Trump v. Mazars USA, LLP , 207 L. Ed. 2d 951 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TRUMP ET AL. v. MAZARS USA, LLP, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 19–715. Argued May 12, 2020—Decided July 9, 2020*
In April 2019, three committees of the U. S. House of Representatives
issued four subpoenas seeking information about the finances of Pres-
ident Donald J. Trump, his children, and affiliated businesses. The
House Committee on Financial Services issued a subpoena to Deutsche
Bank seeking any document related to account activity, due diligence,
foreign transactions, business statements, debt schedules, statements
of net worth, tax returns, and suspicious activity identified by
Deutsche Bank. It issued a second subpoena to Capital One for similar
information. The Permanent Select Committee on Intelligence issued
a subpoena to Deutsche Bank that mirrored the subpoena issued by
the Financial Services Committee. And the House Committee on
Oversight and Reform issued a subpoena to the President’s personal
accounting firm, Mazars USA, LLP, demanding information related to
the President and several affiliated businesses. Although each of the
committees sought overlapping sets of financial documents, each sup-
plied different justifications for the requests, explaining that the infor-
mation would help guide legislative reform in areas ranging from
money laundering and terrorism to foreign involvement in U. S. elec-
tions. Petitioners—the President in his personal capacity, along with
his children and affiliated businesses—contested the subpoena issued
by the Oversight Committee in the District Court for the District of
Columbia (Mazars, No. 19–715) and the subpoenas issued by the Fi-
nancial Services and Intelligence Committees in the Southern District
of New York (Deutsche Bank, No. 19–760). In both cases, petitioners
contended that the subpoenas lacked a legitimate legislative purpose
——————
* Together with 19–760, Trump et al. v. Deutsche Bank AG et al., on
certiorari to the United States Court of Appeals for the Second Circuit.
2 TRUMP v. MAZARS USA, LLP
Syllabus
and violated the separation of powers. The President did not, however,
argue that any of the requested records were protected by executive
privilege.
In Mazars, the District Court granted judgment for the House and
the D. C. Circuit affirmed, finding that the subpoena issued by the
Oversight Committee served a valid legislative purpose because the
requested information was relevant to reforming financial disclosure
requirements for Presidents and presidential candidates. In Deutsche
Bank, the District Court denied a preliminary injunction and the Sec-
ond Circuit affirmed in substantial part, holding that the Intelligence
Committee properly issued its subpoena to Deutsche Bank as part of
an investigation into alleged foreign influence in the U. S. political pro-
cess, which could inform legislation to strengthen national security
and combat foreign meddling. The court also concluded that the sub-
poenas issued by the Financial Services Committee to Deutsche Bank
and Capital One were adequately related to potential legislation on
money laundering, terrorist financing, and the global movement of il-
licit funds through the real estate market.
Held: The courts below did not take adequate account of the significant
separation of powers concerns implicated by congressional subpoenas
for the President’s information. Pp. 7–20.
(a) Historically, disputes over congressional demands for presiden-
tial documents have been resolved by the political branches through
negotiation and compromise without involving this Court. The Court
recognizes that this dispute is the first of its kind to reach the Court;
that such disputes can raise important issues concerning relations be-
tween the branches; that similar disputes recur on a regular basis, in-
cluding in the context of deeply partisan controversy; and that Con-
gress and the Executive have nonetheless managed for over two
centuries to resolve these disputes among themselves without Su-
preme Court guidance. Such longstanding practice “ ‘is a consideration
of great weight’ ” in cases concerning “the allocation of power between
[the] two elected branches of Government,” and it imposes on the Court
a duty of care to ensure that it does not needlessly disturb “the com-
promises and working arrangements” reached by those branches.
NLRB v. Noel Canning, 573 U.S. 513, 524–526 (quoting The Pocket
Veto Case, 279 U.S. 655, 689). Pp. 7–11.
(b) Each House of Congress has the power “to secure needed infor-
mation” in order to legislate. McGrain v. Daugherty, 273 U.S. 135,
161. This power is “indispensable” because, without information, Con-
gress would be unable to legislate wisely or effectively. Watkins v.
United States, 354 U.S. 178, 215. Because this power is “justified
solely as an adjunct to the legislative process,” it is subject to several
limitations. Id., at 197. Most importantly, a congressional subpoena
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Syllabus
is valid only if it is “related to, and in furtherance of, a legitimate task
of the Congress.” Id., at 187. The subpoena must serve a “valid legis-
lative purpose.” Quinn v. United States, 349 U.S. 155, 161. Further-
more, Congress may not issue a subpoena for the purpose of “law en-
forcement,” because that power is assigned to the Executive and the
Judiciary. Ibid. Finally, recipients of congressional subpoenas retain
their constitutional rights and various privileges throughout the
course of an investigation. Pp. 11–12.
(c) The President contends, as does the Solicitor General on behalf
of the United States, that congressional subpoenas for the President’s
information should be evaluated under the standards set forth in
United States v. Nixon, 418 U.S. 683, and Senate Select Committee on
Presidential Campaign Activities v. Nixon, 498 F.2d 725, which would
require the House to show that the requested information satisfies a
“demonstrated, specific need,” 418 U.S., at 713, and is “demonstrably
critical” to a legislative purpose, 498 F.2d, at 731. Nixon and Senate
Select Committee, however, involved subpoenas for communications
between the President and his close advisers, over which the President
asserted executive privilege. Because executive privilege safeguards
the public interest in candid, confidential deliberations within the Ex-
ecutive Branch, information subject to the privilege deserves “the
greatest protection consistent with the fair administration of justice.”
418 U.S., at 715. That protection should not be transplanted root and
branch to cases involving nonprivileged, private information, which by
definition does not implicate sensitive Executive Branch deliberations.
The standards proposed by the President and the Solicitor General—
if applied outside the context of privileged information—would risk se-
riously impeding Congress in carrying out its responsibilities, giving
short shrift to its important interests in conducting inquiries to obtain
information needed to legislate effectively. Pp. 12–14.
(d) The approach proposed by the House, which relies on precedents
that did not involve the President’s papers, fails to take adequate ac-
count of the significant separation of powers issues raised by congres-
sional subpoenas for the President’s information. The House’s ap-
proach would leave essentially no limits on the congressional power to
subpoena the President’s personal records. A limitless subpoena
power could transform the established practice of the political
branches and allow Congress to aggrandize itself at the President’s ex-
pense. These separation of powers concerns are unmistakably impli-
cated by the subpoenas here, which represent not a run-of-the-mill leg-
islative effort but rather a clash between rival branches of government
over records of intense political interest for all involved. The inter-
branch conflict does not vanish simply because the subpoenas seek per-
sonal papers or because the President sued in his personal capacity.
4 TRUMP v. MAZARS USA, LLP
Syllabus
Nor are separation of powers concerns less palpable because the sub-
poenas were issued to third parties. Pp. 14–18.
(e) Neither side identifies an approach that adequately accounts for
these weighty separation of powers concerns. A balanced approach is
necessary, one that takes a “considerable impression” from “the prac-
tice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401,
and “resist[s]” the “pressure inherent within each of the separate
Branches to exceed the outer limits of its power,” INS v. Chadha, 462
U.S. 919, 951. In assessing whether a subpoena directed at the Pres-
ident’s personal information is “related to, and in furtherance of, a le-
gitimate task of the Congress,” Watkins, 354 U.S., at 187, courts must
take adequate account of the separation of powers principles at stake,
including both the significant legislative interests of Congress and the
unique position of the President.
Several special considerations inform this analysis. First, courts
should carefully assess whether the asserted legislative purpose war-
rants the significant step of involving the President and his papers.
“ ‘[O]ccasion[s] for constitutional confrontation between the two
branches’ should be avoided whenever possible.” Cheney v. United
States Dist. Court for D. C., 542 U.S. 367, 389–390 (quoting Nixon, 418
U.S., at 692). Congress may not rely on the President’s information if
other sources could reasonably provide Congress the information it
needs in light of its particular legislative objective. Second, to narrow
the scope of possible conflict between the branches, courts should insist
on a subpoena no broader than reasonably necessary to support Con-
gress’s legislative objective. The specificity of the subpoena’s request
“serves as an important safeguard against unnecessary intrusion into
the operation of the Office of the President.” Cheney, 542 U.S., at 387.
Third, courts should be attentive to the nature of the evidence offered
by Congress to establish that a subpoena advances a valid legislative
purpose. The more detailed and substantial, the better. That is par-
ticularly true when Congress contemplates legislation that raises sen-
sitive constitutional issues, such as legislation concerning the Presi-
dency. Fourth, courts should assess the burdens imposed on the
President by a subpoena, particularly because they stem from a rival
political branch that has an ongoing relationship with the President
and incentives to use subpoenas for institutional advantage. Other
considerations may be pertinent as well; one case every two centuries
does not afford enough experience for an exhaustive list. Pp. 18–20.
No. 19–715, 940 F.3d 710; No. 19–760, 943 F.3d 627, vacated and re-
manded.
ROBERTS, C. J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.
Cite as: 591 U. S. ____ (2020) 5
Syllabus
THOMAS, J., and ALITO, J., filed dissenting opinions.
Cite as: 591 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–715 and 19–760
_________________
DONALD J. TRUMP, ET AL., PETITIONERS
19–715 v.
MAZARS USA, LLP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DONALD J. TRUMP, ET AL., PETITIONERS
19–760 v.
DEUTSCHE BANK AG, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 9, 2020]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Over the course of five days in April 2019, three commit-
tees of the U. S. House of Representatives issued four sub-
poenas seeking information about the finances of President
Donald J. Trump, his children, and affiliated businesses.
We have held that the House has authority under the Con-
stitution to issue subpoenas to assist it in carrying out its
legislative responsibilities. The House asserts that the fi-
nancial information sought here—encompassing a decade’s
worth of transactions by the President and his family—will
help guide legislative reform in areas ranging from money
laundering and terrorism to foreign involvement in U. S.
2 TRUMP v. MAZARS USA, LLP
Opinion of the Court
elections. The President contends that the House lacked a
valid legislative aim and instead sought these records to
harass him, expose personal matters, and conduct law en-
forcement activities beyond its authority. The question pre-
sented is whether the subpoenas exceed the authority of the
House under the Constitution.
