12, 13
Telford Taylor, Grand Inquest: The Story of
Congressional Investigations (1955) ...........

9

The Federalist No. 51 (Feb. 6, 1877) ...........

5

U.S. Senate, Permanent Subcomm. on
Investigations, Comm. on Homeland Sec.
& Gov’t Affairs, Wall Street And The
Financial Crisis: Anatomy Of A Financial Collapse, Majority And Minority
Staff Report (Apr. 13, 2011) .....................

10

William P. Marshall, The Limits on Congress’s
Authority to Investigate the President,
2004 U. Ill. L. Rev. 781 (2004) ..................

4

Woodrow Wilson, Congressional Government:
A Study in American Politics (1913) ........

4, 5

 INTEREST OF AMICI CURIAE1
Amici are a bipartisan group of former members of
the U.S. Senate and House of Representatives, all of
whom exercised the power of inquiry that is essential
to a functioning Congress.
Without robust investigatory powers, Congress could
neither legislate wisely or effectively, nor discharge its
duty to inquire into and publicize corruption, maladministration, or waste in government—including in
the Executive Branch. Amici thus have a substantial
interest in ensuring the continued breadth of Congress’s constitutional oversight authority.
SUMMARY OF ARGUMENT
1. Judicial precedent teaches that Congress’s broad
(but not unlimited) power to investigate is essential to
its legislative functions. Congress cannot legislate in
the dark but needs the broadest range of information
to make considered decisions. Sources of information
have long included members of the Executive Branch
and private citizens.
Precedent also teaches that Congress’s power to
probe and expose mismanagement in government is a
critical, and independent, feature of Congress’s oversight role. This “informing function” is indispensable
to decision-making and political accountability in a
democracy.
2. These traditional ways of governing give meaning to the Constitution and have carried great weight
1

No counsel for a party authored this brief in whole or in part
and no person other than amici and their counsel made a
monetary contribution to its preparation or submission. All
parties have provided blanket consent for the filing of amici
curiae briefs or filed letters of nonparticipation in this litigation.

 2
in the proper interpretation of the Constitution’s separation of powers. History abounds with examples of
congressional oversight that birthed significant legislation or exposed private illegality or misfeasance
within the Executive Branch. These examples have
long informed what the law is.
3. Owing to this significant historical practice, the
Court has approached legal disputes over the scope of
Congress’s investigatory powers with judicial humility. Time and again, the Court has declined to find that
Congress or its committees have exceeded the bounds
of legislative power unless it is obvious that Congress
has sought to exercise an exclusive function of a
coordinate branch.
Thus, the Court has suggested that judicial review
is complete once a valid legislative purpose for an
investigation can be identified. It has been unwilling
to look behind Congress’s or a committee’s legislative
and oversight purposes, for example, to ascertain
motive.
The courts below nevertheless probed Congress’s
actual purposes for the committees’ investigations,
ultimately finding that the information sought was
sufficiently related to valid legislative purposes. Even
under the courts of appeals’ stricter standard, the
subpoenas should be upheld. But there is no good
reason to decline to presume that Congress’s actions
here were undertaken for legitimate purposes since
they are capable of being so construed. Just as this
Court applies a presumption of regularity to executive
action, so too should it apply the longstanding presumption that congressional committees act with a
legislative purpose and hence within their constitutional domain.

 3
ARGUMENT
I. CONGRESS’S BROAD INVESTIGATORY
POWER IS AN ESTABLISHED FEATURE
OF THIS COURT’S SEPARATION-OFPOWERS JURISPRUDENCE.
Long ago, in the pathmarking decision of McGrain
v. Daugherty, 273 U.S. 135 (1927), this Court recognized Congress’s broad constitutional authority to
investigate in aid of its legislative powers under
Article I of the Constitution: “[T]he power of inquiry—
with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Id. at 174.
The Court has not wavered from that understanding. Thus, in Barenblatt v. United States, 360 U.S. 109
(1959), the Court recognized: “The power of inquiry
has been employed by Congress throughout our history, over the whole range of the national interests
concerning which Congress might legislate or decide
upon due investigation not to legislate; it has similarly
been utilized in determining what to appropriate from
the national purse, or whether to appropriate.” Id. at
111. Likewise, in Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), the Court again
appreciated that “the power to investigate is inherent
in the power to make laws because ‘a legislative body
cannot legislate wisely or effectively in the absence of
information respecting the conditions which the
legislation is intended to affect or change.’”) Id. at 504
(brackets omitted) (quoting McGrain, 273 U.S. at 175).
And for good reason. “Without the power to
investigate—including of course the authority to compel testimony, either through its own processes or
through judicial trial—Congress could be seriously
handicapped in its efforts to exercise its constitutional

