The President's tax returns sought by a subpoena of the Oversight Committee of the House of Representatives must be turned over according to the majority of a three judge panel of the United States Court of Appeals in Trump v. Mazars.
Forever ago in June I warned of the dangers of a monarchical presidency because - seeking to quash a House of Representatives subpoena to his accountants for his tax returns to the - Trump's DOJ had argued Congress lacks the power to subject him to conflict of interest laws.
But Neomi Rao, a former Clarence Thomas law clerk newly appointed to the D.C. Circuit Court of Appeals has avoided such a drastic stance. In her dissent in Trump v. Mazars and House Oversight Committee Rao deploys "separation of powers".
But the powers she separates are those of Congress - not the coordinate branches of government. Her motivated reasoning leads to the lawyer's sin of placing syntax over context. Article I of the Constitution declares "All legislative Powers herein granted shall be vested in a Congress of the United States which Shall consist of a Senate and a House of Representatives." And it declares "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." But powers do not end like sentences. The system is an organism, not a sequence of discrete commands. Legislative and executive powers overlap and blend.
Like legislative power - shared by Congress and President (via veto power) so too is executive power shared via oversight - and in the extreme case impeachment. The President is charged with the duty to: "faithfully execute" the laws which Congress passed - even if passed without executive consent. As John Marshall once said "I have always considered Congress to be my government."
But Rao severs the legislative from the oversight and investigative functions of the Congress. In her stringent parsing investigation of a President for law enforcement purposes is beyond Congress's reach. She sees impeachment motives behind the subpoena and finds that beyond the House's legislative powers. She would void the subpoena; finding that the impeachment process is the only valid source of power to investigate our elected monarch.
Congress's legislative and oversight power does not extend to investigation of Presidential misconduct in Rao's thinking.
Invoking an unwritten and previously unsuspected rule she says an express vote of the entire House is required to begin impeachment proceedings. But how would Congress learn of whether there are the "high crimes and misdemeanors"? Or whether legislative or other measures would suffice? Rao's rigid rules would hobble the Congress and leave the President unfettered.
- GWC October 18, 2019
PrawfsBlawg: The President’s Tax Returns
by Marty Lederman - Georgetown Law
Judge Rao's reasoning is that because the Constitution gives the House the power to impeach civil officers, and the Senate the power to try impeachments and to remove officers, that must be the exclusive means by which Congress can investigate wrongdoing by any and all such civil officers--the President, the Vice President, all Art. III judges, all civil officers within the Executive branch, etc.
No, that's not an exaggeration. She wrote: "Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials." And: "Allowing Congress to use the legislative power to circumvent the impeachment process disrupts the separation of powers." And: "Investigating unlawful actions by impeachable officials is outside the legislative power because impeachment provides the exclusive mechanism for Congress to investigate such conduct." And: "The Constitution is best read to provide for impeachment as the exclusive mechanism for Congress to investigate the wrongdoing of the President and other impeachable officials." [There are plenty more examples, too.]
Personally, I find such a stunning proposition to be virtually self-refuting--or, in any event, refuted by everything we know about the history of congressional oversight. (That why it's hardly surprising that Trump's attorneys didn't make this argument, even though they were very aggressive/creative in the arguments they did make.)
Judge Rao's principal error, but hardly her only one, is that she conflates the power to try officials for "crimes," and to remove them from office (something Congress can only do by impeachment, trial and a 2/3 vote in the Senate, of course) with the power to merely investigate, uncover and publicize wrongdoing by government officials--hardly limited to "crimes," let alone to conduct that might warrant the extreme sanction of removal. (And in this case, also to investigate possible conflicts of interest of the President, something that might not even amount to wrongdoing at all.) This is, of course, the sort of thing Congress has been doing throughout the history of the nation, both in the service of possible legislation and pursuant to its "informing function" (informing itself and the public about how the government is operating and whether and how officials are or are not complying with the law), a function Congress "has assiduously performed ... [f]rom the earliest times in its history." Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). (I wrote much more about this after the oral argument in Mazars, here: https://balkin.blogspot.com/2019/07/can-congress-investigate-whether.html)
But Neomi Rao, a former Clarence Thomas law clerk newly appointed to the D.C. Circuit Court of Appeals has avoided such a drastic stance. In her dissent in Trump v. Mazars and House Oversight Committee Rao deploys "separation of powers".
