Donald Trump v. Mazars USA, LLP ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2021 Decided July 8, 2022
No. 21-5176
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
Consolidated with 21-5177
Appeals from the United States District Court
for the District of Columbia
(No. 1:19-cv-01136)
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.
2
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.
Opinion for the Court filed by Chief Judge SRINIVASAN.
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, 140 S. Ct. 2019 (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.
∗
Circuit Judge, now Justice, Jackson was a member of the panel
at the time the case was argued but did not participate in this opinion.
3
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.
4
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
5
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.
6
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
7
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 (quoting Watkins v. United
States, 354 U.S. 178, 187 (1957)). Congress thus “has power
‘to secure needed information’ in order to legislate,” id.(quoting McGrain v. Daugherty, 273 U.S. 135, 161 (1927)), a
power that “encompasses inquiries into the administration of
existing laws, studies of proposed laws, and ‘surveys of defects
in our social, economic or political system for the purpose of
enabling the Congress to remedy them,’” id. (quoting Watkins,
354 U.S. at 187). Consequently, “[w]hen Congress seeks
information ‘needed for intelligent legislative action,’ it
8
‘unquestionably’ remains ‘the duty of all citizens to
cooperate.’” Id. at 2036 (quoting Watkins, 354 U.S. at 187).
But “[c]ongressional subpoenas for information from the
President,” the Court explained, “implicate special concerns
regarding the separation of powers.” Id. That does not mean
that “the House must establish a ‘demonstrated, specific need’
for the financial information” it seeks in the subpoenas at issue,
or that it “must show that the financial information is
‘demonstrably critical’ to its legislative purpose.” Id. at 2032
(citations omitted). Those strict standards “would risk
seriously impeding Congress in carrying out its
responsibilities.” Id. at 2033. At the same time, though, it is
not enough for the House to show merely that the President’s
financial information “could potentially ‘relate to’ a
conceivable subject of legislation.” Id. at 2034. “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.”
Id. (citations omitted).
Accordingly, a “balanced approach is necessary,” one that
“takes adequate account” of “both the significant legislative
interests of Congress and the unique position of the President.”
Id. at 2035 (quotation marks omitted). The Court enumerated
four “special considerations” that should “inform [the]
analysis” of whether “a subpoena directed at the President’s
personal information is ‘related to, and in furtherance of, a
legitimate task of the Congress.’” Id. (quoting Watkins, 354
U.S. at 187).
First, “courts should carefully assess whether the asserted
legislative purpose warrants the significant step of involving
the President and his papers.” Id. Congress “may not rely on
the President’s information if other sources could reasonably
9
provide Congress the information it needs in light of its
particular legislative objective.” Id. at 2035–36. Second,
“courts should insist on a subpoena no broader than reasonably
necessary to support Congress’s legislative objective.” Id. at
2036. Third, Congress must “adequately identif[y] its aims and
explain[] why the President’s information will advance its
consideration of the possible legislation.” Id. Fourth, “courts
should be careful to assess the burdens imposed on the
President by a subpoena.” Id. And those considerations, the
Court observed, are not “an exhaustive list”—“[o]ther
considerations may be pertinent as well.” Id.
The Court remanded the cases before it “for further
proceedings consistent with [its] opinion.” Id.
C.
When the challenge to the Oversight Committee’s
subpoena to Mazars came back to our court after the Supreme
Court’s remand, we requested supplemental briefing from the
parties. Trump v. Mazars USA, LLP, 832 F. App’x 6, 7 (D.C.
Cir. 2020). As an attachment to its brief, the Committee
submitted a 58-page memorandum prepared by Chairman
Cummings’s successor, Chairwoman Carolyn Maloney, which
had been circulated to the Committee’s members in August
2020. Memorandum from Carolyn B. Maloney, Chairwoman,
House Comm. on Oversight & Reform, to Members of the
Comm. on Oversight & Reform (Aug. 26, 2020) [First
Maloney Memorandum], https://tinyurl.com/34by2cpe.
The First Maloney Memorandum set forth the
Committee’s need for the materials encompassed by the
Mazars subpoena in far greater detail than had any previous
communication. The memorandum described “the status of the
Committee’s investigations and potential legislative reforms
10
that would be advanced by the Mazars subpoena,” and sought
to “explain[] why the Committee’s subpoena satisfies the
Supreme Court’s new four-factor analysis for evaluating
Congress’s need for the President’s personal information.” Id.
at 1.
According to the Committee, President Trump’s “actions
have exposed glaring weaknesses in current ethics legislation
that threaten the accountability and transparency of our
government.” Id. at 3. And the Committee has “determined
that Mazars is in possession of documents and information
necessary to help the Committee define areas that require
remedial measures and undertake the necessary legislative
reforms.” Id. at 5.
The memorandum described the Committee’s
investigations as generally “aimed at defining, understanding,
and mitigating presidential conflicts of interest and self-dealing
and enabling the Committee to develop and pass necessary and
effective reforms in presidential ethics and related agency
oversight.” Id. The Committee categorized its ongoing
investigations in “three tracks relating to”: (i) “presidential
conflicts of interest and financial disclosures”;
(ii) “presidential contracts with the federal government and
potential self-dealing”; and (iii) “presidential adherence to the
Emoluments Clauses” of the Constitution. Id. at 4.
The first track, the “financial disclosures track,” involves
investigation of “President Trump’s federal financial
disclosures to the Office of Government Ethics (OGE), in order
to pass legislation to ensure presidential financial disclosures
include sufficiently detailed information to assess potential
conflicts of interest, close loopholes in the financial disclosure
process, and strengthen OGE.” Id. at 4–5. The second track,
the “GSA lease track,” involves investigation of “President
11
Trump’s lease agreement with the General Services
Administration (GSA) for the Trump Old Post Office Hotel, in
order to pass legislation to ensure that GSA administers federal
contracts with the President in a fair and transparent manner,
prevent future presidents from engaging in and maintaining
self-dealing contracts with the U.S. government, and close
loopholes in government contracting.” Id. at 5. The third track,
the “emoluments track,” involves investigation of “President
Trump’s receipt of funds from foreign governments, federal
officials, or state officials through his business holdings,” with
an aim of “passing legislation to prohibit taxpayer funds from
flowing to the President’s businesses, strengthen disclosure
requirements to ensure compliance with the Emoluments
Clauses, enable Congress to identify noncompliance and
conflicts of interest involving foreign governments, and
consider other potential remedies for specific conflicts of
interest as they are identified.” Id.
The First Maloney Memorandum set out in substantial
detail the basis for the Committee’s concerns under each of
those three investigative tracks, the legislative measures under
consideration, and the Committee’s justifications for seeking
the subpoenaed information under each of the four factors
enumerated by the Supreme Court. The memorandum closed
by noting the Committee’s intention to continue its
investigations into “the next Congress, regardless of who holds
the presidency, because the Committee’s goal is to prevent
problems raised by the circumstances of the current President
from being repeated.” Id. at 55. In view of the Committee’s
intent to reissue the subpoena at the beginning of the next
Congress (which was close at hand), and of the Committee’s
reliance on the First Maloney Memorandum (which had not
been considered before), we remanded the case to the district
court for further proceedings consistent with the Supreme
Court’s opinion. 832 F. App’x at 7.
12
Although the Committee responded to the Supreme
Court’s decision with a memorandum substantially elaborating
on its explanation of the legislative need for the Mazars
subpoena, the Committee did not reduce the range of
documents encompassed by the subpoena. The two other
House Committees whose subpoenas were also before the
Supreme Court, by contrast, significantly narrowed the scope
of their requests for President Trump’s financial information in
the wake of the Court’s decision. The Financial Services
Committee withdrew its subpoena to Capital One altogether
and indicated its intention to narrow its subpoena to Deutsche
Bank to reach “only records that do not constitute the
President’s information.” Letter from Douglas N. Letter,
General Counsel, U.S. House of Representatives, at 2, Trump
v. Deutsche Bank AG, No. 19-1540 (2d Cir. Aug. 26, 2020).
The Intelligence Committee limited its own subpoena to
Deutsche Bank to reach only the records of key account
holders; reduced the subpoena’s date range; and confined most
of the subpoenaed documents to ones related to “any financial
relationships, transactions, or ties between any of the Covered
Parties and any foreign individual, entity, or government.” See
Memorandum from Adam B. Schiff, Chairman, House
Permanent Select Comm. on Intel., to Members of the
Permanent Select Comm. on Intel. 11–12 (Aug. 25, 2020),
https://perma.cc/JR8G-ZHY4 [Schiff Memorandum].