 4
function wisely and effectively.” Quinn v. United
States, 349 U.S. 155, 160–61 (1955). “[I]t is often
through congressional hearings and investigations
that foundational ideas and insights of how to address
social ills are generated. As history attests, some of
the nation’s most important enactments would never
have materialized had Congress not had investigative
powers.” William P. Marshall, The Limits on Congress’s Authority to Investigate the President, 2004 U.
Ill. L. Rev. 781, 799 (2004).
The Court has thus recognized Congress’s wide
latitude to investigate. “The scope of the power of
inquiry,” Barneblatt explained, “is as penetrating and
far-reaching as the potential power to enact and
appropriate under the Constitution.” 360 U.S. at 111.
“It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly
needed statutes. It includes surveys of defects in our
social, economic or political system for the purpose
of enabling the Congress to remedy them.” Watkins v.
United States, 354 U.S. 178, 187 (1957). And critically:
“It comprehends probes into departments of the
Federal Government to expose corruption, inefficiency
or waste.” Id.
Another independent source of Congress’s power
to investigate is the so-called “informing function.” See
Woodrow Wilson, Congressional Government: A Study
in American Politics 303 (1913). As then-Professor
Woodrow Wilson famously observed: “‘It is the proper
duty of a representative body to look diligently into
every affair of government and to talk much about
what it sees. . . . The informing function of Congress
should be preferred even to its legislative function.’”
Id; see also United States v. Rumely, 345 U.S. 41, 43
(1953). And so, even though Congress cannot “expose

 5
for the sake of exposure,” it nevertheless can “inquire
into and publicize corruption, maladministration or
inefficiency in agencies of the Government” in order to
inform the public “concerning the workings of its
government.” Watkins, 354 U.S. at 200 & n.33.
The informing function plays a critical role in our
democracy by fostering self-governance: “[T]he only
really self-governing people is that people which discusses and interrogates its administration.” Wilson,
supra, at 303. The historian Arthur Schlesinger Jr.
thus observed in the wake of Watergate: “The manner
in which Congress exercises the investigative power
will largely determine in years to come whether the
problem posed in the 51st Federalist can be satisfactorily answered—whether the constitutional order will
in the end oblige the American government to control
itself.” See Arthur Schlesinger Jr., Introduction to the
Previous Edition in I Congress Investigates: A Documented History, xx (Roger A. Bruns et al. eds., 2011).
Other scholars took the same lesson from Watergate:
“[T]he denial of information to Congress must,
finally, be regarded as a more serious threat
to the balance of government than the denial
of evidence to a prosecutor, because the Congress can neither legislate, nor investigate,
nor impeach, if it lacks information to determine when to exercise these political powers,
which ultimately are the only effective checks
on a runaway Executive.
Norman Dorsen & John H.F. Shattuck, Executive
Privilege, The Congress and the Courts, 35 Ohio State
L.J. 1, 8 (1974). More recently still, a leading scholar
of Congress recognized: “Beyond making laws, Congress probably does nothing more consequential than
investigate alleged misbehavior in the executive

 6
branch.” David R. Mayhew, Divided We Govern, Party
Control, Lawmaking, and Investigations 1946-2002, at
8 (Yale. Univ. Press 2005).
Courts have also recognized Congress’s informing
function when addressing the scope of the Constitution’s Speech or Debate Clause. U.S. Const. art. I, § 6,
cl.1. That provision works “to preserve the constitutional structure of separate, coequal, and independent
branches of government.” United States v. Helstoski,
442 U.S. 477, 491 (1979); see also United States v.
Johnson, 383 U.S. 169, 178 (1966) (Speech or Debate
Clause “reinforc[es] the separation of powers so deliberately established by the Founders”). In this context,
courts have found that fact-finding and informationgathering are legislative acts that enjoy speech-ordebate protection. E.g., Eastland, 421 U.S. at 508-09;
McSurely v. McClellan, 553 F.2d 1277, 1286-87 (D.C.
Cir. 1976) (en banc) (opinion of Leventhal, J.).
These investigatory powers, however, are not unlimited. The power to investigate “must not be confused
with any of the powers of law enforcement.” Quinn,
349 U.S. at 161. “Nor does it extend to an area in which
Congress is forbidden to legislate.” Id. “Still further
limitations on the power to investigate are found in the
specific individual guarantees of the Bill of Rights
. . . .” Id. What’s more, the power to investigate “cannot
be used to inquire into private affairs unrelated to
a valid legislative purpose.” Id. And lastly, Congress
cannot “assume[ ] a power which could only be properly exercised by another branch of the government.”
Kilbourn v. Thompson, 103 U.S. 168, 192 (1880).
These constraints, however, are themselves quite
narrow. “At most, Kilbourn is authority for the proposition that Congress cannot constitutionally inquire
‘into the private affairs of individuals who hold no