We have never addressed a congressional subpoena for
the President’s information. Two hundred years ago, it was
established that Presidents may be subpoenaed during a
federal criminal proceeding, United States v. Burr, 25 F.
Cas. 30 (No. 14,692d) (CC Va. 1807) (Marshall, Cir. J.), and
earlier today we extended that ruling to state criminal pro-
ceedings, Trump v. Vance, ante, p. ___. Nearly fifty years
ago, we held that a federal prosecutor could obtain infor-
mation from a President despite assertions of executive
privilege, United States v. Nixon, 418 U.S. 683 (1974), and
more recently we ruled that a private litigant could subject
a President to a damages suit and appropriate discovery ob-
ligations in federal court, Clinton v. Jones, 520 U.S. 681
(1997).
This case is different. Here the President’s information
is sought not by prosecutors or private parties in connection
with a particular judicial proceeding, but by committees of
Congress that have set forth broad legislative objectives.
Congress and the President—the two political branches es-
tablished by the Constitution—have an ongoing relation-
ship that the Framers intended to feature both rivalry and
reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed.
1961) (J. Madison); Youngstown Sheet & Tube Co. v. Saw-
yer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
That distinctive aspect necessarily informs our analysis of
the question before us.
I
A
Each of the three committees sought overlapping sets of
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Opinion of the Court
financial documents, but each supplied different justifica-
tions for the requests.
The House Committee on Financial Services issued two
subpoenas, both on April 11, 2019. App. 128, 154, 226. The
first, issued to Deutsche Bank, seeks the financial infor-
mation of the President, his children, their immediate fam-
ily members, and several affiliated business entities. Spe-
cifically, the subpoena seeks any document related to
account activity, due diligence, foreign transactions, busi-
ness statements, debt schedules, statements of net worth,
tax returns, and suspicious activity identified by Deutsche
Bank. The second, issued to Capital One, demands similar
financial information with respect to more than a dozen
business entities associated with the President. The
Deutsche Bank subpoena requests materials from “2010
through the present,” and the Capital One subpoena covers
“2016 through the present,” but both subpoenas impose no
time limitations for certain documents, such as those con-
nected to account openings and due diligence. Id., at 128,
155.
According to the House, the Financial Services Commit-
tee issued these subpoenas pursuant to House Resolution
206, which called for “efforts to close loopholes that allow
corruption, terrorism, and money laundering to infiltrate
our country’s financial system.” H. Res. 206, 116th Cong.,
1st Sess., 5 (Mar. 13, 2019). Such loopholes, the resolution
explained, had allowed “illicit money, including from Rus-
sian oligarchs,” to flow into the United States through
“anonymous shell companies” using investments such as
“luxury high-end real estate.” Id., at 3. The House also
invokes the oversight plan of the Financial Services Com-
mittee, which stated that the Committee intends to review
banking regulation and “examine the implementation, ef-
fectiveness, and enforcement” of laws designed to prevent
money laundering and the financing of terrorism.
4 TRUMP v. MAZARS USA, LLP
Opinion of the Court
H. R. Rep. No. 116–40, p. 84 (2019). The plan further pro-
vided that the Committee would “consider proposals to pre-
vent the abuse of the financial system” and “address any
vulnerabilities identified” in the real estate market. Id.,
at 85.
On the same day as the Financial Services Committee,
the Permanent Select Committee on Intelligence issued an
identical subpoena to Deutsche Bank—albeit for different
reasons. According to the House, the Intelligence Commit-
tee subpoenaed Deutsche Bank as part of an investigation
into foreign efforts to undermine the U. S. political process.
Committee Chairman Adam Schiff had described that in-
vestigation in a previous statement, explaining that the
Committee was examining alleged attempts by Russia to
influence the 2016 election; potential links between Russia
and the President’s campaign; and whether the President
and his associates had been compromised by foreign actors
or interests. Press Release, House Permanent Select Com-
mittee on Intelligence, Chairman Schiff Statement on
House Intelligence Committee Investigation (Feb. 6, 2019).
Chairman Schiff added that the Committee planned “to de-
velop legislation and policy reforms to ensure the U. S. gov-
ernment is better positioned to counter future efforts to un-
dermine our political process and national security.” Ibid.
Four days after the Financial Services and Intelligence
Committees, the House Committee on Oversight and Re-
form issued another subpoena, this time to the President’s
personal accounting firm, Mazars USA, LLP. The subpoena
demanded information related to the President and several
affiliated business entities from 2011 through 2018, includ-
ing statements of financial condition, independent auditors’
reports, financial reports, underlying source documents,
and communications between Mazars and the President or
his businesses. The subpoena also requested all engage-
ment agreements and contracts “[w]ithout regard to time.”
App. to Pet. for Cert. in 19–715, p. 230.
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Opinion of the Court
Chairman Elijah Cummings explained the basis for the
subpoena in a memorandum to the Oversight Committee.
According to the chairman, recent testimony by the Presi-
dent’s former personal attorney Michael Cohen, along with
several documents prepared by Mazars and supplied by Co-
hen, raised questions about whether the President had ac-
curately represented his financial affairs. Chairman Cum-
mings asserted that the Committee had “full authority to
investigate” whether the President: (1) “may have engaged
in illegal conduct before and during his tenure in office,”
(2) “has undisclosed conflicts of interest that may impair his
ability to make impartial policy decisions,” (3) “is complying
with the Emoluments Clauses of the Constitution,” and
(4) “has accurately reported his finances to the Office of
Government Ethics and other federal entities.” App. in No.
19–5142 (CADC), p. 107. “The Committee’s interest in
these matters,” Chairman Cummings concluded, “informs
its review of multiple laws and legislative proposals under
our jurisdiction.” Ibid.
B
Petitioners—the President in his personal capacity, along
with his children and affiliated businesses—filed two suits
challenging the subpoenas. They contested the subpoena
issued by the Oversight Committee in the District Court for
the District of Columbia (Mazars, No. 19–715), and the sub-
poenas issued by the Financial Services and Intelligence
Committees in the Southern District of New York (Deutsche
Bank, No. 19–760). In both cases, petitioners contended
that the subpoenas lacked a legitimate legislative purpose
and violated the separation of powers. The President did
not, however, resist the subpoenas by arguing that any of
the requested records were protected by executive privilege.
For relief, petitioners asked for declaratory judgments and
injunctions preventing Mazars and the banks from comply-
ing with the subpoenas. Although named as defendants,
6 TRUMP v. MAZARS USA, LLP
Opinion of the Court
Mazars and the banks took no positions on the legal issues
in these cases, and the House committees intervened to de-
fend the subpoenas.
Petitioners’ challenges failed. In Mazars, the District
Court granted judgment for the House, 380 F. Supp. 3d 76
(DC 2019), and the D. C. Circuit affirmed, 940 F.3d 710
(2019). In upholding the subpoena issued by the Oversight
Committee to Mazars, the Court of Appeals found that the
subpoena served a “valid legislative purpose” because the
requested information was relevant to reforming financial
disclosure requirements for Presidents and presidential
candidates. Id., at 726–742 (internal quotation marks omit-
ted). Judge Rao dissented. As she saw it, the “gravamen”
of the subpoena was investigating alleged illegal conduct by
the President, and the House must pursue such wrongdoing
through its impeachment powers, not its legislative powers.
Id., at 773–774. Otherwise, the House could become a “rov-
ing inquisition over a co-equal branch of government.” Id.,
at 748. The D. C. Circuit denied rehearing en banc over
several more dissents. 941 F.3d 1180, 1180–1182 (2019).
In Deutsche Bank, the District Court denied a prelimi-
nary injunction, 2019 WL 2204898 (SDNY, May 22, 2019),
and the Second Circuit affirmed “in substantial part,” 943
F.3d 627, 676 (2019). While acknowledging that the sub-
poenas are “surely broad in scope,” the Court of Appeals
held that the Intelligence Committee properly issued its
subpoena to Deutsche Bank as part of an investigation into
alleged foreign influence over petitioners and Russian in-
terference with the U. S. political process. Id., at 650, 658–
659. That investigation, the court concluded, could inform
legislation to combat foreign meddling and strengthen na-
tional security. Id., at 658–659, and n. 59.
As to the subpoenas issued by the Financial Services
Committee to Deutsche Bank and Capital One, the Court of
Appeals concluded that they were adequately related to po-
tential legislation on money laundering, terrorist financing,
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Opinion of the Court
and the global movement of illicit funds through the real
estate market. Id., at 656–659. Rejecting the contention
that the subpoenas improperly targeted the President, the
court explained in part that the President’s financial deal-
ings with Deutsche Bank made it “appropriate” for the
House to use him as a “case study” to determine “whether
new legislation is needed.” Id., at 662–663, n. 67.1
Judge Livingston dissented, seeing 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 Presi-
dent, his family, and his business affairs.” Id., at 687.
We granted certiorari in both cases and stayed the judg-
ments below pending our decision. 589 U. S. ___ (2019).
II
A
The question presented is whether the subpoenas exceed
the authority of the House under the Constitution. Histor-
ically, disputes over congressional demands for presidential
documents have not ended up in court. Instead, they have
been hashed out in the “hurly-burly, the give-and-take of
the political process between the legislative and the execu-
tive.” Hearings on S. 2170 et al. before the Subcommittee
on Intergovernmental Relations of the Senate Committee
on Government Operations, 94th Cong., 1st Sess., 87 (1975)
(A. Scalia, Assistant Attorney General, Office of Legal
Counsel).
That practice began with George Washington and the
——————
1 The Court of Appeals directed a “limited” remand for the District
Court to consider whether it was necessary to disclose certain “sensitive
personal details” (such as documents reflecting medical services received
by employees of the Trump business entities) and a “few” documents that
might not relate to the committees’ legislative purposes. 943 F.3d 627,
667–668, 675 (2019). The Court of Appeals ordered that all other docu-
ments be “promptly transmitted” to the committees. Id., at 669.
8 TRUMP v. MAZARS USA, LLP
Opinion of the Court
early Congress. In 1792, a House committee requested Ex-
ecutive Branch documents pertaining to General St. Clair’s
campaign against the Indians in the Northwest Territory,
which had concluded in an utter rout of federal forces when
they were caught by surprise near the present-day border
between Ohio and Indiana. See T. Taylor, Grand Inquest:
The Story of Congressional Investigations 19–23 (1955).