D.
On January 3, 2021, shortly after this case returned to the
district court for application of the Supreme Court’s framework
to the Mazars subpoena, the 117th Congress commenced. On
February 23, 2021, Chairwoman Maloney circulated a
memorandum notifying Committee members of her intent to
reissue the Mazars subpoena. Memorandum from Carolyn B.
Maloney, Chairwoman, House Comm. on Oversight &
13
Reform, to Members of the Comm. on Oversight & Reform
(Feb. 23, 2021) [Second Maloney Memorandum]. By that
time, President Trump was no longer the sitting President.
In setting forth the basis for reissuance of the Mazars
subpoena, the Second Maloney Memorandum explained that
the Committee would continue its inquiries across the three
investigative tracks in the new Congress. Id. at 3. The
memorandum stated that “Donald Trump’s unprecedented
actions as President” had “laid bare several apparent
weaknesses and gaps in the laws and regulations governing
presidential financial disclosure, conflicts of interest, and
emoluments.” Id. “The subpoenaed information from
Mazars,” the memorandum observed, would “allow the
Committee and Congress to more fully identify the areas that
need reform and craft appropriate legislation in response.” Id.
The memorandum also incorporated and attached the First
Maloney Memorandum. Id. at 4. On February 25, 2021, two
days after circulation of the Second Maloney Memorandum,
the Committee reissued the Mazars subpoena without
alteration. Subpoena to Mazars USA, LLP (Feb. 25, 2021)
[2021 Subpoena].
President Trump and the Committee later filed cross-
motions for summary judgment in the district court
proceedings. The district court granted in part and denied in
part each party’s motion. Trump v. Mazars USA LLP, 560 F.
Supp. 3d 47, 51 (D.D.C. 2021). The court first held that it
would consider the First Maloney Memorandum even though
it had been prepared after the original issuance of the subpoena.
Id. at 59–60. The court then rejected the Committee’s
argument that, because President Trump was no longer the
sitting President, the separation-of-powers concerns
undergirding the Supreme Court’s framework in its Mazars
opinion were no longer applicable. Id. at 64–65. But the court
14
set out to apply “the Mazars factors cognizant of the fact that
this case now involves a subpoena directed at a former
President,” which, to the court, called for application of a
measure of reduced scrutiny. Id. at 65–66.
The court then carefully applied that framework to each of
the three investigative tracks relied on by the Committee. The
court’s thoughtful analysis led it to hold that the financial
disclosures track could not justify any portion of the subpoena;
that the GSA lease track could justify the subpoena but only as
to those documents belonging to President Trump himself,
Trump Old Post Office LLC, and the Trump Organization
(which the court viewed to be the only parties associated with
the GSA lease of the Old Post Office site for the Trump
International Hotel); and that the emoluments track could
support the subpoena for all requested documents but only for
the requested years during which President Trump was in
office, 2017–2018. Id. at 66–81.
II.
President Trump and the Committee both appeal from the
district court’s decision. Whereas the district court upheld the
Committee’s subpoena while narrowing its reach to encompass
certain parties and certain years, President Trump and the
Committee press competing all-or-nothing positions in our
court: President Trump contends that the subpoena should be
invalidated in its entirety, and the Committee submits that the
subpoena should be sustained in full.
We review the district court’s summary-judgment decision
de novo. Atlas Air, Inc. v. Air Line Pilots Ass’n, 232 F.3d 218,
222 (D.C. Cir. 2000). We uphold the Committee’s authority to
subpoena President Trump’s financial information, but we
15
narrow the scope of the Committee’s subpoena somewhat more
than did the district court.
A.
We begin by addressing our jurisdiction. Because Article
III of the Constitution grants federal courts power to resolve
“actual, ongoing controversies,” we lose jurisdiction if a
pending case becomes moot. Planned Parenthood of Wis.,
Inc. v. Azar, 942 F.3d 512, 516 (D.C. Cir. 2019). And a case is
moot if intervening events mean that the court’s “decision will
neither presently affect the parties’ rights nor have a more-
than-speculative chance of affecting them in the future.”
Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990)
(citation omitted).
Generally, the “initial ‘heavy burden’ of establishing
mootness lies with the party asserting a case is moot.”
Honeywell Int’l, Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568,
576 (D.C. Cir. 2010) (citation omitted). Neither the Committee
nor President Trump suggests on appeal that this case is moot,
so neither, of course, has carried that heavy burden. But we
also “have an ‘independent obligation’ to ensure that appeals
before us are not moot.” Planned Parenthood of Wis., 942 F.3d
at 516 (citation omitted).
When this case was last before us, the 116th Congress was
about to end, and the Committee had expressed its intention to
reissue its subpoena to Mazars in the new Congress. In
remanding the case to the district court, we “express[ed] no
view as to whether this case will become moot when the
subpoena expires” at the end of the 116th Congress. 832
F. App’x at 7.
16
The case then returned to the district court, and the
Committee reissued the subpoena without modification.
President Trump did not amend his complaint to challenge the
reissued subpoena. In the parties’ summary-judgment briefing,
they agreed that President Trump’s challenge to the original
subpoena had not become moot. Both parties relied on a House
Rule permitting congressional committees to “act as the
successor in interest” to the committees of a prior Congress in
order to “ensure continuation of” litigation, including by
reissuing subpoenas. House Rule II.8(c); see Trump Mot. for
Summ. J. at 12, Mazars USA LLP, 560 F. Supp. 3d 47 (No. 19-
cv-01136), ECF No. 54; Comm. Cross-Mot. for Summ. J. at
20, Mazars USA LLP, 560 F. Supp. 3d 47 (No. 19-cv-01136),
ECF No. 55.
We agree with the parties that the current Committee’s
ability to act as a successor in interest keeps the dispute over
the original subpoena alive. The House Rule on which the
parties rely permits the current Committee to continue
litigation started during the prior Congress and explicitly
authorizes the Committee to reissue subpoenas as necessary to
extend the litigation. House Rule II.8(c); see also Comm. on
Judiciary v. Miers, 542 F.3d 909, 912 (D.C. Cir. 2008) (Tatel,
J., concurring); United States v. AT&T Co., 567 F.2d 121, 124
(D.C. Cir. 1977). The present Committee thus can act as the
successor to the prior Committee’s interest in enforcing the
original subpoena, saving the case from mootness
notwithstanding the expiration of the 116th Congress. The
Supreme Court has analogously held that a plaintiff’s death
does not moot a case when his estate as successor can recover
money that would have been owed to him. Consol. Rail
Corp. v. Darrone, 465 U.S. 624, 630 (1984); see Sinito v. U.S.
Dep’t of Just., 176 F.3d 512, 515–16 (D.C. Cir. 1999); see also
Fed. R. Civ. P. 25(d). And insofar as the original subpoena in
this case expired upon the adjournment of the 116th Congress,
17
see United States v. AT&T Co., 551 F.2d 384, 390 (D.C. Cir.
1976), the Committee reissued the same subpoena in the 117th
Congress as part of its effort to act as a “successor in interest”
to enable “continuation of” the litigation. House Rule II.8(c).
At any rate, even assuming the original subpoena expired
and that had the effect of mooting the challenge, we still would
retain jurisdiction because a mootness exception would govern.
A court can decide an otherwise-moot matter if the dispute is
capable of repetition yet evading review. That mootness
exception applies if “the challenged action was in its duration
too short to be fully litigated prior to its cessation or expiration”
and “there was a reasonable expectation that the same
complaining party would be subjected to the same action
again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
curiam). The potential for recurrence must be of the “precise
controversy” between the parties. Planned Parenthood of Wis.,
942 F.3d at 517 (citation omitted).
Those conditions exist here. Assuming the Committee’s
original subpoena expired upon adjournment of the 116th
Congress, that happened before the case could be fully
litigated. Many such disputes would be likely to evade review
given that subpoena litigation might well remain pending at the
end of a two-year session of Congress. And here, there is more
than just a reasonable expectation that the Committee would
reissue the same subpoena. It has already done so. Cf. Am.
Freedom Def. Initiative v. WMATA, 901 F.3d 356, 362 (D.C.