 7
office under the government’ when the investigation
‘could result in no valid legislation on the subject
to which the inquiry referred.’” Hutcheson v. United
States, 369 U.S. 599, 613 n.16 (1962) (lead opinion of
Harlan, J.). Congress can nonetheless investigate
private affairs “as long as the inquiry is related ‘to
a valid legislative purpose.’” Quinn, 349 U.S. at 161.
And though Congress cannot investigate merely to
punish, it can investigate wrongdoing even if such
conduct might otherwise reveal a crime or be the
subject of criminal process. See McGrain, 273 U.S. at
177-78; see also id. at 179-80 (“Nor do we think it a
valid objection to the investigation that it might
possibly disclose crime or wrongdoing on his part.”).
Lastly, although Congress’s investigatory authority is
co-extensive with its authority to enact valid legislation, there is no requirement that Congress identify
future legislation “in advance.” In re Chapman, 166
U.S. 661, 670 (1897). Nor is it necessary that Congress
conclude every investigation with legislation. That
is so because “[t]he very nature of the investigative
function—like any research—is that it takes the
searchers up some ‘blind alleys’ and into nonproductive enterprises.” Eastland, 421 U.S. at 509. “To be a
valid legislative inquiry,” then, “there need be no
predictable end result.” Id.
II. CONGRESS’S LONG HISTORY OF INVESTIGATIONS, INCLUDING OF THE PRESIDENT, SHOULD CARRY GREAT WEIGHT
IN THIS COURT’S DETERMINATION OF
THE SEPARATION OF POWERS.
In separation-of-powers cases, the Court has “put
significant weight upon historical practice.” N.L.R.B.
v. Noel Canning, 573 U.S. 513, 524 (2014) (emphasis

 8
removed); see, e.g., Mistretta v. United States, 488 U.S.
361, 400–01 (1989) (“While these [practices] spawned
spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give
meaning’ to the Constitution” (quoting Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S., 579, 610 (1952)
(Frankurter, J., concurring)).
In the seminal case of McCulloch v. Maryland,
4 Wheat. 316 (1819), for example, Chief Justice
Marshall wrote that “the respective powers of those
who are equally the representatives of the people, are
to be adjusted; if not put at rest by the practice of
the government, ought to receive a considerable
impression from that practice.” Id. at 401. Later, in
The Pocket Veto Case, 279 U.S. 655 (1929), the Court
recognized that “[l]ong settled and established practice
is a consideration of great weight in a proper interpretation of constitutional provisions” respecting the
relationship between Congress and the President.
Id. at 689. And more recently, the Court confirmed
that “the longstanding ‘practice of the government’
can inform our determination of ‘what the law is[.]’”
Noel Canning, 573 U.S. at 524 (citations omitted); see
generally William Baude, Constitutional Liquidation,
71 Stan. L. Rev. 1 (2019) (exploring Madison’s expectation that the Constitution’s meaning would be
“liquidated” over time by practice).
The relevant historical touchstones for this case
demonstrate a long lineage of congressional investigations into the financial affairs of individuals and
businesses, including those of the President and his
family, as those dealings pertain to legislative subjects
such as “money-laundering, election- and nationalsecurity, disclosure, and conflict-of-interest laws.”
Resp. Br. 53. Those inquires have often resulted in

 9
legislative reforms or exposed misfeasance in government with the goal of ending Executive Branch
abuses. Indeed, scholars have estimated that, between
1898 and 2014, Congress held more than 4,500 hearings in the course of investigating allegations of
Executive Branch misconduct. See Douglas L. Kriner
& Eric Schickler, Investigating the President: Congressional Checks on Presidential Power 36 (2016).
Examples abound. From the start of the Republic,2
Congress has investigated:

2



military action, see Telford Taylor, Grand Inquest: The Story of Congressional Investigations
22-24 (1955) (recounting that President Washington, on recommendation of his Cabinet,
directed that records of General St. Clair’s
expedition be produced to a House committee);



corruption and self-dealing, see Hasia Diner,
The Teapot Dome Scandal, 1922-24, at 460-61,
in I Congress Investigates, supra (examining
Senate investigation into secret dealings between Secretary of Interior and oil companies);



illegality, see Keith W. Olson, The Watergate
Committee, 1973-74, at 886, in II Congress
Investigates, supra (documenting Senate inquiry into break-in at Democratic headquarters, an inquiry that included testimony of highlevel White House officials, such as the Chief of
Staff, Assistant to the President of Domestic
Affairs, and Counsel for the President);

Legislative investigation and compulsory process has been
traced to the English Parliament. See generally James M. Landis,
Constitutional Limitations on the Congressional Power of
Investigation, 40 Harv. L. Rev. 153, 162-63 (1926).