Since this was the first such request from Congress, Presi-
dent Washington called a Cabinet meeting, wishing to take
care that his response “be rightly conducted” because it
could “become a precedent.” 1 Writings of Thomas Jeffer-
son 189 (P. Ford ed. 1892).
The meeting, attended by the likes of Alexander Hamil-
ton, Thomas Jefferson, Edmund Randolph, and Henry
Knox, ended with the Cabinet of “one mind”: The House
had authority to “institute inquiries” and “call for papers”
but the President could “exercise a discretion” over disclo-
sures, “communicat[ing] such papers as the public good
would permit” and “refus[ing]” the rest. Id., at 189–190.
President Washington then dispatched Jefferson to speak
to individual congressmen and “bring them by persuasion
into the right channel.” Id., at 190. The discussions were
apparently fruitful, as the House later narrowed its request
and the documents were supplied without recourse to the
courts. See 3 Annals of Cong. 536 (1792); Taylor, supra,
at 24.
Jefferson, once he became President, followed Washing-
ton’s precedent. In early 1807, after Jefferson had disclosed
that “sundry persons” were conspiring to invade Spanish
territory in North America with a private army, 16 Annals
of Cong. 686–687, the House requested that the President
produce any information in his possession touching on the
conspiracy (except for information that would harm the
public interest), id., at 336, 345, 359. Jefferson chose not to
divulge the entire “voluminous” correspondence on the sub-
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Opinion of the Court
ject, explaining that much of it was “private” or mere “ru-
mors” and “neither safety nor justice” permitted him to “ex-
pos[e] names” apart from identifying the conspiracy’s “prin-
cipal actor”: Aaron Burr. Id., at 39–40. Instead of the entire
correspondence, Jefferson sent Congress particular docu-
ments and a special message summarizing the conspiracy.
Id., at 39–43; see generally Vance, ante, at 3–4. Neither
Congress nor the President asked the Judiciary to
intervene.2
Ever since, congressional demands for the President’s in-
formation have been resolved by the political branches
without involving this Court. The Reagan and Clinton
presidencies provide two modern examples:
During the Reagan administration, a House subcommit-
tee subpoenaed all documents related to the Department of
the Interior’s decision whether to designate Canada a recip-
rocal country for purposes of the Mineral Lands Leasing
Act. President Reagan directed that certain documents be
withheld because they implicated his confidential relation-
ship with subordinates. While withholding those docu-
ments, the administration made “repeated efforts” at ac-
commodation through limited disclosures and testimony
over a period of several months. 6 Op. of Office of Legal
Counsel 751, 780 (1982). Unsatisfied, the subcommittee
and its parent committee eventually voted to hold the Sec-
retary of the Interior in contempt, and an innovative com-
promise soon followed: All documents were made available,
but only for one day with no photocopying, minimal
notetaking, and no participation by non-Members of Con-
gress. Id., at 780–781; see H. R. Rep. No. 97–898, pp. 3–8
(1982).
——————
2 By contrast, later that summer, the Judiciary was called on to resolve
whether President Jefferson could be issued a subpoena duces tecum
arising from Burr’s criminal trial. See United States v. Burr, 25 F. Cas.
30 (No. 14,692d) (CC Va. 1807); see also Trump v. Vance, ante, at 5–7.
10 TRUMP v. MAZARS USA, LLP
Opinion of the Court
In 1995, a Senate committee subpoenaed notes taken by
a White House attorney at a meeting with President Clin-
ton’s personal lawyers concerning the Whitewater contro-
versy. The President resisted the subpoena on the ground
that the notes were protected by attorney-client privilege,
leading to “long and protracted” negotiations and a Senate
threat to seek judicial enforcement of the subpoena. S. Rep.
No. 104–204, pp. 16–17 (1996). Eventually the parties
reached an agreement, whereby President Clinton avoided
the threatened suit, agreed to turn over the notes, and ob-
tained the Senate’s concession that he had not waived any
privileges. Ibid.; see L. Fisher, Congressional Research
Service, Congressional Investigations: Subpoenas and Con-
tempt Power 16–18 (2003).
Congress and the President maintained this tradition of
negotiation and compromise—without the involvement of
this Court—until the present dispute. Indeed, from Presi-
dent Washington until now, we have never considered a dis-
pute over a congressional subpoena for the President’s rec-
ords. And, according to the parties, the appellate courts
have addressed such a subpoena only once, when a Senate
committee subpoenaed President Nixon during the Wa-
tergate scandal. See infra, at 13 (discussing Senate Select
Committee on Presidential Campaign Activities v. Nixon,
498 F.2d 725 (CADC 1974) (en banc)). In that case, the
court refused to enforce the subpoena, and the Senate did
not seek review by this Court.
This dispute therefore represents a significant departure
from historical practice. Although the parties agree that
this particular controversy is justiciable, we recognize that
it is the first of its kind to reach this Court; that disputes of
this sort can raise important issues concerning relations be-
tween the branches; that related disputes involving con-
gressional efforts to seek official Executive Branch infor-
mation recur on a regular basis, including in the context of
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Opinion of the Court
deeply partisan controversy; and that Congress and the Ex-
ecutive have nonetheless managed for over two centuries to
resolve such disputes among themselves without the bene-
fit of guidance from us. Such longstanding practice “ ‘is a
consideration of great weight’ ” in cases concerning “the al-
location of power between [the] two elected branches of Gov-
ernment,” and it imposes on us a duty of care to ensure that
we not needlessly disturb “the compromises and working
arrangements that [those] branches . . . themselves have
reached.” NLRB v. Noel Canning, 573 U.S. 513, 524–526
(2014) (quoting The Pocket Veto Case, 279 U.S. 655, 689
(1929)). With that in mind, we turn to the question
presented.
B
Congress has no enumerated constitutional power to con-
duct investigations or issue subpoenas, but we have held
that each House has power “to secure needed information”
in order to legislate. McGrain v. Daugherty, 273 U.S. 135,
161 (1927). This “power of inquiry—with process to enforce
it—is an essential and appropriate auxiliary to the legisla-
tive function.” Id., at 174. Without information, Congress
would be shooting in the dark, unable to legislate “wisely or
effectively.” Id., at 175. The congressional power to obtain
information is “broad” and “indispensable.” Watkins v.
United States, 354 U.S. 178, 187, 215 (1957). It encom-
passes inquiries into the administration of existing laws,
studies of proposed laws, and “surveys of defects in our so-
cial, economic or political system for the purpose of enabling
the Congress to remedy them.” Id., at 187.
Because this power is “justified solely as an adjunct to the
legislative process,” it is subject to several limitations. Id.,
at 197. Most importantly, a congressional subpoena is valid
only if it is “related to, and in furtherance of, a legitimate
task of the Congress.” Id., at 187. The subpoena must serve
a “valid legislative purpose,” Quinn v. United States, 349
12 TRUMP v. MAZARS USA, LLP
Opinion of the Court
U. S. 155, 161 (1955); it must “concern[ ] a subject on which
legislation ‘could be had,’ ” Eastland v. United States Ser-
vicemen’s Fund, 421 U.S. 491, 506 (1975) (quoting
McGrain, 273 U.S., at 177).
Furthermore, Congress may not issue a subpoena for the
purpose of “law enforcement,” because “those powers are as-
signed under our Constitution to the Executive and the Ju-
diciary.” Quinn, 349 U.S., at 161. Thus Congress may not
use subpoenas to “try” someone “before [a] committee for
any crime or wrongdoing.” McGrain, 273 U.S., at 179.
Congress has no “ ‘general’ power to inquire into private af-
fairs and compel disclosures,” id., at 173–174, and “there is
no congressional power to expose for the sake of exposure,”
Watkins, 354 U.S., at 200. “Investigations conducted solely
for the personal aggrandizement of the investigators or to
‘punish’ those investigated are indefensible.” Id., at 187.
Finally, recipients of legislative subpoenas retain their
constitutional rights throughout the course of an investiga-
tion. See id., at 188, 198. And recipients have long been
understood to retain common law and constitutional privi-
leges with respect to certain materials, such as attorney-
client communications and governmental communications
protected by executive privilege. See, e.g., Congressional
Research Service, supra, at 16–18 (attorney-client privi-
lege); Senate Select Committee, 498 F.2d, at 727, 730–731
(executive privilege).
C
The President contends, as does the Solicitor General ap-
pearing on behalf of the United States, that the usual rules
for congressional subpoenas do not govern here because the
President’s papers are at issue. They argue for a more de-
manding standard based in large part on cases involving
the Nixon tapes—recordings of conversations between
President Nixon and close advisers discussing the break-in
at the Democratic National Committee’s headquarters at
Cite as: 591 U. S. ____ (2020) 13
Opinion of the Court
the Watergate complex. The tapes were subpoenaed by a
Senate committee and the Special Prosecutor investigating
the break-in, prompting President Nixon to invoke execu-
tive privilege and leading to two cases addressing the show-
ing necessary to require the President to comply with the
subpoenas. See Nixon, 418 U.S. 683; Senate Select Com-
mittee, 498 F.2d 725.
Those cases, the President and the Solicitor General now
contend, establish the standard that should govern the
House subpoenas here. Quoting Nixon, the President as-
serts that the House must establish a “demonstrated, spe-
cific need” for the financial information, just as the Wa-
tergate special prosecutor was required to do in order to
obtain the tapes. 418 U.S., at 713. And drawing on Senate
Select Committee—the D. C. Circuit case refusing to enforce
the Senate subpoena for the tapes—the President and the
Solicitor General argue that the House must show that the
financial information is “demonstrably critical” to its legis-
lative purpose. 498 F.2d, at 731.
We disagree that these demanding standards apply here.
Unlike the cases before us, Nixon and Senate Select Com-
mittee involved Oval Office communications over which the
President asserted executive privilege. That privilege safe-
guards the public interest in candid, confidential delibera-
tions within the Executive Branch; it is “fundamental to the
operation of Government.” Nixon, 418 U.S., at 708. As a
result, information subject to executive privilege deserves
“the greatest protection consistent with the fair administra-
tion of justice.” Id., at 715. We decline to transplant that
protection root and branch to cases involving nonprivileged,
private information, which by definition does not implicate
sensitive Executive Branch deliberations.