Cir. 2018). In fact, the Committee reissued the exact same
subpoena for the express purpose of preventing this case from
becoming moot. The “precise controversy” over the
Committee’s subpoena for Mr. Trump’s personal accounting
records thus is capable of repetition yet evading review.
Planned Parenthood of Wis., 942 F.3d at 517 (citation
omitted).
18
We have employed similar reasoning in analyzing whether
a challenge to a contempt order for failure to comply with a
grand jury subpoena becomes moot following expiration of the
issuing grand jury. In re Sealed Case, 877 F.2d 976, 981 n.6
(D.C. Cir. 1989). We explained that such challenges fall within
the “capable of repetition but evading review” exception to the
mootness doctrine. A “grand jury’s term and its investigations
are by their very nature of limited and relatively short
duration,” making it difficult to adjudicate contempt issues
before dissolution of the jury. Id. (quoting In re Grand Jury
Proceedings (Larson), 785 F.2d 629, 631 (8th Cir. 1986)); see
also In re Grand Jury Proceeding, 971 F.3d 40, 51, 53 (2d Cir.
2020). The same logic applies to congressional subpoenas. We
thus have jurisdiction to reach the merits of this appeal even if
the challenge to the original subpoena is moot.
B.
Having determined that we retain jurisdiction to consider
President Trump’s challenge to the Committee’s subpoena, we
next consider by which test we should assess whether the
subpoena “is related to, and in furtherance of, a legitimate task
of the Congress.” Mazars, 140 S. Ct. at 2035 (quotations
omitted). One might wonder why that is even a question—after
all, the Supreme Court already set out the framework that
should govern the inquiry in this case and directed us to apply
it on remand.
In the Committee’s view, though, the test prescribed by the
Supreme Court in this case should no longer govern our
analysis. That test, to the Committee, rested on the heightened
separation-of-powers concerns raised by a congressional
subpoena issued to a sitting President. But because President
Trump is now a former President, the Committee argues, a
more relaxed standard should control. The Committee thus
19
urges us to set aside the four-factor inquiry set forth by the
Supreme Court in this case and instead weigh “the
Committee’s need for the subpoenaed materials for its
legislative purposes against the limited intrusion on the
Presidency when Congress seeks a former President’s
information.” House Br. 62. The Committee derives that
standard from Nixon v. Administrator of General Services, 433
U.S. 425 (1977), which rejected a former President’s challenge
to a statute enabling the General Services Administration to
take custody of his presidential records. Id. at 430.
We do not accept the Committee’s invitation to abandon
the Supreme Court’s Mazars test in the Mazars case itself.
Whatever may be the appropriate standard when Congress
issues a subpoena to a former President, the subpoena in this
case, when issued, sought a sitting President’s information.
President Trump then brought this challenge while still in
office; that same challenge remains pending; and the subpoena
remains unchanged in all respects. At least in these specific
circumstances, we do not understand that the Mazars test
instantly ceased to apply—and a different standard
immediately took hold—on the day President Trump left
office. The ongoing litigation otherwise remained the same.
True, separation-of-powers interests on the President’s
side of the ledger may be “subject to erosion over time after an
administration leaves office.” Nixon v. GSA, 433 U.S. at 451.
But as we recently explained, “if there were no limits to
Congress’s ability to drown a President in burdensome requests
the minute he leaves office, Congress could perhaps use the
threat of a post-Presidency pile-on to try and influence the
President’s conduct while in office.” Trump v. Thompson, 20
F.4th 10, 44 (D.C. Cir. 2021). Congress thus could wield the
threat of intrusive post-Presidency subpoenas to influence the
actions of a sitting President “for institutional advantage.”
20
Mazars, 140 S. Ct. at 2036. And here, the Committee
specifically made known, while President Trump remained in
office, that the Committee “fully intend[ed] to continue [its]
investigation . . . in the next Congress, regardless of who holds
the presidency.” First Maloney Mem. 55.
We note, lastly, that the person “who holds the
presidency,” President Biden, has not opposed former
President Trump’s efforts to challenge the Committee’s
subpoena. Indeed, the last word of the Executive Branch in this
case, filed in our court on remand from the Supreme Court, was
to argue that the subpoena must be invalidated under the
Mazars test. Brief for the United States as Amicus Curiae at
8–15, Mazars, 832 F. App’x 6 (No. 19-5142). The
circumstances here thus are unlike those we recently faced in
Trump v. Thompson. There, former President Trump’s attempt
to assert executive privilege to prevent a House Committee
from obtaining presidential records relating to the events of
January 6, 2021, conflicted with President Biden’s considered
judgment that “Congress has demonstrated a compelling need
for [the] documents and that disclosure is in the best interests
of the Nation.” Thompson, 20 F.4th at 32.
In its order denying a stay application in that case, the
Supreme Court specifically left open the question whether
President Trump’s status as a former President could make any
difference to his ability to assert executive privilege. See Order
Denying Application for Stay 1–2, Trump v. Thompson, No.
21A272 (Sup. Ct. Jan. 19, 2022). The possibility that President
Trump’s ability to assert executive privilege may be unaffected
by his status as a former President—even in the face of the
sitting President’s opposition—gives us all the more reason to
conclude here that the test governing President Trump’s
challenge is unaffected by his departure from office during the
litigation.
21
In short, we will apply the Mazars test to the Mazars
subpoena.
C.
Having concluded that the Mazars test continues to govern
in this case, we next assess what evidence we may consider in
conducting the inquiry. In particular, are we confined to
considering only those materials in existence at the time of the
subpoena’s original issuance—chiefly, Chairman Cummings’s
three-and-a-half-page memorandum outlining his intent to
issue the subpoena? Or, may we also consider the later
memoranda prepared by Chairwoman Maloney? Those
memoranda set out the legislative purposes served by the
subpoena in far greater detail than any previous document—
the First Maloney Memorandum alone spans some 58 pages.
We conclude that we can (and should) consider the Maloney
Memoranda.
Those memoranda best set forth the Committee’s
understanding of its legislative purposes and how the
subpoenaed documents would inform the Committee’s (and
Congress’s) legislative work. We cannot lightly cast aside a
coordinate branch of government’s most fulsome explanation
for its actions, and we are reluctant to disregard a source so
pertinent to our inquiry—particularly when the Committee
reincorporated that explanation when reissuing the subpoena at
the start of the new session of Congress.
The memoranda are especially valuable because they
respond to the Supreme Court’s new test for evaluating
congressional subpoenas to the President. Before the Supreme
Court’s decision in this case, the Court had “never addressed a
congressional subpoena for the President’s information”—this
case was “the first of its kind to reach [the] Court.” Mazars,
22
140 S. Ct. at 2026, 2031. The First Maloney Memorandum
directly responded to the Supreme Court’s decision by setting
out how the subpoena satisfies the test newly announced by the
Court, including the Court’s prescription that the “more
detailed and substantial the evidence of Congress’s legislative
purpose, the better.” Id. at 2036. We see no indication that the
detailed accounting of the legislative purposes set forth in the
memoranda is ingenuine in any respect. And because President
Trump has had ample opportunity to review the memoranda
and respond to their contents, there is no cognizable prejudice
to him from our considering them.
Our consideration of the Maloney Memoranda is
consistent with our decisions. In Senate Select Committee v.
Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc), we declined to
enforce a subpoena the Senate issued for taped conversations
between President Nixon and his counsel, John W. Dean, III.
Id. at 726, 733. We observed that “the Judiciary Committee
now has in its possession copies of each of the tapes
subpoenaed by the Select Committee” such that “the Select
Committee’s immediate oversight need for the subpoenaed
tapes is, from a congressional perspective, merely cumulative.”
Id. at 732. Senate Select thus supports our consideration of
post-subpoena developments in evaluating the need for a
subpoena. It is especially appropriate for us to consider a post-
subpoena explanation for Congress’s actions because that
explanation provides the most relevant basis on which to
evaluate Congress’s purposes.
President Trump dismisses the Maloney Memoranda as “a
post-hoc litigation strategy,” rather than “an actual statement
of purpose.” Trump Reply Br. 30. But the Maloney
Memoranda predated the subpoena’s reissuance in 2021, so it
seems apparent that we would not reject those memoranda as
post-hoc in a standalone challenge to the reissued subpoena.