 



10
multiple financial crises, see Donald A. Ritchie,
The Pecora Committee on the Stock Market
Crash, 1933-34, at 500-502, in I Congress
Investigates, supra (examining extensive congressional investigation into the stock market
crash of 1929, and explaining that by 1934,
committee hearings “had generated 12,000
pages of testimony and more than a thousand
exhibit[s]”; and with that “necessary factual
base,” Congress passed the Glass Steagall Act,
the Securities Act of 1933, and the Securities
Exchange Act of 1934, which together “added
additional oversight and protection against
abuses”); see also U.S. Senate, Permanent
Subcomm. on Investigations, Comm. on Homeland Sec. & Gov’t Affairs, Wall Street And
The Financial Crisis: Anatomy Of A Financial
Collapse, Majority And Minority Staff Report
(Apr. 13, 2011) (two-year, bi-partisan investigation into economic collapse of 2008, culminating
in 750-page report based on 50 million pages of
documents and 150 interviews);
and conflicts-of-interest, see, e.g., Inquiry into
the Matter of Billy Carter and Libya: Hearings
Before the Subcomm. to Investigate Individuals
Representing the Interests of Foreign Gov’ts of
the S. Comm. on the Judiciary (Billy Carter
Hearings), vol. I, 96th Cong. 510 (1980) (Senate
investigation of President Carter’s business and
personal relationship with sibling for sibling’s
dealings with Libya); id., vol. III, at 1666, 1706
(Senate committee obtained (among other
things) sibling’s financial records).

Certain of these inquires (among others) touched on
“official and personal activities of Presidents and their

 11
families throughout the Nation’s history.” Resp. Br.
12; see id. at 7-12 (collecting examples). And in many
such instances, Presidents and their families or close
associates have submitted to Congress’s oversight.
Resp. Br. 9-12 (Presidents Andrew Johnson, Carter,
and Reagan).
Given the history of congressional investigations,
the Court should “hesitate to upset the compromises
and working arrangements that the elected branches
of Government themselves have reached.” Noel
Canning, 573 U.S. at 526.
III. THE COURT SHOULD APPLY THE
PRESUMPTION
OF
VALIDITY
IN
DECIDING THIS CASE.
The courts below examined Congress’s objectives for
the investigations and found that the information
sought was sufficiently related to valid legislative
purposes. But this Court has been more circumspect
in its judicial review. Upon finding that the subject
matter of an investigation evinces a valid legislative
purpose, the Court has presumed that this was Congress’s “real object,” McGrain, 273 U.S. at 178—even
when, as in McGrain itself, the congressional resolution authorizing an investigation did not “avow” that
it was in aid of legislation, id. at 177, and the subpoena
in dispute sought information related to official conduct by a senior Executive Branch official, the
Attorney General. Id. at 151.
The Court in Watkins similarly urged deference to
Congress, instructing: “every reasonable indulgence of
legality must be accorded to the actions of a coordinate
branch of our Government.” 354 U.S. at 204. Later, in
Eastland, the Court admonished lower “courts [ ] not
[to] go beyond the narrow confines of determining that

 12
a committee’s inquiry may fairly be deemed within its
province.’” 421 U.S. at 506 (1975) (quoting Tenney v.
Brandhove, 341 U.S. 367, 378 (1951)).
Consequently, “[t]o find that a committee’s investigation has exceeded the bounds of legislative power
it must be obvious that there was a usurpation of
functions exclusively vested in the Judiciary or the
Executive.” Tenney, 341 U.S. at 378 (emphasis added).
Otherwise, courts should not “speculate as to the
motivations that may have prompted the decision of
individual [committee] members” to investigate. See
Wilkinson v. United States, 365 U.S. 399, 412 (1961).
In any event, “motives alone would not vitiate an
investigation which had been instituted by a House of
Congress if that assembly’s legislative purpose is
being served.” Watkins, 354 U.S. at 200.
This presumption of validity for congressional investigations is akin to the presumption of regularity that
attends executive action. Just as the Court has
required that it be obvious that a congressional investigation trespass on the exclusive functions of a
coordinate branch, the Court has required “clear
evidence” before it will “displac[e] the presumption [of
regularity” that attends executive action. See Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
489 (1999) (addressing prosecutorial discretion); see
generally Note, The Presumption of Regularity in
Judicial Review of the Executive Branch, 131 Harv. L.
Rev. 2431 (2018) (“When a plaintiff alleges that the
government skirted procedures or acted on illicit
motives, courts will sometimes ‘presume’ that ‘official
duties’ have been ‘properly discharged’ until the chal-