The standards proposed by the President and the Solici-
tor General—if applied outside the context of privileged in-
formation—would risk seriously impeding Congress in car-
rying out its responsibilities. The President and the
14 TRUMP v. MAZARS USA, LLP
Opinion of the Court
Solicitor General would apply the same exacting standards
to all subpoenas for the President’s information, without
recognizing distinctions between privileged and nonprivi-
leged information, between official and personal infor-
mation, or between various legislative objectives. Such a
categorical approach would represent a significant depar-
ture from the longstanding way of doing business between
the branches, giving short shrift to Congress’s important in-
terests in conducting inquiries to obtain the information it
needs to legislate effectively. Confounding the legislature
in that effort would be contrary to the principle that:
“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. It is meant to be the eyes and
the voice, and to embody the wisdom and will of its con-
stituents. Unless Congress have and use every means
of acquainting itself with the acts and the disposition
of the administrative agents of the government, the
country must be helpless to learn how it is being
served.” United States v. Rumely, 345 U.S. 41, 43
(1953) (internal quotation marks omitted).
Legislative inquiries might involve the President in ap-
propriate cases; as noted, Congress’s responsibilities extend
to “every affair of government.” Ibid. (internal quotation
marks omitted). Because the President’s approach does not
take adequate account of these significant congressional in-
terests, we do not adopt it.
D
The House meanwhile would have us ignore that these
suits involve the President. Invoking our precedents con-
cerning investigations that did not target the President’s
papers, the House urges us to uphold its subpoenas because
they “relate[ ] to a valid legislative purpose” or “concern[ ] a
Cite as: 591 U. S. ____ (2020) 15
Opinion of the Court
subject on which legislation could be had.” Brief for Re-
spondent 46 (quoting Barenblatt v. United States, 360 U.S.
109, 127 (1959), and Eastland, 421 U.S., at 506). That ap-
proach is appropriate, the House argues, because the cases
before us are not “momentous separation-of-powers dis-
putes.” Brief for Respondent 1.
Largely following the House’s lead, the courts below
treated these cases much like any other, applying prece-
dents that do not involve the President’s papers. See 943
F.3d, at 656–670; 940 F. 3d, at 724–742. The Second Cir-
cuit concluded that “this case does not concern separation
of powers” because the House seeks personal documents
and the President sued in his personal capacity. 943 F.3d,
at 669. The D. C. Circuit, for its part, recognized that “sep-
aration-of-powers concerns still linger in the air,” and
therefore it did not afford deference to the House. 940 F.3d,
at 725–726. But, because the House sought only personal
documents, the court concluded that the case “present[ed]
no direct interbranch dispute.” Ibid.
The House’s approach fails to take adequate account of
the significant separation of powers issues raised by con-
gressional subpoenas for the President’s information. Con-
gress and the President have an ongoing institutional rela-
tionship as the “opposite and rival” political branches
established by the Constitution. The Federalist No. 51, at
349. As a result, congressional subpoenas directed at the
President differ markedly from congressional subpoenas we
have previously reviewed, e.g., Barenblatt, 360 U.S., at
127; Eastland, 421 U.S., at 506, and they bear little resem-
blance to criminal subpoenas issued to the President in the
course of a specific investigation, see Vance, ante, p. ___;
Nixon, 418 U.S. 683. Unlike those subpoenas, congres-
sional subpoenas for the President’s information unavoida-
bly pit the political branches against one another. Cf. In re
Sealed Case, 121 F.3d 729, 753 (CADC 1997) (“The Presi-
16 TRUMP v. MAZARS USA, LLP
Opinion of the Court
dent’s ability to withhold information from Congress impli-
cates different constitutional considerations than the Pres-
ident’s ability to withhold evidence in judicial proceed-
ings.”).
Far from accounting for separation of powers concerns,
the House’s approach aggravates them by leaving essen-
tially no limits on the congressional power to subpoena the
President’s personal records. Any personal paper possessed
by a President could potentially “relate to” a conceivable
subject of legislation, for Congress has broad legislative
powers that touch a vast number of subjects. Brief for Re-
spondent 46. The President’s financial records could relate
to economic reform, medical records to health reform, school
transcripts to education reform, and so on. Indeed, at ar-
gument, the House was unable to identify any type of infor-
mation that lacks some relation to potential legislation. See
Tr. of Oral Arg. 52–53, 62–65.
Without limits on its subpoena powers, Congress could
“exert an imperious controul” over the Executive Branch
and aggrandize itself at the President’s expense, just as the
Framers feared. The Federalist No. 71, at 484 (A. Hamil-
ton); see id., No. 48, at 332–333 (J. Madison); Bowsher v.
Synar, 478 U.S. 714, 721–722, 727 (1986). And a limitless
subpoena power would transform the “established practice”
of the political branches. Noel Canning, 573 U.S., at 524
(internal quotation marks omitted). Instead of negotiating
over information requests, Congress could simply walk
away from the bargaining table and compel compliance in
court.
The House and the courts below suggest that these sepa-
ration of powers concerns are not fully implicated by the
particular subpoenas here, but we disagree. We would have
to be “blind” not to see what “[a]ll others can see and under-
stand”: that the subpoenas do not represent a run-of-the-
mill legislative effort but rather a clash between rival
Cite as: 591 U. S. ____ (2020) 17
Opinion of the Court
branches of government over records of intense political in-
terest for all involved. Rumely, 345 U.S., at 44 (quoting
Child Labor Tax Case, 259 U.S. 20, 37 (1922) (Taft, C. J.)).
The interbranch conflict here does not vanish simply be-
cause the subpoenas seek personal papers or because the
President sued in his personal capacity. The President is
the only person who alone composes a branch of govern-
ment. As a result, there is not always a clear line between
his personal and official affairs. “The interest of the man”
is often “connected with the constitutional rights of the
place.” The Federalist No. 51, at 349. Given the close con-
nection between the Office of the President and its occu-
pant, congressional demands for the President’s papers can
implicate the relationship between the branches regardless
whether those papers are personal or official. Either way,
a demand may aim to harass the President or render him
“complaisan[t] to the humors of the Legislature.” Id., No.
71, at 483. In fact, a subpoena for personal papers may pose
a heightened risk of such impermissible purposes, precisely
because of the documents’ personal nature and their less
evident connection to a legislative task. No one can say that
the controversy here is less significant to the relationship
between the branches simply because it involves personal
papers. Quite the opposite. That appears to be what makes
the matter of such great consequence to the President and
Congress.
In addition, separation of powers concerns are no less pal-
pable here simply because the subpoenas were issued to
third parties. Congressional demands for the President’s
information present an interbranch conflict no matter
where the information is held—it is, after all, the Presi-
dent’s information. Were it otherwise, Congress could side-
step constitutional requirements any time a President’s in-
formation is entrusted to a third party—as occurs with
rapidly increasing frequency. Cf. Carpenter v. United
States, 585 U. S. ___, ___, ___ (2018) (slip op., at 15, 17).
18 TRUMP v. MAZARS USA, LLP
Opinion of the Court
Indeed, Congress could declare open season on the Presi-
dent’s information held by schools, archives, internet ser-
vice providers, e-mail clients, and financial institutions.
The Constitution does not tolerate such ready evasion; it
“deals with substance, not shadows.” Cummings v. Mis-
souri, 4 Wall. 277, 325 (1867).
E
Congressional subpoenas for the President’s personal in-
formation implicate weighty concerns regarding the sepa-
ration of powers. Neither side, however, identifies an ap-
proach that accounts for these concerns. For more than two
centuries, the political branches have resolved information
disputes using the wide variety of means that the Constitu-
tion puts at their disposal. The nature of such interactions
would be transformed by judicial enforcement of either of
the approaches suggested by the parties, eroding a “[d]eeply
embedded traditional way[ ] of conducting government.”
Youngstown Sheet & Tube Co., 343 U.S., at 610 (Frankfur-
ter, J., concurring).
A balanced approach is necessary, one that takes a “con-
siderable impression” from “the practice of the govern-
ment,” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819);
see Noel Canning, 573 U.S., at 524–526, and “resist[s]” the
“pressure inherent within each of the separate Branches to
exceed the outer limits of its power,” INS v. Chadha, 462
U.S. 919, 951 (1983). We therefore conclude that, in as-
sessing whether a subpoena directed at the President’s per-
sonal information is “related to, and in furtherance of, a le-
gitimate task of the Congress,” Watkins, 354 U.S., at 187,
courts must perform a careful analysis that takes adequate
account of the separation of powers principles at stake, in-
cluding both the significant legislative interests of Congress
and the “unique position” of the President, Clinton, 520
U.S., at 698 (internal quotation marks omitted). Several
special considerations inform this analysis.
Cite as: 591 U. S. ____ (2020) 19
Opinion of the Court
First, courts should carefully assess whether the asserted
legislative purpose warrants the significant step of involv-
ing the President and his papers. “ ‘[O]ccasion[s] for consti-
tutional confrontation between the two branches’ should be
avoided whenever possible.” Cheney v. United States Dist.
Court for D. C., 542 U.S. 367, 389–390 (2004) (quoting
Nixon, 418 U.S., at 692). Congress may not rely on the
President’s information if other sources could reasonably
provide Congress the information it needs in light of its par-
ticular legislative objective. The President’s unique consti-
tutional position means that Congress may not look to him
as a “case study” for general legislation. Cf. 943 F.3d, at
662–663, n. 67.
Unlike in criminal proceedings, where “[t]he very integ-
rity of the judicial system” would be undermined without
“full disclosure of all the facts,” Nixon, 418 U.S., at 709,
efforts to craft legislation involve predictive policy judg-
ments that are “not hamper[ed] . . . in quite the same way”
when every scrap of potentially relevant evidence is not
available, Cheney, 542 U.S., at 384; see Senate Select Com-
mittee, 498 F.2d, at 732. While we certainly recognize
Congress’s important interests in obtaining information
through appropriate inquiries, those interests are not suffi-
ciently powerful to justify access to the President’s personal
papers when other sources could provide Congress the in-
formation it needs.