23
And the only reason we are not now presented with such a
challenge is that President Trump never amended his complaint
after the subpoena’s reissuance. By President Trump’s own
admission, that was a deliberate choice: he believes that the
all-but-automatic substitution of the identical, reissued
subpoena is “why this case never became moot” and “why [he]
didn’t need to amend [his] complaint.” Trump Br. 26. In those
circumstances, we see no sound reason why President Trump’s
own litigation choices in declining to amend his complaint
should preclude us from considering the most useful evidence
of Congress’s purposes in issuing and then reissuing the
subpoena—the Maloney Memoranda.
President Trump further contends that the legality of
congressional requests for information must be evaluated at the
time the subject objects, which occurred here well before the
circulation of the Maloney Memoranda. But the criminal cases
on which President Trump relies for that proposition are off
point. Those cases involve convictions for criminal contempt
arising from a witness’s refusal to answer a congressional
committee’s questions. See Watkins, 354 U.S. at 182; United
States v. Rumely, 345 U.S. 41, 42 (1953); Shelton v. United
States, 327 F.2d 601, 602 (D.C. Cir. 1963). In that context, a
committee must state why its questions pertain to the subject
under inquiry “upon objection of the witness on grounds of
pertinency.” Watkins, 354 U.S. at 214. If a witness is denied
a fair opportunity to determine whether she may permissibly
refuse to answer Congress’s questions, her conviction for
criminal contempt is invalid under the Due Process Clause. Id.
at 215. In that way, the requirement that congressional requests
be judged “upon objection” protects the due process-based
notice rights of congressional witnesses. No such concerns are
at play here.
24
For those reasons, we will consider the Maloney
Memoranda in our analysis.
D.
We turn now to applying the Mazars test to the
Committee’s subpoena, as supported by the explanation set
forth in the Maloney Memoranda. Article I of the Constitution
vests federal legislative power in Congress. U.S. Const. art. I,
§ 1. Congressional subpoenas, issued in furtherance of the
legislative function, thus “must serve a ‘valid legislative
purpose.’” Mazars, 140 S. Ct. at 2031 (quoting Quinn v.
United States, 349 U.S. 155, 161 (1955)). Congress’s
subpoena power “encompasses inquiries into the
administration of existing laws” and “studies of proposed
laws.” Id. The “congressional power to obtain information”
for those legislative purposes “is ‘broad’ and ‘indispensable.’”
Id. (quoting Watkins, 354 U.S. at 187, 215).
But because congressional subpoenas must serve valid
legislative purposes, “Congress may not issue a subpoena for
the purpose of law enforcement,” a non-legislative function
“assigned under our Constitution to the Executive and the
Judiciary.” Id. at 2032 (citation and quotation marks omitted).
Nor is there a general congressional power simply “to inquire
into private affairs and compel disclosures,” to “expose for the
sake of exposure,” or to conduct investigations “solely for the
personal aggrandizement of the investigators or to punish those
investigated.” Id. at 2032 (citation and quotation marks
omitted).
The overarching question is whether a congressional
subpoena “is ‘related to, and in furtherance of, a legitimate task
of the Congress.’” Id. at 2031 (quoting Watkins, 354 U.S. at
187). When, as here, the subpoena seeks “the President’s
25
personal information,” the circumstances also “implicate
weighty concerns regarding the separation of powers.” Id. at
2035. Consequently, in assessing whether such a subpoena
relates to and furthers a legitimate congressional task,
“[s]everal special considerations inform [the] analysis.” Id.
The Supreme Court enumerated four specific factors that courts
must take into account, while noting that “other considerations
may be pertinent as well.” Id. at 2035–36.
First, “courts should carefully assess whether the asserted
legislative purpose warrants the significant step of involving
the President and his papers.” Id. at 2035. In particular,
Congress may not obtain a President’s information “if other
sources could reasonably provide Congress the information it
needs in light of its particular legislative objective.” Id. at
2035–36. Second, assuming Congress shows the requisite need
for at least some of the President’s information, courts must
“insist on a subpoena no broader than reasonably necessary to
support Congress’s legislative objective.” Id. at 2036.
Tailoring the scope of the subpoena to Congress’s specific
legislative proposals “serves as an important safeguard against
unnecessary intrusion into the operation of the Office of the
President.” Id. (quoting Cheney v. U.S. Dist. Ct. for D.C., 542
U.S. 367, 387 (2004)).
So explained, the first and second factors work in tandem:
together, they ask whether there is a reasonable need for any
presidential information in furtherance of a legitimate
legislative objective, and, if so, how much. It follows that a
subpoena justifying Congress’s need for some but not all of the
information sought from a President would satisfy the first
factor but not the second. Such a subpoena would be
enforceable only in part, with Congress able to obtain only
those records reasonably necessary to support its legislative
ends.
26
While the first two factors address the permissible scope
of a congressional subpoena directed to a President’s personal
information, the third factor calls for courts to “be attentive to
the nature of the evidence offered by Congress to establish that
[such] a subpoena advances a valid legislative purpose.” Id. at
2036. That factor assesses the extent to which Congress has
explained itself: “The more detailed and substantial the
evidence of Congress’s legislative purposes”—i.e., the less
“vague and loosely worded [the] evidence of Congress’s
purpose”—“the better.” Id. (citation and quotation marks
omitted). The third factor thus asks whether Congress has put
forward a sufficiently detailed explanation of the legislative
need to involve the President’s papers, whereas the first and
second factors call for a substantive assessment of whether—
and to what degree—those reasons hold together to support the
subpoena.
The fourth Mazars factor shifts the focus from Congress’s
explanation for the subpoena to “the burdens imposed on the
President by a subpoena.” Id. Those burdens, the Court
explained, “should be carefully scrutinized, for they stem from
a rival political branch that has an ongoing relationship with
the President and incentives to use subpoenas for institutional
advantage.” Id.
In applying those four factors to the Committee’s
subpoena, we take them up in the same order as President
Trump does in his briefing to us. We start with the third factor
and assess the extent to which the Committee has explained its
legislative purposes and the connection between those
purposes and President Trump’s financial information. Like
the parties, we consider that question by reference to the three
investigative tracks set out in the Maloney Memoranda. After
inventorying the Committee’s accounting of its need for the
subpoenaed information under the third Mazars factor, we
27
examine, under the first two factors, the degree to which those
legislative purposes justify involving President Trump’s
information. Finally, we consider, under the fourth factor, the
burdens the subpoena imposes on President Trump.
We conclude that the Committee has adequately shown
that its legislative objectives support involvement of President
Trump’s financial information in some measure. But we
determine that the subpoena is unduly broad by reference to
those legislative purposes. None of the three investigative
tracks—nor the three tracks considered in combination—can
sufficiently justify the sweep of the subpoena. We thus narrow
the subpoena in several respects. Finally, we conclude that the
subpoena, as narrowed, does not impose an intolerable burden
on President Trump.
1.
In presenting his arguments under the four Mazars factors,
President Trump begins with the third one. Trump Br. 37–38.
We start there as well. That factor calls for us to examine the
extent to which the Committee has described its legislative
purposes and how the subpoenaed information would advance
those purposes. After assessing the adequacy of Congress’s
explanation in those respects, we can then consider, under the
first and second factors, the degree to which Congress’s stated
purposes in fact support obtaining the presidential information
covered by the subpoena.
In applying the third Mazars factor, we ask whether the
“evidence of Congress’s legislative purpose” is “detailed and
substantial,” or whether it is instead merely “vague and loosely
worded.” Id. (citation and quotation marks omitted). And
when, as in this case, “Congress contemplates legislation . . .
concerning the Presidency,” it will be “impossible to conclude
28
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
consideration of the possible legislation.” Id. (citation and
quotation marks omitted).
Here, we conclude that the Committee has adequately
described its legislative aims and sufficiently set forth how, in
its view, the subpoenaed information will further its
consideration of potential legislation. The Committee’s
explanation is “detailed and substantial.” Id. In fact, the First
Maloney Memorandum contains more than fifty pages of
explanation addressed to those subjects. The memorandum
organizes that explanation by reference to three investigative
tracks identified by the Committee: (i) Presidential financial
disclosures, (ii) Presidential contracts with the government (the
“GSA lease track”), and (iii) Presidential emoluments. The
parties’ arguments in their briefing follow that same approach,
and we will do so as well.
a.
Again following the order in which President Trump
presents his arguments, we begin with the emoluments track.
Trump Br. 36. The Committee has adequately identified its
legislative aims related to emoluments. That track of the
Committee’s investigation concerns potential legislation
requiring Presidents to report payments from foreign and
domestic governments while in office. First Maloney Mem.
