Trump v. Mazars USA, LLP

• Decision Date: 08 July 2022
• Docket Number: 21-5176,C/w 21-5177
• Citation: 39 F.4th 774
• Parties: Donald J. TRUMP, et al., Appellants/Cross-Appellees v. MAZARS USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, Appellees/Cross-Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

39 F.4th 774

Donald J. TRUMP, et al., Appellants/Cross-Appellees

v.MAZARS USA, LLP and Committee on Oversight and Reform of the U.S. House of Representatives, Appellees/Cross-Appellants

No. 21-5176

C/w 21-5177

United States Court of Appeals, District of Columbia Circuit.

Argued December 13, 2021

Decided July 8, 2022

Cameron T. Norris argued the cause for appellants/cross-appellees. With him on the briefs was William S. Consovoy.

Douglas N. Letter, General Counsel, U.S. House of Representatives, argued the cause for appellee/cross-appellant Committee on Oversight and Reform of the U.S. House of Representatives. With him on the briefs were Todd B. Tatelman, Principal Deputy General Counsel, Eric R. Columbus, Special Litigation Counsel, and Stacie M. Fahsel, Associate General Counsel.

Elizabeth B. Wydra and Brianne J. Gorod were on the brief for amicus curiae Constitutional Accountability Center in support of appellee/cross-appellant.

Before: Srinivasan, Chief Judge, Rogers and Jackson^* , Circuit Judges.

Concurring opinion filed by Circuit Judge Rogers.

Srinivasan, Chief Judge:

In 2019, the House of Representatives’ Oversight Committee issued a subpoena to then-President Trump's personal accounting firm, Mazars USA, LLP. The subpoena sought an array of the President's personal financial records covering an eight-year period. President Trump then brought this lawsuit challenging the Committee's authority to subpoena his financial records. After our court upheld the subpoena, the Supreme Court took up the matter. Trump v. Mazars , ––– U.S. ––––, 140 S. Ct. 2019, 207 L.Ed.2d 951 (2020).

In the Supreme Court's view, our court had not adequately accounted for the weighty separation-of-powers concerns raised by a congressional subpoena for the President's personal information. The Supreme Court called for a "careful analysis" of the "separation of powers principles at stake," and enumerated "[s]everal special considerations" that should "inform th[e] analysis." Id. at 2035. The Court then remanded the case for an application of the framework it had set out.

Since the time of the Supreme Court's remand, there have been two developments that potentially affect the shape of our inquiry into the subpoena's validity. First, President Trump is no longer the sitting President. And second, the Committee's chairwoman has prepared a detailed explanation of the legislative purposes the subpoena serves and of how the subpoena satisfies the test laid out by the Supreme Court.

The parties unsurprisingly disagree about the significance of those developments. In the Committee's view, both developments bolster its case for the subpoena's validity. In President Trump's view, neither development should factor into the court's analysis.

We conclude that each party is half right. We agree with President Trump that the heightened separation-of-powers scrutiny prescribed by the Supreme Court continues to govern in the unique circumstances of this case even though he is no longer the sitting President. But we agree with the Committee that we can consider its detailed accounting of the legislative purposes its subpoena serves even though that explanation came after the subpoena's original issuance.

Proceeding on that understanding, we uphold the Committee's authority to subpoena certain of President Trump's financial records in furtherance of the Committee's enumerated legislative purposes. But we cannot sustain the breadth of the Committee's subpoena. Rather, in carrying out the Supreme Court's directive to "insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective," id. at 2036, we determine for the following reasons that the Committee's subpoena must be narrowed in a number of respects.

I.

A.

In March 2019, the Chairman of the House of Representatives’ Committee on Oversight and Reform, Representative Cummings, wrote to then-President Trump's personal accounting firm, Mazars USA, LLP, requesting a variety of financial information concerning the President and several of his businesses. Letter from Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Victor Wahba, Chairman and Chief Executive Officer, Mazars USA, LLP (Mar. 20, 2019). The requested material included accounting records, engagement letters, source documents, and associated communications. Mazars responded that it could not voluntarily disclose the requested information, citing federal and state regulations and professional codes of conduct protecting the confidentiality of client information. Letter from Jerry D. Bernstein, Partner, Blank Rome LLP, to Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform (Mar. 27, 2019).