Second, to narrow the scope of possible conflict between
the branches, courts should insist on a subpoena no broader
than reasonably necessary to support Congress’s legislative
objective. The specificity of the subpoena’s request “serves
as an important safeguard against unnecessary intrusion
into the operation of the Office of the President.” Cheney,
542 U.S., at 387.
Third, courts should be attentive to the nature of the ev-
idence offered by Congress to establish that a subpoena ad-
vances a valid legislative purpose. The more detailed and
20 TRUMP v. MAZARS USA, LLP
Opinion of the Court
substantial the evidence of Congress’s legislative purpose,
the better. See Watkins, 354 U.S., at 201, 205 (preferring
such evidence over “vague” and “loosely worded” evidence
of Congress’s purpose). That is particularly true when Con-
gress contemplates legislation that raises sensitive consti-
tutional issues, such as legislation concerning the Presi-
dency. In such cases, it is “impossible” to conclude that a
subpoena is designed to advance a valid legislative purpose
unless Congress adequately identifies its aims and explains
why the President’s information will advance its considera-
tion of the possible legislation. Id., at 205–206, 214–215.
Fourth, courts should be careful to assess the burdens im-
posed on the President by a subpoena. We have held that
burdens on the President’s time and attention stemming
from judicial process and litigation, without more, generally
do not cross constitutional lines. See Vance, ante, at 12–14;
Clinton, 520 U.S., at 704–705. But burdens imposed by a
congressional subpoena should be carefully scrutinized, for
they stem from a rival political branch that has an ongoing
relationship with the President and incentives to use sub-
poenas for institutional advantage.
Other considerations may be pertinent as well; one case
every two centuries does not afford enough experience for
an exhaustive list.
When Congress seeks information “needed for intelligent
legislative action,” it “unquestionably” remains “the duty of
all citizens to cooperate.” Watkins, 354 U.S., at 187 (em-
phasis added). Congressional subpoenas for information
from the President, however, implicate special concerns re-
garding the separation of powers. The courts below did not
take adequate account of those concerns. The judgments of
the Courts of Appeals for the D. C. Circuit and the Second
Circuit are vacated, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
Cite as: 591 U. S. ____ (2020) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–715 and 19–760
_________________
DONALD J. TRUMP, ET AL., PETITIONERS
19–715 v.
MAZARS USA, LLP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DONALD J. TRUMP, ET AL., PETITIONERS
19–760 v.
DEUTSCHE BANK AG, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 9, 2020]
JUSTICE THOMAS, dissenting.
Three Committees of the U. S. House of Representatives
issued subpoenas to several accounting and financial firms
to obtain the personal financial records of the President, his
family, and several of his business entities. The Commit-
tees do not argue that these subpoenas were issued pursu-
ant to the House’s impeachment power. Instead, they argue
that the subpoenas are a valid exercise of their legislative
powers.
Petitioners challenge the validity of these subpoenas. In
doing so, they call into question our precedents to the extent
that they allow Congress to issue legislative subpoenas for
the President’s private, nonofficial documents. I would hold
that Congress has no power to issue a legislative subpoena
for private, nonofficial documents—whether they belong to
the President or not. Congress may be able to obtain these
documents as part of an investigation of the President, but
2 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
to do so, it must proceed under the impeachment power.
Accordingly, I would reverse the judgments of the Courts of
Appeals.
I
I begin with the Committees’ claim that the House’s leg-
islative powers include the implied power to issue legisla-
tive subpoenas. Although the Founders understood that
the enumerated powers in the Constitution included im-
plied powers, the Committees’ test for the scope of those
powers is too broad.
“The powers of the legislature are defined, and limited;
and that those limits may not be mistaken, or forgotten, the
constitution is written.” Marbury v. Madison, 1 Cranch
137, 176 (1803). The structure of limited and enumerated
powers in our Constitution denotes that “[o]ur system of
government rests on one overriding principle: All power
stems from the consent of the people.” U. S. Term Limits,
Inc. v. Thornton, 514 U.S. 779, 846 (1995) (THOMAS, J., dis-
senting). As a result, Congress may exercise only those
powers given by the people of the States through the Con-
stitution.
The Founders nevertheless understood that an enumer-
ated power could necessarily bring with it implied powers.
The idea of implied powers usually arises in the context of
the Necessary and Proper Clause, which gives Congress the
power to “make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Gov-
ernment of the United States, or in any Department or Of-
ficer thereof.” Art. I, §8, cl. 18. As I have previously ex-
plained, the Necessary and Proper Clause simply “made
explicit what was already implicit in the grant of each enu-
merated power.” United States v. Comstock, 560 U.S. 126,
161 (2010) (dissenting opinion). That is, “the grant of a gen-
Cite as: 591 U. S. ____ (2020) 3
THOMAS, J., dissenting
eral power includes the grant of incidental powers for car-
rying it out.” Bray, “Necessary and Proper” and “Cruel and
Unusual”: Hendiadys in the Constitution, 102 Va. L. Rev.
687, 741 (2016).
The scope of these implied powers is very limited. The
Constitution does not sweep in powers “of inferior im-
portance, merely because they are inferior.” McCulloch v.
Maryland, 4 Wheat. 316, 408 (1819). Instead, Congress
“can claim no powers which are not granted to it by the con-
stitution, and the powers actually granted, must be such as
are expressly given, or given by necessary implication.”
Martin v. Hunter’s Lessee, 1 Wheat. 304, 326 (1816). In
sum, while the Committees’ theory of an implied power is
not categorically wrong, that power must be necessarily im-
plied from an enumerated power.
II
At the time of the founding, the power to subpoena pri-
vate, nonofficial documents was not included by necessary
implication in any of Congress’ legislative powers. This un-
derstanding persisted for decades and is consistent with the
Court’s first decision addressing legislative subpoenas, Kil-
bourn v. Thompson, 103 U.S. 168 (1881). The test that this
Court created in McGrain v. Daugherty, 273 U.S. 135
(1927), and the majority’s variation on that standard today,
are without support as applied to private, nonofficial docu-
ments.1
A
The Committees argue that Congress wields the same in-
vestigatory powers that the British Parliament did at the
time of the founding. But this claim overlooks one of the
fundamental differences between our Government and the
British Government: Parliament was supreme. Congress is
——————
1 I express no opinion about the constitutionality of legislative subpoe-
nas for other kinds of evidence.
4 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
not.
I have previously explained that “the founding genera-
tion did not subscribe to Blackstone’s view of parliamentary
supremacy.” Department of Transportation v. Association
of American Railroads, 575 U.S. 43, 74 (2015) (opinion con-
curring in judgment). “Parliament’s violations of the law of
the land had been a significant complaint of the American
Revolution.” Id., at 74–75. “And experiments in legislative
supremacy in the States had confirmed the idea that even
the legislature must be made subject to the law.” Id., at 75.
James Wilson, signer of the Constitution and future Jus-
tice, explained this difference to the Pennsylvania ratifying
convention: “Blackstone will tell you, that in Britain [the
supreme power] is lodged in the British Parliament; and I
believe there is no writer on the other side of the Atlantic”
who thought otherwise. 2 Documentary History of the Rat-
ification of the Constitution 471 (M. Jensen ed. 1976) (Doc-
umentary History). In the United States, however, “the su-
preme, absolute, and uncontrollable authority, remains
with the people.” Id., at 472. And “[t]he Constitution
plainly sets forth the ‘few and defined’ powers that Con-
gress may exercise.” Comstock, 560 U.S., at 159 (THOMAS,
J., dissenting); see also McCulloch, 4 Wheat., at 405; Mar-
bury, 1 Cranch, at 176. This significant difference means
that Parliament’s powers and Congress’ powers are not nec-
essarily the same.
In fact, the plain text of the Constitution makes clear that
they are not. The Constitution expressly denies to Congress
some of the powers that Parliament exercised. Article I, for
example, prohibits bills of attainder, §9, cl. 3, which Parlia-
ment used to “sentenc[e] to death one or more specific per-
sons.” United States v. Brown, 381 U.S. 437, 441 (1965). A
legislature can hardly be considered supreme if it lacks the
power to pass bills of attainder, which Justice Story called
the “highest power of sovereignty.” 3 Commentaries on the
Cite as: 591 U. S. ____ (2020) 5
THOMAS, J., dissenting
Constitution of the United States §1338, p. 210 (1833). Re-
latedly, the Constitution prohibits ex post facto laws, §9,
cl. 3, reinforcing the fact that Congress’ power to punish is
limited.2 And in a system in which Congress is not su-
preme, the individual protections in the Bill of Rights, such
as the prohibition on unreasonable searches and seizures,
meaningfully constrain Congress’ power to compel docu-
ments from private citizens. Cf. 1 St. George Tucker, Black-
stone’s Commentaries 203–205, n. § (1803); see also D. Cur-
rie, The Constitution in Congress: The Federalist Period,
1789–1801, p. 268 (1997).
Furthermore, Kilbourn—this Court’s first decision on the
constitutionality of legislative subpoenas—emphasized
that Parliament had more powers than Congress. There,
the congressional respondents relied on Parliament’s inves-
tigatory power to support a legislative subpoena for testi-
mony and documents. The Court rejected the analogy be-
cause the judicial powers of the House of Commons—the
lower house of Parliament—exceeded the judicial functions
of the House of Representatives. Kilbourn, supra, at 189.
At bottom, Kilbourn recognized that legislative supremacy
was decisively rejected in the framing and ratification of our
Constitution, which casts doubt on the Committees’ claim
that they have power to issue legislative subpoenas to pri-
vate parties.
B
The subpoenas in these cases also cannot be justified
based on the practices of 18th-century American legisla-
——————
2 The Constitution also enumerates a limited set of congressional priv-
ileges. Although I express no opinion on the question, at least one early
commentator thought the canon of expressio unius meant that Congress
had no unenumerated privileges, such as the power to hold nonmembers
in contempt. 1 St. George Tucker, Blackstone’s Commentaries 200, n. §
(1803).
6 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
tures. Amici supporting the Committees resist this conclu-
sion, but the examples they cite materially differ from the
legislative subpoenas at issue here.
First, amici cite investigations in which legislatures
sought to compel testimony from government officials on
government matters. The subjects included military af-
fairs, taxes, government finances, and the judiciary. Potts,
Power of Legislative Bodies To Punish for Contempt, 74
U. Pa. L. Rev. 691, 708, 709, 710, 716–717 (1926) (Potts);
see also E. Eberling, Congressional Investigations: A Study
of the Origin and Development of the Power of Congress To
Investigate and Punish for Contempt 18 (1928) (Eberling).