23–24. The Constitution’s Foreign Emoluments Clause bars
federal officials (including the President) from accepting gifts
or other payments from foreign governments. U.S. Const. art.
I, § 9, cl. 8. The Domestic Emoluments Clause applies solely
to the President and prohibits the acceptance of gifts or other
29
payments from state governments or federal agencies. U.S.
Const. art. I, § 1, cl. 7.
The Committee points to reports that, during President
Trump’s tenure in office, foreign and domestic governments
continued to make payments to his businesses. Id. at 24, 28–
29. And the Committee explains that it is considering various
legislative proposals related to the Emoluments Clauses in
response, including bills that would require federal agencies to
report spending at a President’s businesses or require
reimbursement of taxpayer dollars spent at a President’s
properties. Id. at 30.
The Committee has also adequately explained how the
information it seeks about President Trump’s receipt of
emoluments will advance its consideration of the potential
legislation. The Committee has compiled reports that officials
from many countries spent substantial sums at President
Trump’s properties during his Presidency. Id. at 24–25. The
Committee observes that its legislative proposals aim to
address the “significant constitutional issues” raised by
President Trump’s alleged “refusal to adhere to the
Emoluments Clauses of the United States.” Id. at 30. To
address those specific issues, the Committee explains, it
requires his information.
For instance, the Committee notes that audited statements
from the Trump International Hotel “may include important
descriptive information about sources of payments and cash
flows related to foreign and domestic government payments,
which will inform Congress’s consideration of whether and
what information presidents should report upon receipt of an
emolument to preserve Congress’s constitutional role in
accepting or rejecting them.” Id. at 49. The Committee further
explains that the former President’s financial statements and
30
source documents “may show the tangible and intangible
benefits” he received, and how his businesses “have recorded,
or failed to record, payments from” foreign and domestic
government sources. Id. The Committee believes that
information would inform its consideration of legislation
addressing “the type of expenses that must be reported as
foreign emoluments.” Id. at 50. And the Committee suggests
that the subpoenaed information could “provide evidence . . .
that legislation is needed,” which could in turn win the support
of legislators who might otherwise doubt that President
Trump’s holdings gave rise to ethical concerns. Id. at 31.
We thus conclude that the Committee has explained in
adequate detail how President Trump’s papers will inform its
legislative aims under the emoluments track. We will examine
the extent to which the Committee’s explanation in fact
supports obtaining President Trump’s papers when we turn to
the first and second Mazars factors.
b.
We now apply the third Mazars factor to the GSA lease
track of the Committee’s investigation. That investigative
track concerns potential legislation to prevent Presidents from
contracting with the federal government while in office or to
provide for greater oversight of such contracts. The Committee
identifies several potential legislative initiatives in that area.
The Committee is considering legislation to “remediat[e] the
obvious conflicts of interest that arise when the President or his
businesses enter into a private contract with the United States
or any of its agencies.” Id. at 23. One bill, H.R. 1, would
prohibit contracts between the United States or its agencies and
the President. Id. Other proposals include “independent
auditing of contracts that involve the President” and mandated
submission of audited financial documentation from
31
leaseholders “who may be able to exert undue influence on
GSA.” Id.
The Committee also has explained in adequate detail how
President Trump’s information will advance those legislative
aims. Each legislative proposal fitting under the GSA lease
track responds to concerns that President Trump’s continuation
while in office of the lease of the Old Post Office for the Trump
International Hotel violated the lease’s terms and presented a
conflict of interest. Those proposals seek to remediate issues
identified by the Committee, including alleged
mismanagement of the lease and indications that, in the
Committee’s view, GSA may have been “unduly influenced by
President Trump.” Id.
The Committee thus believes that the audited financial
statements of Trump Old Post Office LLC—the Trump
International Hotel’s holding company—“are relevant to
President Trump’s conflicts of interest in the lease and GSA’s
management of those conflicts,” as well as to emoluments
concerns related to the hotel. Id. at 49. The Committee
explains that President Trump’s rent payments for the Old Post
Office were “based on key financial figures that he submit[ted]
in his audited financial reports.” Id. If the Committee were to
obtain that information, it “could craft more tailored legislative
reforms to ensure that proper rents are collected and taxpayer
interests are protected.” Id. The Committee also believes that
audited hotel statements could reveal emoluments President
Trump received through the Trump International Hotel, aiding
the Committee in determining what information must be
reported upon receipt of such payments. Id. For instance, the
Committee explains, if foreign governments paid above-
market rates at the hotel, the Committee would consider
legislative reforms capturing such payments in the President’s
reporting of emoluments. Id. at 51.
32
In light of that explanation, we conclude that, on the GSA
lease track, too, the Committee has adequately identified its
legislative objectives and explained in sufficient detail why
President Trump’s financial records would advance its
consideration of potential legislation.
c.
Lastly, we apply the third Mazars factor to the financial
disclosures track of the Committee’s investigation. That track
relates to possible amendments to the Ethics in Government
Act, as well as other proposed ethics legislation identified by
the Committee. As previously mentioned, the House has
already passed H.R. 1, a “sweeping bill” that “includes a
number of reforms that will strengthen accountability for
executive branch officials—including the President.” Id. at 12
(citation omitted). Provisions of that bill would require the
President to divest from certain financial holdings posing
potential conflicts of interest and to disclose financial interests
exceeding $10,000. Id. at 12–13. The bill would also require
candidates for President and Vice President to disclose ten
years of federal tax returns to the Federal Election
Commission. Id. at 13. Other proposed legislation concerns
“what additional information Congress should require
presidents and presidential candidates to disclose about their
financial holdings,” including whether to extend the covered
time period for disclosures or to require submission of
supporting documents. Id. at 13–14.
The Committee also has adequately explained how
President Trump’s financial information would inform its
disclosure-related legislative objectives. Each of the above
proposals responds to the Committee’s investigation of
President Trump’s financial disclosures, during which the
Committee amassed detailed evidence of suspected
33
misrepresentations and omissions in his required disclosure
forms. Alleged ethical issues identified in President Trump’s
disclosures include undisclosed payments sent to his attorney
and “numerous apparent discrepancies” between his first
federal financial disclosures in 2015 and records provided to
the Committee. Id. at 11. The Committee explains that the
President’s information would help it determine “what
additional information should be disclosed to provide a more
accurate and complete picture” of future Presidents’ or
presidential candidates’ finances and potential conflicts of
interest—“and close any loopholes.” Id. at 44–45.
The Committee also anticipates that President Trump’s
information will reveal connections between his business
entities that are not currently subject to disclosure, which
would aid the Committee in updating the financial disclosure
requirements “to reflect the true ownership structure of
businesses” held by future Presidents. And the Committee
explains that President Trump’s accounting records would
assist in “identifying new sources of wealth, their fluctuations,
and the underlying causes,” so that the Committee can “assess
the need for ethics reforms, including whether and how to
require reporting of new assets, debts, or income, such as
prospective foreign deals . . . and other monetized
relationships.” Id. at 44. Additionally, if President Trump’s
information reveals that any identified discrepancies were
merely a mistake, the Committee could “mandate additional
instructions or reporting requirements,” whereas if such
discrepancies were intentional, Congress could require the
submission of “supporting financial information.” Id. at 45.
d.
President Trump responds that the Committee has failed to
identify its proposed legislative work with enough specificity
34
across all three investigative tracks. He suggests the passage
of H.R. 1 in the House means the Committee can no longer
justify its subpoena based on a need for information related to
that proposal. At the same time, he dismisses the Committee’s
less developed legislative proposals as an “unexplained gesture
toward unknown legislation” lacking the specificity with which
Congress must identify its aims. Trump Br. 37. But if
Congress cannot obtain presidential information either early or
late in the legislative process, then it could never obtain
presidential information. “Legislative inquiries,” though,
“might involve the President in appropriate cases.” Mazars,
140 S. Ct. at 2033.
Congress may satisfy the third Mazars factor by citing
examples of legislative reforms at various points in the process
of turning a policy proposal into enacted legislation. See
Mazars, 140 S. Ct. at 2036. At an early stage, when the
language of a bill is still being drafted, presidential information
could help Congress craft policy solutions to the problem it has
identified. Once a bill has been reported by the Committee or
even passed by the full House, it remains possible that the bill
might later return to the House from the Senate. And even if
the bill were enacted into law, the Committee could always
consider further reforms. As for H.R. 1 specifically, some
constituent parts of that bill, including aspects related to
presidential ethics, have subsequently been introduced as
standalone legislation in the House, while the larger bill
remains pending in the Senate. First Maloney Mem. 13. Both
the Committee’s legislative process and its investigation are
ongoing. So is its interest in President Trump’s financial
information, as explained in detail in the Maloney Memoranda.