 13
lenger presents ‘clear evidence to the contrary.’”)
(citations omitted).3
There is no good reason to deny Congress deference
in this case. In Mazars, “the challenged subpoena
seeks financial records totally unrelated to any of the
President’s official actions[.]” Pet. App. 27a. Likewise,
in Deutsche Bank, “the challenged subpoenas seek
financial records of the person who is the President,
[but] no documents are sought reflecting any actions
taken by Donald J. Trump acting in his official
capacity as President.” J.A. 230a. What’s more, no
party has argued that “the actual subpoenas at issue,
which request records in the hands of third parties,
‘impair’ the President “in the performance of [his]
constitutional duties.” Resp. Br. 61 (quoting Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 500 (2010)). Thus, even if this deferential presumption might be inappropriate to resolve disputes
between coordinate branches of government where the
President “carries the mantle of the Office of the
President,” Pet. App. 27a, this is not such a case.
Here, the subject-matter of the investigations fit
neatly within Congress’s longstanding legislative
prerogatives over financial dealings, ethics, conflicts of
interest, national security, and the like, including as
such matters pertain to the Presidency. Not only are
these subjects on which “legislation may be had,”
Eastland, 421 U.S. at 506, but the committees have
reported or introduced several bills related to these
inquiries. See Resp. Br. 46. Thus, because the subject
3

“This Note examines the Supreme Court’s application of
the presumption of regularity to the executive branch, but the
presumption also applies to private actors and to judicial and
legislative actions.” Id. at 2432 n.9.

 14
matter of these investigations evince a valid legislative purpose, the judicial task of determining whether
Congress and its committees have acted within their
constitutional domain should come to an end.4
CONCLUSION
The judgments of the courts of appeals should be
affirmed.
Respectfully submitted.
SARAH TURBERVILLE
PROJECT ON GOVERNMENT
OVERSIGHT
1100 G Street NW
Suite 500
Washington, DC 20005
202-347-1122
sturberville@pogo.org

ANDRE M. MURA
Counsel of Record
GIBBS LAW GROUP LLP
505 14th Street
Suite 1110
Oakland, CA 94612
(510) 350-9700
amm@classlawgroup.com

Counsel for Amici Curiae
March 4, 2020

4

To the extent Watkins suggests courts should then weigh
valid legislative purposes against private individual rights, such
balancing would not change the outcome here, because there is
no countervailing privacy interest in the financial records at
issue. See United States v. Miller, 425 U.S. 435, 440 (1976). Even
so, that balancing approach overreads Watkins and ignores Eastland, which clarified that balancing applies only in criminal
cases. 421 U.S. at 491 n.16.

 APPENDIX

1a
APPENDIX
List of Amici Curiae—
Former Members of Congress
Michael Barnes
U.S. House of Representatives (D-MD), 1979-1987
Steve Bartlett
U.S. House of Representatives (R-TX), 1983-1993
William Clinger
U.S. House of Representatives (R-PA), 1979-1997
Thomas Coleman
U.S. House of Representatives (R-MO), 1977-1993
Mickey Edwards
U.S. House of Representatives (R-OK), 1977-1993
Martin Frost
U.S. House of Representatives (D-TX), 1979-2005
Wayne Gilchrest
U.S. House of Representatives (R-MD), 1991-2009
Gary Hart
U.S. Senate (D-CO), 1975-1987
James Leach
U.S. House of Representatives (R-IA), 1977-2007
Brad Miller
U.S. House of Representatives (D-NC), 2003-2013
George Miller
U.S. House of Representatives (D-CA), 1975-2015
Christopher Shays
U.S. House of Representatives (R-CT), 1987-2009
David Skaggs
U.S. House of Representatives (D-CO), 1987-1999

 2a
Peter Smith
U.S. House of Representatives (R-VT), 1989-1991
Alan Steelman
U.S. House of Representatives (R-TX), 1973-1977
Henry Waxman
U.S. House of Representatives (D-CA), 1975-2015
Dick Zimmer
U.S. House of Representatives (R-NJ), 1991-1997