But the information sought in these examples was official,
not private. Underscoring this distinction, at least one rev-
olutionary-era State Constitution permitted the legislature
to “call for all public or official papers and records, and send
for persons, whom they may judge necessary in the course
of their inquiries, concerning affairs relating to the public
interest.” Md. Const., Art. X (1776) (emphasis added).
Second, 18th-century legislatures conducted nonlegisla-
tive investigations. For example, the New York colonial
legislature tasked one committee with investigating a nui-
sance complaint and gave it the “power to send for persons,
papers and records.” Eberling 18; see also id., at 19 (inves-
tigation of a government contract obtained by alleged
wrongdoing); Potts 716 (investigation of armed resistance).
But to describe this category is to distinguish it. Here, the
Committees assert only a legislative purpose.
Third, colonial and state legislatures investigated and
punished insults, libels, and bribery of members. For ex-
ample, the Pennsylvania colonial assembly investigated
“injurious charges, and slanderous Aspersions against the
Conduct of the late Assembly” made by two individuals. Id.,
at 710 (internal quotation marks omitted); see also id., at
717; Eberling 20–21. But once again, to describe this cate-
Cite as: 591 U. S. ____ (2020) 7
THOMAS, J., dissenting
gory is to distinguish it because the subpoenas here are jus-
tified only as incidental to the power to legislate, not the
power to punish libels or bribery. In short, none of the ex-
amples from 18th-century colonial and state history sup-
port a power to issue a legislative subpoena for private, non-
official documents.
C
Given that Congress has no exact precursor in England
or colonial America, founding-era congressional practice is
especially informative about the scope of implied legislative
powers. Thus, it is highly probative that no founding-era
Congress issued a subpoena for private, nonofficial docu-
ments. Although respondents could not identify the first
such legislative subpoena at oral argument, Tr. of Oral Arg.
56, Congress began issuing them by the end of the 1830s.
However, the practice remained controversial in Congress
and this Court throughout the first century of the Republic.
1
In an attempt to establish the power of Congress to issue
legislative subpoenas, the Committees point to an investi-
gation of Government affairs and an investigation under
one of Congress’ enumerated privileges. Both precedents
are materially different from the subpoenas here.
In 1792, the House authorized a Committee to investigate
a failed military expedition led by General Arthur St. Clair.
3 Hinds’ Precedents of the House of Representatives of the
United States §1725, pp. 79–80 (1907) (Hinds). The Com-
mittee was “empowered to call for such persons, papers and
records as may be necessary to assist their inquiries.” Ibid.
But the Committee never subpoenaed private, nonofficial
documents, which is telling. Whereas a subpoena for Gov-
ernment documents does not implicate concerns about
property rights or the Fourth Amendment “right of the peo-
ple to be secure in their persons, houses, papers, and effects,
8 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
against unreasonable searches and seizures,” a subpoena
for private, nonofficial documents raises those questions.
Thus, the power to subpoena private documents, which the
Committee did not exercise, is a far greater power and
much less likely to be implied in Congress’ legislative pow-
ers.
In 1832, the House investigated Representative Samuel
Houston for assaulting Representative William Stanberry.
Stanberry had accused Houston of collusion with Secretary
of War John Eaton in connection with a bid for a Govern-
ment contract, and the House initiated an investigation
into the truthfulness of Stanberry’s accusation. 8 Cong.
Deb. 2550, 3022–3023 (1832). The House subpoenaed wit-
nesses to testify, and one of them brought official corre-
spondence between the Secretary of War and the President.
H. R. Rep. No. 502, 22d Cong., 1st Sess. 64, 66–67 (1832).
But official documents are obviously different from nonoffi-
cial documents. Moreover, the subpoenas were issued pur-
suant to the House’s enumerated privilege of punishing its
own Members, Art. I, §5, not as part of its legislative pow-
ers. Because these subpoenas were not issued pursuant to
a legislative power, they do not aid the Committees’ case.
2
As late as 1827, a majority of the House declined to au-
thorize the Committee on Manufactures to subpoena docu-
ments, amid concerns that it was unprecedented. During
the debate over the resolution, one opponent remarked that
“[t]here is no instance under this Government, within my
recollection, where this power has been given for the mere
purpose of enabling a committee of this House to adjust the
details of an ordinary bill.” 4 Cong. Deb. 865–866 (Rep.
Strong); see also id., at 862 (referring to “authority to bring
any citizens of the United States . . . whom they might
choose to send for, and compel them to give answers to
every inquiry which should be addressed to them” as “very
Cite as: 591 U. S. ____ (2020) 9
THOMAS, J., dissenting
extraordinary”). Another opponent stated that the Com-
mittee had requested a power that had “not heretofore been
thought necessary to enable that Committee to acquire cor-
rect information.” Id., at 866 (Rep. Storrs). A third called
it “not only novel and extraordinary, but wholly unneces-
sary.” Id., at 874 (Rep. Stewart); see also id., at 884–885
(Rep. Wright). No supporter of the resolution offered a spe-
cific precedent for doing so, and the House ultimately au-
thorized the Committee to send for persons only. Id., at
889–890.
This debate is particularly significant because of the ar-
guments made by both sides. Proponents made essentially
the same arguments the Committees raise here—that the
power to send for persons and papers was necessary to in-
form Congress as it legislated. Id., at 871 (Rep. Livingston).
Opponents argued that this power was not part of any leg-
islative function. Id., at 865–866 (Rep. Strong). They also
argued that the House of Commons provided no precedent
because Congress was a body of limited and enumerated
powers. Id., at 882 (Rep. Wood). And in the end, the oppo-
nents prevailed. Thus, through 1827, the idea that Con-
gress had the implied power to issue subpoenas for private
documents was considered “novel,” “extraordinary,” and
“unnecessary.” Id., at 874.
3
By the end of the 1830s, Congress began issuing legisla-
tive subpoenas for private, nonofficial documents. See
Eberling 123–126. Still, the power to demand information
from private parties during legislative investigations re-
mained controversial.
In 1832, the House authorized a Committee to “inspect
the books, and to examine into the proceedings of the Bank
of the United States, to report thereon, and to report
whether the provisions of its charter have been violated or
10 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
not.” 8 Cong. Deb. 2160, 2164. The House gave the Com-
mittee “power to send for persons and papers.” Id., at 2160.
The power to inspect the books of the Bank of the United
States is not itself a clear example of a legislative subpoena
for private, nonofficial documents, because the Bank was a
federally chartered corporation and was required to allow
Congress to inspect its books. App. to 8 Cong. Deb. 54
(1833). The investigation itself appears to have ranged
more widely, however, leading Congressman John Quincy
Adams to criticize
“investigations which must necessarily implicate not
only the president and directors of the bank, and their
proceedings, but the rights, the interests, the fortunes,
and the reputation of individuals not responsible for
those proceedings, and whom neither the committee
nor the House had the power to try, or even accuse be-
fore any other tribunal.” Ibid.
Adams continued that such an investigation “bears all the
exceptionable and odious properties of general warrants
and domiciliary visits.” Ibid. He also objected that the
Committee’s investigation of the Bank was tantamount to
punishment and thus was in tension with the constitutional
prohibitions on “passing any bill of attainder [or] ex post
facto law.” Id., at 60. Thus, even when Congress author-
ized a Committee to send for private papers, the constitu-
tionality of doing so was questioned.
An 1859 Senate investigation, which the Court of Appeals
cited as precedent, underscores that legislative subpoenas
to private parties were a 19th-century innovation. Follow-
ing abolitionist John Brown’s raid at Harper’s Ferry, Sen-
ate Democrats opened an investigation apparently de-
signed to embarrass opponents of slavery. As part of the
investigation, they called private individuals to testify.
Senator Charles Sumner, a leading opponent of slavery,
railed against the proceedings:
Cite as: 591 U. S. ____ (2020) 11
THOMAS, J., dissenting
“I know it is said that this power is necessary in aid of
legislation. I deny the necessity. Convenient, at times,
it may be; but necessary, never. We do not drag the
members of the Cabinet or the President to testify be-
fore a committee in aid of legislation; but I say, without
hesitation, they can claim no immunity which does not
belong equally to the humblest citizen.” Cong. Globe,
36th Cong., 1st Sess., 3007 (1860).
Sumner also addressed the matter of Parliament’s powers,
calling them “more or less inapplicable” because “[w]e live
under a written Constitution, with certain specified powers;
and all these are restrained by the tenth amendment.”
Ibid. For Sumner, as for Adams, the power to issue legisla-
tive subpoenas to private parties was a “dangerous absurd-
ity” with no basis in the text or history of the Constitution.
Ibid.3
4
When this Court first addressed a legislative subpoena,
it refused to uphold it. After casting doubt on legislative
subpoenas generally, the Court in Kilbourn v. Thompson,
103 U.S. 168, held that the subpoena at issue was unlawful
because it sought to investigate private conduct.
In 1876, the House created a special Committee to inves-
tigate the failure of a major bank, which caused the loss of
federal funds and related to financial speculation in the
District of Columbia. Id., at 171. The Committee issued a
subpoena to Kilbourn, an employee of the bank. Id., at 172.
When he refused to answer questions or produce docu-
ments, the House held him in contempt and arrested him.
Id., at 173. After his release, he sued the Speaker, several
——————
3 I note as well that Sumner expressly distinguished legislative sub-
poenas from subpoenas issued during “those inquiries which are in their
nature preliminary to an impeachment.” Cong. Globe, 36th Cong., 1st
Sess., 3007 (1860).
12 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
Committee members, and the Sergeant at Arms for dam-
ages.
The Court discussed the arguments for an “impli[ed]”
power to issue legislative subpoenas. Id., at 183. As the
Court saw it, there were two arguments: “1, its exercise by
the House of Commons of England . . . and, 2d, the necessity
of such a power to enable the two Houses of Congress to
perform the duties and exercise the powers which the Con-
stitution has conferred on them.” Ibid.
The Court rejected the first argument. It found “no dif-
ference of opinion as to [the] origin” of the House of Com-
mons’ subpoena power:
“[T]he two Houses of Parliament were each courts of
judicature originally, which, though divested by usage,
and by statute, probably, of many of their judicial func-
tions, have yet retained so much of that power as ena-
bles them, like any other court, to punish for a con-
tempt of these privileges and authority that the power
rests.” Id., at 184.