In April 2019, Chairman Cummings sent a memorandum to Committee members notifying them of his intent to issue a subpoena to Mazars. Memorandum from Elijah E. Cummings, Chairman, House Comm. on Oversight & Reform, to Members of the Comm. on Oversight & Reform (Apr. 12, 2019) [Cummings Memorandum]. In explaining the need for the subpoena, Chairman Cummings cited testimony from President Trump's former attorney to the Committee that the President had altered the reported value of his assets in financial statements "depending on the purpose for which he intended to use the statements." Id. at 1. Chairman Cummings further stated that news reports had recently "raised additional concerns regarding the President's financial statements and representations." Id.

In a concluding paragraph, the memorandum listed four areas that the Committee had "authority to investigate": (i) "whether the President may have engaged in illegal conduct before and during his tenure in office"; (ii) "whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions"; (iii) "whether he is complying with the Emoluments Clauses of the Constitution"; and (iv) "whether he has accurately reported his finances to the Office of Government Ethics and other federal entities." Id. at 4. The Committee's interest in those matters, the memorandum observed, "informs its review of multiple laws and legislative proposals under [its] jurisdiction." Id. The memorandum did not discuss or identify any specific laws or legislative proposals.

On April 15, 2019, Chairman Cummings issued the subpoena to Mazars. Subpoena to Mazars USA, LLP (Apr. 15, 2019) [2019 Subpoena]. The subpoena requires production of a variety of financial information concerning President Trump and several of his business entities spanning an eight-year period, 2011–2018.

In particular, the subpoena seeks the following documents: statements of financial condition, annual statements, periodic financial reports, and independent auditors’ reports prepared, compiled, reviewed, or audited by Mazars or its predecessor. The subpoena also encompasses an array of materials associated with those core documents—i.e., all engagement agreements, source documents and records, memoranda, notes, and communications related to the preparation, compilation, or auditing of the core documents. The subpoena specifies that the information required to be disclosed pertains to "Donald J. Trump, Donald J. Trump Revocable Trust, the Trump Organization Inc., the Trump Organization LLC, the Trump Corporation, DJT Holdings LLC, the Trump Old Post Office LLC, the Trump Foundation, and any parent, subsidiary, affiliate, joint venture, predecessor, or successor of the foregoing." Id.

Just days before the Oversight Committee's subpoena to Mazars, the House Financial Services Committee and Permanent Select Committee on Intelligence issued three subpoenas to Deutsche Bank and Capital One. Mazars , 140 S. Ct. at 2027. Those subpoenas sought financial information relating to President Trump, his children and other family members, and a number of affiliated business entities. Id.

B.

On April 22, 2019, President Trump, together with the affiliated organizations and entities subject to the Oversight Committee's subpoena (whom we will refer to collectively as "President Trump"), brought an action challenging the subpoena in the United States District Court for the District Columbia. Trump v. Comm. on Oversight & Reform , 380 F. Supp. 3d 76, 88 (D.D.C. 2019). President Trump asked the court to declare the subpoena invalid and to issue an injunction quashing it. The district court declined to do so, instead upholding the subpoena and granting summary judgment to the Committee. Id. at 105.

President Trump appealed to our court. We affirmed the district court's grant of summary judgment to the Committee. Trump v. Mazars USA, LLP , 940 F.3d 710, 714 (D.C. Cir. 2019). We acknowledged that the Committee's subpoena raised separation-of-powers concerns, but we sustained the subpoena on the ground that it rested on a legitimate legislative purpose rather than an impermissible law-enforcement objective. Id. at 725–26.

President Trump also filed suit in the United States District Court for the Southern District of New York to challenge the subpoenas that had been issued by the House Financial Services and Intelligence Committees. Trump v. Deutsche Bank AG , No. 19-3826, 2019 WL 2204898, at *1 (S.D.N.Y. May 22, 2019). The district court in that case denied President Trump's request for a preliminary injunction barring compliance with the subpoenas, id. , and the Second Circuit affirmed "in substantial part," Trump v. Deutsche Bank AG , 943 F.3d 627, 676 (2d Cir. 2019).

The Supreme Court granted review in both cases and consolidated them to consider "whether the subpoenas exceed the authority of the House under the Constitution." Mazars , 140 S. Ct. at 2029. The Court did not give a definitive answer to that question. Instead, it prescribed the framework for assessing the subpoenas’ validity and remanded for application of the test it set out.

The Court explained that "a congressional subpoena is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress.’ " Id. at 2031 (quoti...