The Committee has adequately explained, under the third
Mazars factor, that President Trump’s financial information
would advance the Committee’s consideration of ethics reform
35
legislation across all three of its investigative tracks. But the
first and second Mazars factors require more. The President’s
information must also be insufficiently available from other
sources, and the subpoena must be no broader than reasonably
necessary. We turn to those questions next.
2.
Under the first Mazars factor, we “carefully assess
whether the asserted legislative purpose warrants the
significant step of involving the President and his papers.” 140
S. Ct. at 2035. And “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.” Id. at 2035–36.
We understand the standard Congress must meet to justify
involving a President’s papers as something more than
potential relevance but less than a demonstrated, specific need.
With respect to the lower end of that spectrum—i.e., the need
to show more than mere potential relevance to Congress’s
purposes—the Supreme Court explained in this case that
“[u]nlike in criminal proceedings,” in which the integrity of the
process requires “full disclosure of all the facts,” the legislative
process involves “predictive policy judgments that are not
hampered in quite the same way when every scrap of
potentially relevant evidence is not available.” Id. at 2036
(citations, alterations, and quotation marks omitted). At the
other end of the spectrum, the Court also specified that
Congress need not establish a “demonstrated, specific need”
for presidential information, nor need it show that the
information is “demonstrably critical to its legislative
purpose.” Id. at 2032–33 (citation and quotation marks
omitted).
36
If Congress shows the requisite need for at least some
presidential information to further its legislative purposes, then
the scope of the information sought must remain sufficiently
connected to those purposes. The second Mazars factor
embodies that understanding. It calls for courts to “insist on a
subpoena no broader than reasonably necessary to support
Congress’s legislative objective.” Id. at 2036. The required
specificity “serves as an important safeguard against
unnecessary intrusion into the operation of the Office of the
President.” Id. (quoting Cheney, 542 U.S. at 387). The second
Mazars factor thereby works in conjunction with the first factor
to delineate how much, if any, presidential information
Congress may obtain.
We determine here that the Committee has shown the
requisite need for some, but far from all, of the presidential
information covered by its subpoena. Since President Trump
left office, the Executive Branch has not taken a position in this
case on the validity of the Committee’s subpoena. With respect
to its scope, though, the Branch has elsewhere recently
characterized the Mazars subpoena as a “dragnet request.”
Ways & Means Comm.’s Request for the Former President’s
Tax Returns & Related Tax Info. Pursuant to 26 U.S.C.
§ 6103(f)(1), 45 Op. O.L.C. __, slip op. at 29 (July 30, 2021).
We find that the “dragnet” reach of the subpoena cannot be
supported under any of the Committee’s three investigative
tracks. The Committee, however, has shown sufficient need—
more than mere potential relevance but less than a
demonstrated, specific need—for a significantly narrowed
subset of the subpoenaed information.
a.
We begin, again, with the emoluments track. As the
evidence discussed with respect to the third Mazars factor
37
indicates, the Committee has identified specific emoluments-
related legislative proposals responding to evidence that
foreign and domestic governments reportedly spent millions of
dollars at President Trump’s businesses during his tenure. First
Maloney Mem. 24. The Committee thus contends that
President Trump’s information will inform its consideration of
emoluments-related legislation, including bills that would
require federal agencies to report spending at a President’s
properties or require reimbursement of taxpayer dollars spent
at a President’s properties. Id. at 30.
i. That legislative purpose supports the involvement of
President Trump’s papers in some measure. As a general
matter, when inquiring “into the administration of existing
laws” or studying “proposed laws,” Congress naturally might
wish to understand “defects” in existing “economic or political
system[s]” and laws “for the purpose of enabling the Congress
to remedy them.” Mazars, 140 S. Ct. at 2031 (citation and
quotation marks omitted). Here, the Committee would benefit
from knowing how much, and the ways in which, money
flowed to President Trump from foreign and domestic
governments to craft legislation that would address those types
of payments in the future. If President Trump received
predominantly small payments from government officials
when they patronized his hotel, that might suggest one type of
legislative solution. If his papers instead reveal that he
received favorable loan terms from foreign governments on
overseas development deals, that might warrant a different sort
of legislative response.
The Committee lacks an adequate alternative source to
inform its consideration of that kind of emoluments-related
legislation. Among recent Presidents, according to the
Committee, only President Trump declined to divest himself of
his business interests and place his assets in an independent
38
blind trust, thus failing to separate himself from emoluments
received during his tenure. And the Committee has concluded
that President Trump’s “complex and opaque financial
holdings” were “unprecedented” among modern Presidents.
First Maloney Mem. 3. In view of the apparent volume of
spending by government actors at President Trump’s properties
while he was in office, the Committee alleges that the
“financial disclosure laws have never been tested in this way
by a president.” Id. at 38.
The unique features of the Trump Presidency, as
understood by the Committee and undisputed by President
Trump here, indicate that no other President’s information
would prove fruitful to advancing the Committee’s legislative
purposes. The information of other officials subject to the
Foreign Emoluments Clause would fail to serve the
Committee’s purposes in the same way. The Committee’s
proposed legislation seeks to manage the unique conflicts of
interest arising from presidential emoluments—for instance,
the conflicts attendant to federal agency spending at businesses
owned by the official with appointment and removal power
over the heads of those agencies. And because the Domestic
Emoluments Clause applies to only the President, President
Trump’s businesses are in the unique position of likely having
documented the receipt of such payments. See U.S. Const. art.
II, § 1, cl. 7. As the Committee puts it, his information may
show the “tangible and intangible benefits President Trump has
received” and how his businesses have “kept track of or failed
to keep track of” payments qualifying as emoluments. House
Br. 49 (citation omitted). His records are thus likely to be the
best source for the Committee’s inquiry directed at legislation
governing the reporting of emoluments.
Of course, Congress may not look to President Trump “as
a ‘case study’ for general legislation.” Mazars, 140 S. Ct. at
39
2036. But here, President Trump has uniquely pertinent
information that cannot reasonably be obtained from any other
source. And the legislation under consideration (along all three
investigative tracks) is President-specific—targeting
presidential disclosures and conflicts of interest—rather than
general. In those circumstances, the Committee has shown that
its emoluments-related legislative purposes warrant involving
President Trump’s papers.
President Trump objects that knowing the exact amount of
emoluments he received is unnecessary for consideration of
emoluments-related legislation, especially when the
Committee already has substantial evidence indicating that he
received foreign and domestic emoluments. Trump Br. 39.
But that argument amounts to demanding that the Committee
show a demonstrated, specific need for the records, a standard
that the Supreme Court explicitly rejected. We are persuaded
that understanding the nature and scope of the “defects” in
existing laws and systems will sufficiently aid the Committee
in tailoring its solution. Mazars, 140 S. Ct. at 2031 (citation
omitted). The amount and type of emoluments received by the
former President may inform what legislative reform is most
appropriate: for instance, the Committee may choose to ban
emoluments altogether above a certain threshold, while
requiring additional disclosures of smaller gifts or payments.
We also appreciate the legislative reality that conveying the
scope of a problem may help the Committee garner the
necessary support to enact a legislative fix: as the Committee
explains, the facts gathered during the legislative process aid in
demonstrating “the need for such legislation to Members of the
House and Senate as well as to the American public.” First
Maloney Mem. 54.
ii. Still, the Committee’s emoluments-related objectives
cannot possibly justify the breadth of documents encompassed
40
by the subpoena. Both the timeframe and the type of
documents covered by the subpoena range substantially
beyond what is “reasonably necessary” to support the
Committee’s legislative objectives related to emoluments.
Mazars, 140 S. Ct. at 2036.