Even after the division of Parliament into two houses, “[t]o
the Commons was left the power of impeachment, and, per-
haps, others of a judicial character, and jointly they exer-
cised, until a very recent period, the power of passing bills
of attainder for treason and other high crimes which are in
their nature punishment for crime declared judicially by
the High Court of Parliament.” Ibid. By contrast, the
House of Representatives “is in no sense a court, . . . exer-
cises no functions derived from its once having been a part
of the highest court of the realm,” and has no judicial func-
tions beyond “punishing its own members and determining
their election.” Id., at 189. The Court thus rejected the no-
tion that Congress inherited from Parliament an implied
power to issue legislative subpoenas.
The Court did not reach a conclusion on the second theory
Cite as: 591 U. S. ____ (2020) 13
THOMAS, J., dissenting
that a legislative subpoena power was necessary for Con-
gress to carry out its legislative duties. But it observed
that, based on British judicial opinions, not “much aid [is]
given to the doctrine, that this power exists as one neces-
sary to enable either House of Congress to exercise success-
fully their function of legislation.” Ibid. The Court referred
to a collection of 18th- and 19th-century English decisions
grounding the Parliamentary subpoena power in that
body’s judicial origins. Id., at 184–189 (citing Burdett v. Ab-
bott, 104 Eng. Rep. 501 (K. B. 1811); Brass Crosby’s Case,
95 Eng. Rep. 1005 (C. P. 1771); Stockdale v. Hansard, 112
Eng. Rep. 1112 (K. B. 1839); and Kielley v. Carson, 13 Eng.
Rep. 225 (P. C. 1841)). The Court placed particular empha-
sis on Kielley, in which the Privy Council held that the Leg-
islative Assembly of Newfoundland lacked a power to pun-
ish for contempt. The Privy Council expressly stated that
the House of Commons could punish for contempt
“ ‘not because it is a representative body with legisla-
tive functions, but by virtue of ancient usage and pre-
scription . . . which forms a part of the common law of
the land, and according to which the High Court of Par-
liament before its division, and the Houses of Lords and
Commons since, are invested with many privileges,
that of punishment for contempt being one.’ ” Kilbourn,
103 U.S., at 188–189.
This Court also noted that the Privy Council “discusse[d] at
length the necessity of this power in a legislative body for
its protection, and to enable it to discharge its law-making
functions, and decide[d] against the proposition.” Id., at
189. Although the Court did not have occasion to decide
whether the legislative subpoena in that case was neces-
sary to the exercise of Congress’ legislative powers, its dis-
14 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
cussion strongly suggests the subpoena was unconstitu-
tional.4
The Court instead based its decision on the fact that the
subpoena at issue “ma[de] inquiry into the private affairs of
the citizen.” Id., at 190. Such a power, the Court reasoned,
“is judicial and not legislative,” id., at 193, and “no judicial
power is vested in the Congress or either branch of it, save
in the cases” of punishing Members, compelling Members’
attendance, judging elections and qualifications, and im-
peachment and trial, id., at 192–193. Notably, the Court
found no indication that the House “avowed to impeach the
secretary,” or else “the whole aspect of the case would have
been changed.” Id., at 193. Even though the Court decided
Kilbourn narrowly, it clearly entertained substantial
doubts about the constitutionality of legislative subpoenas
for private documents.
D
Nearly half a century later, in McGrain v. Daugherty, the
Court reached the question reserved in Kilbourn—whether
Congress has the power to issue legislative subpoenas. It
rejected Kilbourn’s reasoning and upheld the power to issue
legislative subpoenas as long as they were relevant to a leg-
islative power. Although McGrain involved oral testimony,
the Court has since extended this test to subpoenas for pri-
vate documents. The Committees rely on McGrain, but this
line of cases misunderstands both the original meaning of
Article I and the historical practice underlying it.
——————
4 According to Justice Miller’s private letters, “a majority of the Court,
including Miller himself, were of the opinion that neither House nor Sen-
ate had power to punish for contempt witnesses who refused to testify
before investigating committees.” T. Taylor, Grand Inquest: The Story
of Congressional Investigations 49 (1955). Only Justice Miller’s desire
to “ ‘decid[e] no more than is necessary’ ” caused the Court to avoid the
broader question. Ibid.
Cite as: 591 U. S. ____ (2020) 15
THOMAS, J., dissenting
1
Shortly before Attorney General Harry Daugherty re-
signed in 1924, the Senate opened an investigation into his
“ ‘alleged failure’ ” to prosecute monopolists, the protago-
nists of the Teapot Dome scandal, and “ ‘many others.’ ”
McGrain, 273 U.S., at 151. The investigating Committee
issued subpoenas to Daugherty’s brother, Mally, who re-
fused to comply and was arrested in Ohio for failure to tes-
tify. Id., at 152–154. Mally petitioned for a writ of habeas
corpus, and the District Court discharged him, based
largely on Kilbourn. Ex parte Daugherty, 299 F. 620 (SD
Ohio 1924). The Deputy Sergeant at Arms who arrested
Mally directly appealed to this Court, which reversed.
The Court concluded that, “[i]n actual legislative prac-
tice[,] power to secure needed information by [investigating
and compelling testimony] has long been treated as an at-
tribute of the power to legislate.” McGrain, 273 U.S., at
161. The Court specifically found that “[i]t was so regarded
in the British Parliament and in the Colonial legislatures
before the American Revolution” and that “a like view has
prevailed and been carried into effect in both houses of Con-
gress and in most of the state legislatures.” Ibid. But the
authority cited by the Court did not support that proposi-
tion. The Court cited the 1792 investigation of St. Clair’s
defeat, in which it appears no subpoena was issued, supra,
at 7–8, and the 1859 Senate investigation of John Brown’s
raid on Harper’s Ferry, which led to an impassioned debate.
273 U.S., at 162–164. Thus, for the reasons explained
above, the examples relied on in McGrain are materially
different from issuing a legislative subpoena for private,
nonofficial documents. See supra, at 7, 10–11.5
——————
5 The Court also cited decisions between 1858 and 1913 from state
courts and a Canadian court, none of which are persuasive evidence
about the original meaning of the U. S. Constitution. McGrain, 273
U.S., at 165–167.
16 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
The Court acknowledged Kilbourn, but erroneously dis-
tinguished its discussion regarding the constitutionality of
legislative subpoenas as immaterial dicta. McGrain, supra,
at 170–171 (quoting Kilbourn, supra, at 189). The Court
concluded that “the two houses of Congress, in their sepa-
rate relations, possess not only such powers as are ex-
pressly granted to them by the Constitution, but such aux-
iliary powers as are necessary and appropriate to make the
express powers effective.” McGrain, supra, at 173.
Instead of relying on Kilbourn’s analysis, McGrain devel-
oped a test that rested heavily on functional considerations.
The Court wrote that “[a] legislative body cannot legislate
wisely or effectively in the absence of information respect-
ing the conditions which the legislation is intended to affect
or change.” 273 U.S., at 175. Because “mere requests for
such information often are unavailing, and also that infor-
mation which is volunteered is not always accurate or com-
plete,” “some means of compulsion are essential to obtain
what is needed.” Ibid.
The Court thus concluded that Congress could issue leg-
islative subpoenas, provided that “the purpose for which the
witness’s testimony was sought was to obtain information
in aid of the legislative function.” Id., at 176. The Court
has since applied this test to subpoenas for papers without
any further analysis of the text or history of the Constitu-
tion. See Eastland v. United States Servicemen’s Fund, 421
U.S. 491, 504–505 (1975). The majority today modifies
that test for cases involving the President, but it leaves the
core of the power untouched. Ante, at 18–20.
2
The opinion in McGrain lacks any foundation in text or
history with respect to subpoenas for private, nonofficial
documents. It fails to recognize that Congress, unlike Par-
liament, is not supreme. It does not cite any specific prece-
Cite as: 591 U. S. ____ (2020) 17
THOMAS, J., dissenting
dent for issuing legislative subpoenas for private docu-
ments from 18th-century colonial or state practice. And it
identifies no founding-era legislative subpoenas for private
documents.6
Since McGrain, the Court has pared back Congress’ au-
thority to compel testimony and documents. It has held
that certain convictions of witnesses for contempt of Con-
gress violated the Fifth Amendment. See Watkins v. United
States, 354 U.S. 178 (1957) (Due Process Clause); Quinn v.
United States, 349 U.S. 155 (1955) (Self-Incrimination
Clause); see also Barenblatt v. United States, 360 U.S. 109,
153–154 (1959) (Black, J., dissenting). It has also affirmed
the reversal of a conviction on the ground that the Commit-
tee lacked authority to issue the subpoena. See United
States v. Rumely, 345 U.S. 41 (1953). And today, it creates
a new four-part, nonexhaustive test for cases involving the
President. Ante, at 18–20. Rather than continue our trend
of trying to compensate for McGrain, I would simply decline
to apply it in these cases because it is readily apparent that
the Committees have no constitutional authority to sub-
poena private, nonofficial documents.
III
If the Committees wish to investigate alleged wrongdoing
by the President and obtain documents from him, the Con-
stitution provides Congress with a special mechanism for
——————
6 The Court further observed that Congress has long exercised the
power to hold nonmembers in contempt for reasons other than failure to
comply with a legislative subpoena. McGrain, supra, at 168–169. The
earliest case it cited, Anderson v. Dunn, 6 Wheat. 204 (1821), relied on
arguments about Congress’ power of self-protection, id., at 226–227.
Members of Congress defending the use of contempt for these other pur-
poses made similar arguments about self-protection. 5 Annals of Cong.
181–182 (1795) (Rep. W. Smith); id., at 189 (Rep. I. Smith). But the fail-
ure to respond to a subpoena does not pose a fundamental threat to Con-
gress’ ability to exercise its powers.
18 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
doing so: impeachment.7
A
It is often acknowledged, “if only half-heartedly honored,”
that one of the motivating principles of our Constitution is
the separation of powers. Association of American Rail-
roads, 575 U.S., at 74 (THOMAS, J., concurring in judg-
ment). The Framers recognized that there are three forms
of governmental power: legislative, executive and judicial.