But the powers she separates are those of Congress - not the coordinate branches of government. Her motivated reasoning leads to the lawyer's sin of placing syntax over context. Article I of the Constitution declares "All legislative Powers herein granted shall be vested in a Congress of the United States which Shall consist of a Senate and a House of Representatives." And it declares "The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment." But powers do not end like sentences. The system is an organism, not a sequence of discrete commands. Legislative and executive powers overlap and blend.
Like legislative power - shared by Congress and President (via veto power) so too is executive power shared via oversight - and in the extreme case impeachment. The President is charged with the duty to: "faithfully execute" the laws which Congress passed - even if passed without executive consent. As John Marshall once said "I have always considered Congress to be my government."
But Rao severs the legislative from the oversight and investigative functions of the Congress. In her stringent parsing investigation of a President for law enforcement purposes is beyond Congress's reach. She sees impeachment motives behind the subpoena and finds that beyond the House's legislative powers. She would void the subpoena; finding that the impeachment process is the only valid source of power to investigate our elected monarch.
Congress's legislative and oversight power does not extend to investigation of Presidential misconduct in Rao's thinking.
Invoking an unwritten and previously unsuspected rule she says an express vote of the entire House is required to begin impeachment proceedings. But how would Congress learn of whether there are the "high crimes and misdemeanors"? Or whether legislative or other measures would suffice? Rao's rigid rules would hobble the Congress and leave the President unfettered.
- GWC October 18, 2019
PrawfsBlawg: The President’s Tax Returns
by Marty Lederman - Georgetown Law
Judge Rao's reasoning is that because the Constitution gives the House the power to impeach civil officers, and the Senate the power to try impeachments and to remove officers, that must be the exclusive means by which Congress can investigate wrongdoing by any and all such civil officers--the President, the Vice President, all Art. III judges, all civil officers within the Executive branch, etc.
No, that's not an exaggeration. She wrote: "Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials." And: "Allowing Congress to use the legislative power to circumvent the impeachment process disrupts the separation of powers." And: "Investigating unlawful actions by impeachable officials is outside the legislative power because impeachment provides the exclusive mechanism for Congress to investigate such conduct." And: "The Constitution is best read to provide for impeachment as the exclusive mechanism for Congress to investigate the wrongdoing of the President and other impeachable officials." [There are plenty more examples, too.]
Personally, I find such a stunning proposition to be virtually self-refuting--or, in any event, refuted by everything we know about the history of congressional oversight. (That why it's hardly surprising that Trump's attorneys didn't make this argument, even though they were very aggressive/creative in the arguments they did make.)
Judge Rao's principal error, but hardly her only one, is that she conflates the power to try officials for "crimes," and to remove them from office (something Congress can only do by impeachment, trial and a 2/3 vote in the Senate, of course) with the power to merely investigate, uncover and publicize wrongdoing by government officials--hardly limited to "crimes," let alone to conduct that might warrant the extreme sanction of removal. (And in this case, also to investigate possible conflicts of interest of the President, something that might not even amount to wrongdoing at all.) This is, of course, the sort of thing Congress has been doing throughout the history of the nation, both in the service of possible legislation and pursuant to its "informing function" (informing itself and the public about how the government is operating and whether and how officials are or are not complying with the law), a function Congress "has assiduously performed ... [f]rom the earliest times in its history." Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). (I wrote much more about this after the oral argument in Mazars, here: https://balkin.blogspot.com/2019/07/can-congress-investigate-whether.html)
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