With regard to the timeframe, the Committee requests
information for the period 2011–2018. We agree with the
district court that the emoluments track justifies information
from only 2017 and 2018, the years in which President Trump
could have received emoluments while in office. The
Committee responds that a snapshot in time is not enough; only
“an understanding of President Trump’s financial relationships
as they existed before he took office,” would allow the
Committee to determine “whether changes in those
relationships after he took office may reflect impermissible
emoluments.” House Br. 81. But as the Supreme Court
explained, “efforts to craft legislation involve predictive policy
judgments” that do not require all relevant evidence. Mazars,
140 S. Ct. at 2036. While some of President Trump’s prior
transactions could provide context for his business dealings
with foreign governments, the Committee has failed to
demonstrate on the record before us that his financial records
from before 2017 would do so. We thus conclude that those
earlier documents are not reasonably necessary for Congress to
understand President Trump’s alleged financial entanglements
with government actors while in office.
We turn next to the scope of relevant documents. The
subpoena demands information with respect to the following
individual and entities: Donald J. Trump, the 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,
along with any affiliates. The Donald J. Trump Revocable
41
Trust is the principal holding entity for President Trump’s
business assets and major operating companies following the
2016 election, including the Trump Organization Inc., the
Trump Organization LLC, the Trump Corporation, and DJT
Holdings LLC. Trump Old Post Office LLC is the federal
leaseholder of the Old Post Office Building in Washington,
D.C., and operator of the Trump International Hotel. And the
Trump Foundation was a charitable organization dissolved in
2018, which the Committee believes President Trump used for
personal purposes.
The subpoena seeks four types of information from those
entities. First, “statements of financial condition, annual
statements, periodic financial reports, and independent
auditors’ reports prepared, compiled, reviewed, or audited by
Mazars USA LLP or its predecessor, WeiserMazars LLP”—in
other words, accounting records. 2021 Subpoena. Second, “all
engagement agreements or contracts related to the preparation,
compilation, review, or auditing of” those accounting records.
Id. Third, “[a]ll underlying, supporting, or source documents
and records used in the preparation, compilation, review, or
auditing of [the accounting records], or any summaries of such
documents and records relied upon, or any requests for such
documents and records.” Id. Fourth, “all memoranda, notes,
and communications related to the preparation, compilation,
review, or auditing of the [accounting records].” Id. Such
communications include, but are not limited to, “all
communications between Donald Bender and Donald J. Trump
or any employee or representative of the Trump Organization;
and all communications related to potential concerns that
records, documents, explanations, or other information,
including significant judgments, provided by Donald J. Trump
or other individuals from the Trump Organization, were
incomplete, inaccurate, or otherwise unsatisfactory.” Id.
42
The Committee’s emoluments-related legislative
objectives fail to show a reasonable need for that scope of
information. The Committee’s investigation under the
emoluments track relates solely to payments made by foreign
and domestic government actors to the former President during
his tenure. But the subpoena as drafted covers a vast universe
of information unconnected to that subject.
The subpoena to Deutsche Bank from the House
Permanent Select Committee on Intelligence seeking similar
information is instructive in considering the appropriate scope
of the Mazars subpoena under the emoluments track. After the
Supreme Court set forth the Mazars test, the Intelligence
Committee limited the documents and information sought, in
most instances, to those showing or potentially revealing “any
financial relationships, transactions, or ties between [Trump
entities] and any foreign individual, entity, or government.”
See Schiff Memorandum 11–12. A similar limitation is
warranted here.
The requested accounting records, source documents,
engagement letters, and communications qualify as reasonably
necessary to support the Committee’s emoluments-related
objectives only to the extent they relate to any financial
relationships, transactions, or ties between President Trump or
the other Trump entities and actors potentially subject to the
Emoluments Clauses—i.e., a foreign state or foreign state
agency, the United States, a federal agency, a state or a state
agency, or an individual government official. Without such a
limitation, the subpoena sweeps in reams of unrelated records
and is substantially broader than reasonably necessary to
inform the Committee’s legislative efforts concerning
emoluments.
43
As limited, the subpoena will provide Congress only those
records sufficiently related to payments made to President
Trump or Trump entities, during his tenure in office, from
foreign and domestic governmental actors. Information related
to those foreign and domestic payments satisfies the first and
second Mazars factors.
b.
We turn next to the GSA lease track of the Committee’s
investigation. That track involves legislative reforms aimed at
increasing oversight of contracts between Presidents and the
federal government.
i. We first conclude that the Committee’s proposed
general reforms to GSA bidding processes do not warrant the
significant step of involving President Trump’s papers. As
President Trump correctly contends, similar information about
the bidding process for leasing GSA properties could be
obtained from any leaseholder. The processes for awarding the
Old Post Office lease to Trump Old Post Office LLC and
managing it before his term as President were not specific to
him. The GSA “owns and leases over 376.9 million square feet
of space in 9,600 buildings in more than 2,200 communities
nationwide.” GSA Properties, https://tinyurl.com/mwcev3yj
(last visited June 7, 2022). Another leaseholder’s records
would thus serve as an adequate alternative source of
information for the Committee’s legislative purposes related to
inaccuracies in bidding documents. And Congress may not use
President Trump “as a ‘case study’ for general legislation”
concerning the bidding process more broadly. Mazars, 140 S.
Ct. at 2036.
The Committee’s more specific proposals concerning
presidential contracting while in office fare better. According
44
to the Committee, no other President was a federal leaseholder
while in office. And as the official who appoints and has the
power to remove the GSA Administrator, the President carries
a risk of undue influence over the GSA not shared by any other
leaseholder or officeholder. The Committee seeks President
Trump’s records to determine the ways in which he may have
exploited his position to pressure the GSA into permitting him
to violate the Old Post Office lease—information that would
allow the Committee to tailor its legislative response. And his
records may reveal further conflicts of interest related to the
hotel. As noted, in a 2019 report, the GSA Inspector General
found “serious shortcomings” in GSA’s management of the
emoluments issues related to the Old Post Office lease. First
Maloney Mem. 18. The Committee wishes to obtain President
Trump’s records to determine the extent of those shortcomings
so that it can fashion legislation to prevent similar problems
from recurring, whether by prohibiting presidential contracting
with the government altogether or instead increasing reporting
and oversight requirements for future presidential leaseholders.
President Trump’s papers are the Committee’s only
reasonably available source of information for legislation
concerning the management of federal leases held by
Presidents. To be sure, there is no guarantee that his financial
information will reveal additional problems with GSA’s
management of the lease. The Committee, of course, cannot
know exactly what it will find in President Trump’s papers
before it has them. But we conclude that his papers are likely
to provide further insight into GSA’s management of the Old
Post Office lease during his presidency. And those insights
would help the Committee in considering legislation to insulate
the agency from pressures exerted by presidential leaseholders.
The Committee again need not show a demonstrated, specific
need for the President’s papers—just that other sources would
45
not reasonably provide the needed information to advance the
particular legislative objective. Mazars, 140 S. Ct. at 2035–36.
President Trump contends that, inasmuch as his alleged
conflict of interest is already “apparent,” no additional
information is required. Trump Br. 46. While the continuation
of a federal lease by the President may present a readily
“apparent” conflict of interest, the Committee is concerned
with the particulars of GSA’s management of that conflict to
inform its consideration of legislative responses. Only
President Trump’s papers can provide a full picture of GSA’s
management of the lease during his Presidency. And only his
information will shed light on how and why GSA determined
that he could maintain the lease, information that could aid the
Committee in considering legislation to govern GSA’s
management of any similar arrangements in the future.
Although the Committee has the revenues President Trump
reported for Trump Old Post Office LLC in 2017, 2018, and
2019, omissions from—or additional specificity in—the
breakdown of that revenue could help the Committee decide
what disclosures GSA should require from presidential
leaseholders. And at the very least, the Trump Old Post Office
LLC’s hotel ledger will reveal whether and how often
personnel from federal agencies patronized the Trump
International Hotel, potentially guiding the Committee in
enacting prospective legislation limiting or prohibiting federal
agency spending at a President’s properties.
President Trump emphasizes that the Committee has
already received documents directly from GSA as part of its
investigation into his Old Post Office lease. But the inquiry
into alternate sources under the first Mazars factor concerns
whether sources other than a President’s information may
inform the Committee’s purposes, not whether another third-
party custodian may also provide the Committee with that
46
President’s information. In any event, the Committee has
expressed its intention “to reduce Mazars’ burden by excluding
identical documents received from GSA” from the scope of the
information requested under the GSA track. Notice at 1,
Mazars USA LLP, 560 F. Supp. 3d 47 (No. 19-cv-01136), ECF
No. 67. The extent to which the information possessed by
Mazars is duplicative of information already obtained from the
GSA cannot be known unless and until the Committee receives
the former, but the Committee has already committed to
eliminating duplication.
ii. Once again, however, the Committee’s legislative
objectives cannot possibly justify the vast scope of information
covered by the subpoena. At oral argument, counsel for the
Committee conceded that the GSA track could not justify the
full breadth of the subpoena. Oral Arg. Tr. 62. Here again, we
must significantly narrow it.