The Framers also created three branches: Congress, the
President, and the Judiciary. The three powers largely
align with the three branches. To a limited extent, how-
ever, the Constitution contains “a partial intermixture of
those departments for special purposes.” The Federalist
No. 66, p. 401 (C. Rossiter ed. 1961) (A. Hamilton). One of
those special purposes is the system of checks and balances,
and impeachment is one of those checks.
The Constitution grants the House “the sole Power of Im-
peachment,” Art. I, §2, cl. 5, and it specifies that the Presi-
dent may be impeached for “Treason, Bribery, or other high
Crimes and Misdemeanors,” Art. II, §4. The founding gen-
eration understood impeachment as a check on Presidential
abuses. In response to charges that impeachment “con-
founds legislative and judiciary authorities in the same
body,” Alexander Hamilton called it “an essential check in
the hands of [Congress] upon the encroachments of the ex-
ecutive.” The Federalist No. 66, at 401–402. And, in the
Virginia ratifying convention, James Madison identified
impeachment as a check on Presidential abuse of the treaty
power. 10 Documentary History 1397.
B
The power to impeach includes a power to investigate and
——————
7 I express no view on whether there are any limitations on the im-
peachment power that would prevent the House from subpoenaing the
documents at issue.
Cite as: 591 U. S. ____ (2020) 19
THOMAS, J., dissenting
demand documents. Impeachments in the States often in-
volved an investigation. In 1781, the Virginia Legislature
began what Edmund Randolph called an “impeachment” of
then-Governor Thomas Jefferson. P. Hoffer & N. Hull, Im-
peachment in America, 1635–1805, p. 85 (1984). This “most
publicized and far-reaching impeachment inquiry for in-
competence” included an “ ‘inquir[y] into the conduct of the
executive of this state for the last two months.’ ” Ibid. The
legislatures of New Jersey, id., at 92, and Pennsylvania, id.,
at 93–95, similarly investigated officials through impeach-
ment proceedings.
Reinforcing this understanding, the founding generation
repeatedly referred to impeachment as an “inquest.” See 4
Debates on the Constitution 44 (J. Elliot ed. 1854) (speech
of A. Maclaine) (referring to the House as “the grand in-
quest of the Union at large”); The Federalist No. 65, at 397
(Hamilton) (referring to the House as “a method of
NATIONAL INQUEST”); 2 Records of the Federal Convention
154 (M. Farrand ed. 1911) (record from the Committee of
Detail stating that “[t]he House of Representatives shall be
the grand Inquest of this Nation; and all Impeachments
shall be made by them”); see also Mass. Const., ch. 1, §3,
Art. VI (1780) (referring to the Massachusetts House of
Representatives as “the Grand Inquest of this Common-
wealth”). At the time, an “inquest” referred to an “[i]nquiry,
especially that made by a Jury” or “the Jury itself.” N. Bai-
ley, Universal Etymological Dictionary (22d ed. 1770).
The Founders were also aware of the contemporaneous
impeachment of Warren Hastings in England, in which the
House of Commons heard witnesses before voting to im-
peach. P. Marshall, The Impeachment of Warren Hastings
40–41, 58 (1965). In the first impeachment under the new
Constitution, Congressmen cited the Hastings impeach-
ment as precedent for several points, including the power
to take testimony before impeaching. 7 Annals of Cong. 456
(1797) (Rep. Rutledge); id., at 459 (Rep. Sitgreaves); id., at
20 TRUMP v. MAZARS USA, LLP
THOMAS, J., dissenting
460 (Rep. Gallatin).
Other evidence from the 1790s confirms that the power
to investigate includes the power to demand documents.
When the House of Representatives sought documents re-
lated to the Jay Treaty from President George Washington,
he refused to provide them on the ground that the House
had no legislative powers relating to the ratification of trea-
ties. 5 Annals of Cong. 760–762 (1796). But he carefully
noted that “[i]t does not occur that the inspection of the pa-
pers asked for can be relative to any purpose under the cog-
nizance of the House of Representatives, except that of an
impeachment; which the resolution has not expressed.” Id.,
at 760. In other words, he understood that the House can
demand documents as part of its power to impeach.
This Court has also long recognized the power of the
House to demand documents. Even as it questioned the
power to issue legislative subpoenas, the Court in Kilbourn
acknowledged the ability to “compel the attendance of wit-
nesses, and their answer to proper questions” when “the
question of . . . impeachment is before either body acting in
its appropriate sphere on that subject.” 103 U.S., at 190.
I express no view today on the boundaries of the power to
demand documents in connection with impeachment pro-
ceedings. But the power of impeachment provides the
House with authority to investigate and hold accountable
Presidents who commit high crimes or misdemeanors. That
is the proper path by which the Committees should pursue
their demands.
IV
For nearly two centuries, until the 1970s, Congress never
attempted to subpoena documents to investigate wrongdo-
ing by the President outside the context of impeachment.
Congress investigated Presidents without opening im-
peachment proceedings. See, e.g., 2 Hinds §1596, at 1043–
1045 (President James Buchanan). But it never issued a
Cite as: 591 U. S. ____ (2020) 21
THOMAS, J., dissenting
subpoena for private, nonofficial documents as part of those
non-impeachment inquiries. Perhaps most strikingly, one
proposed request for official documents from the President
was amended after objection so that it “ ‘requested’ ” them
rather than “ ‘direct[ing]’ ” the President to provide them. 3
id., §1895, at 193.
Insisting that the House proceed through its impeach-
ment power is not a mere formality. Unlike contempt,
which is governed by the rules of each chamber, impeach-
ment and removal constitutionally requires a majority vote
by the House and a two-thirds vote by the Senate. Art. I,
§2, cl. 5; §3, cl. 6. In addition, Congress has long thought it
necessary to provide certain procedural safeguards to offi-
cials facing impeachment and removal. See, e.g., 3 Annals
of Cong. 903 (1793) (Rep. W. Smith). Finally, initiating im-
peachment proceedings signals to the public the gravity of
seeking the removal of a constitutional officer at the head
of a coordinate branch. 940 F.3d 710, 776 (CADC 2019)
(Rao, J., dissenting).
* * *
Congress’ legislative powers do not authorize it to engage
in a nationwide inquisition with whatever resources it
chooses to appropriate for itself. The majority’s solution—
a nonexhaustive four-factor test of uncertain origin—is bet-
ter than nothing. But the power that Congress seeks to ex-
ercise here has even less basis in the Constitution than the
majority supposes. I would reverse in full because the
power to subpoena private, nonofficial documents is not a
necessary implication of Congress’ legislative powers. If
Congress wishes to obtain these documents, it should pro-
ceed through the impeachment power. Accordingly, I re-
spectfully dissent.
Cite as: 591 U. S. ____ (2020) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–715 and 19–760
_________________
DONALD J. TRUMP, ET AL., PETITIONERS
19–715 v.
MAZARS USA, LLP, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
DONALD J. TRUMP, ET AL., PETITIONERS
19–760 v.
DEUTSCHE BANK AG, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[July 9, 2020]
JUSTICE ALITO, dissenting.
JUSTICE THOMAS makes a valuable argument about the
constitutionality of congressional subpoenas for a Presi-
dent’s personal documents. In these cases, however, I
would assume for the sake of argument that such subpoe-
nas are not categorically barred. Nevertheless, legislative
subpoenas for a President’s personal documents are inher-
ently suspicious. Such documents are seldom of any special
value in considering potential legislation, and subpoenas
for such documents can easily be used for improper non-leg-
islative purposes. Accordingly, courts must be very sensi-
tive to separation of powers issues when they are asked to
approve the enforcement of such subpoenas.
In many cases, disputes about subpoenas for Presidential
documents are fought without judicial involvement. If Con-
gress attempts to obtain such documents by subpoenaing a
President directly, those two heavyweight institutions can
2 TRUMP v. MAZARS USA, LLP
ALITO, J., dissenting
use their considerable weapons to settle the matter. See
ante, at 10 (opinion of the Court) (“Congress and the Presi-
dent maintained this tradition of negotiation and compro-
mise—without the involvement of this Court—until the
present dispute”). But when Congress issues such a sub-
poena to a third party, Congress must surely appreciate
that the Judiciary may be pulled into the dispute, and Con-
gress should not expect that the courts will allow the sub-
poena to be enforced without seriously examining its legiti-
macy.
Whenever such a subpoena comes before a court, Con-
gress should be required to make more than a perfunctory
showing that it is seeking the documents for a legitimate
legislative purpose and not for the purpose of exposing sup-
posed Presidential wrongdoing. See ante, at 12. The House
can inquire about possible Presidential wrongdoing pursu-
ant to its impeachment power, see ante, at 17–21 (THOMAS,
J., dissenting), but the Committees do not defend these sub-
poenas as ancillary to that power.
Instead, they claim that the subpoenas were issued to
gather information that is relevant to legislative issues, but
there is disturbing evidence of an improper law enforce-
ment purpose. See 940 F.3d 710, 767–771 (CADC 2019)
(Rao, J., dissenting). In addition, the sheer volume of doc-
uments sought calls out for explanation. See 943 F.3d 627,
676–681 (CA2 2019) (Livingston, J., concurring in part and
dissenting in part).
The Court recognizes that the decisions below did not
give adequate consideration to separation of powers con-
cerns. Therefore, after setting out a non-exhaustive list of
considerations for the lower courts to take into account,
ante, at 18–20, the Court vacates the judgments of the
Courts of Appeals and sends the cases back for reconsider-
ation. I agree that the lower courts erred and that these
cases must be remanded, but I do not think that the consid-
Cite as: 591 U. S. ____ (2020) 3
ALITO, J., dissenting
erations outlined by the Court can be properly satisfied un-
less the House is required to show more than it has put for-
ward to date.
Specifically, the House should provide a description of the
type of legislation being considered, and while great speci-
ficity is not necessary, the description should be sufficient
to permit a court to assess whether the particular records
sought are of any special importance. The House should
also spell out its constitutional authority to enact the type
of legislation that it is contemplating, and it should justify
the scope of the subpoenas in relation to the articulated leg-
islative needs. In addition, it should explain why the sub-
poenaed information, as opposed to information available
from other sources, is needed. Unless the House is required
to make a showing along these lines, I would hold that en-
forcement of the subpoenas cannot be ordered. Because I
find the terms of the Court’s remand inadequate, I must re-
spectfully dissent.