We begin again with the relevant timeframe. The
Committee’s request reaches back to 2011 because the
Committee wishes to investigate possible inaccuracies in
President Trump’s self-reporting during the bidding process for
the Old Post Office lease. GSA began soliciting proposals for
the redevelopment of the Old Post Office on March 24, 2011,
and Trump Old Post Office LLC submitted its initial proposal
on July 20, 2011. But information relating to possible
misrepresentations made by President Trump during the
bidding process before he was elected President do not warrant
the involvement of his papers. The legislation under
consideration in the GSA track that warrants involvement of
President Trump’s papers aims to tighten requirements for
submissions from federal leaseholders “who may be able to
exert undue influence on GSA.” First Maloney Mem. 23. And
the relevant legislative proposals identified by the Committee
correspondingly pertain to the management of federal leases
47
held by a President—the person who appoints and can remove
the GSA Administrator—not by persons who have yet to
become President. As a result, only information from
November 2016 through 2018, during which time President
Trump was the President-elect and then President, could be
reasonably necessary to support Congress’s legislative
purpose. The Committee has made no suggestion that persons
who have yet to become President “may be able to exert undue
influence on GSA.” Id.Having limited the years covered by the subpoena, we next
consider the scope of documents and entities encompassed by
the subpoena for those years. We agree with the district court
that the GSA track justifies the full scope of documents with
respect to one entity: Trump Old Post Office LLC, the Trump
International Hotel’s holding company. Trump Old Post
Office LLC is the holder of the Old Post Office lease and
operates the Trump International Hotel in Washington, D.C.
That entity was specifically created to enter the GSA lease and
does not appear to be involved with President Trump’s other
business ventures. We thus conclude that all documents
belonging to Trump Old Post Office LLC from the relevant
years are sufficiently likely to inform the Committee’s
legislative objectives concerning the GSA lease, either directly
or indirectly by their relation to operation of the hotel.
As for all other listed entities, however, the subpoena is
overbroad. Those entities cover several of President Trump’s
privately held businesses, which operate properties across the
United States and the world, as well as the now defunct Trump
Foundation charitable organization. Enforcing the subpoena as
to those entities could sweep in documents entirely unrelated
to the GSA lease, which concerns just one of President
Trump’s properties—the Trump International Hotel.
48
As a result, on the record before the court, as to listed
entities other than Trump Old Post Office LLC, the Committee
has supplied sufficient evidence that its legislative objectives
support obtaining only those documents that relate to the Old
Post Office lease. The Committee’s own requests to GSA
demonstrate the type of narrowing that is necessary: in a letter
to GSA in April 2019, even the Committee’s broadest request
asked only for “all documents referring or relating to Mazars
USA LLP or WeiserMazars LLP related to the Old Post Office
lease.” Letter from Elijah E. Cummings, Chairman, House
Comm. on Oversight & Reform, & Gerald E. Connolly,
Chairman, House Subcomm. on Gov’t Operations, to Emily
Murphy, Adm’r, Gen. Servs. Admin. 3 (Apr. 12,
2019),https://perma.cc/R3K7-EFS7. For purposes of the GSA
lease track, the Mazars subpoena must be limited to
information referencing, indicating, discussing, or otherwise
relating to, the Old Post Office lease. So narrowed, the
subpoena satisfies the first and second Mazars factors under the
GSA track.
c.
We lastly consider the financial disclosures track. In our
view, the Committee’s request for records under that track
presents a particularly close question. But we conclude that,
when significantly narrowed, the Committee’s disclosure-
related legislative purposes satisfy the first and second Mazars
factors.
i. Recall that under the financial disclosures track, the
Committee is considering legislation requiring additional
disclosures from Presidents and presidential candidates under
the Ethics in Government Act or, alternatively, divestment of
assets upon assuming the Office of the Presidency. The House
has already passed H.R. 1, provisions of which would require
49
Presidents to divest certain financial holdings posing potential
conflicts of interest and to disclose financial interests
exceeding $10,000. Id. at 12–13. The bill would also require
candidates for President and Vice President to disclose ten
years of federal tax returns to the Federal Election
Commission. Id. at 13. Other proposed legislation concerns
“what additional information Congress should require
presidents and presidential candidates to disclose about their
financial holdings,” including whether to extend the covered
time period for disclosures or to require submission of
supporting documents. Id. at 13–14. Through those kinds of
proposals, the Committee aims to address the concerns raised
by ostensible misrepresentations and omissions in President
Trump’s financial disclosure forms.
We note that a host of government officials besides
Presidents are subject to the disclosure requirements of the
Ethics in Government Act, including Vice Presidents,
Members of Congress, executive branch employees classified
at GS-16 or above, judicial officers and employees, and other
officials. 5 U.S.C. app. § 101(f). President Trump is not the
first federal official to be accused of unethical behavior,
including omissions from required disclosures.
But the Committee’s aim is not to close just any gaps in
the financial disclosure laws. It wants to close the specific gaps
that President Trump allegedly exploited. And Congress may
inquire into “defects in our social, economic or political system
for the purpose of enabling the Congress to remedy them.”
Mazars, 140 S. Ct. at 2031 (2020) (quoting Watkins, 354 U.S.
at 187). So while the information of another official might
provide the Committee with general information about what
current financial disclosure laws capture, no other official’s
records will provide information concerning the specific
loopholes President Trump allegedly exploited in failing to
50
fully report his potential conflicts of interest. President Trump
is the only official accused of the particular misrepresentations
the Committee seeks to prevent, so his records serve as the only
reasonably available source to inform that legislation. (And as
explained below, we will permit the Committee access to only
those records pertaining to those specific misrepresentations.)
The Committee has presented substantial evidence of the
ethics legislation under consideration and has explained why
learning more about misrepresentations identified in President
Trump’s disclosures would be helpful for enacting those ethics
reforms. The Committee’s information about how the former
President’s papers will inform its legislative aims is less than
perfect, but that is primarily a consequence of the fact that the
Committee has not received the documents it requested. The
entire purpose of its investigation is to uncover details that the
Committee does not already have yet needs to inform the
passage of legislation.
If the level of evidence presented by the Committee here
does not suffice to obtain a narrowed subset of the former
President’s information, we doubt that any Congress could
obtain a President’s papers under a disclosure-related rationale.
The Committee has likely provided as much detail as possible
without having access to the information it seeks. And the
Mazars test could not have been intended to prevent Congress
from ever obtaining the President’s information in connection
with disclosure-related legislative purposes. Requiring
disclosures aimed at preventing Presidents from engaging in
self-dealing and other conflicts of interest is assuredly a
legitimate legislative purpose. We conclude that the
Committee has carried its burden to show that no other source
of information can adequately assist it in closing the gaps that
allegedly allowed President Trump to avoid disclosing
potential conflicts of interest.
51
We recognize that future committees could seek a
President’s papers by claiming to be studying legislation
requiring disclosures of precisely the type of record sought or
legislation targeting specific actions by that President. But the
Committee seeks to address the gaps that allegedly allowed this
President to make numerous omissions in his disclosure forms,
evidence of which President Trump does little to dispute. That
warrants involvement of his papers to aid the Committee’s
consideration of legislation closing those loopholes. The
narrowing that we will accomplish next also does much to
address this concern: to the extent that a future committee
seeks evidence of discrepancies where none exists, an
appropriately tailored subpoena will turn up nothing at all.
The information the Committee receives will help it tailor
potential legislative reforms to the problems it wishes to
address. If President Trump’s information reveals that any
discrepancies were merely a mistake, the Committee could
respond with clarified instructions. But if the omissions reveal
themselves to be intentional, the Committee may instead
choose to require the submission of additional source
information. President Trump’s papers also may provide the
Committee with valuable insight into how to craft disclosure
laws that capture the full ownership structure of a future
President’s businesses.
ii. Although the Committee has shown adequate need to
involve President Trump’s papers on the financial disclosures
track, here again, the subpoena is far too broad as drafted.
We begin with the timeframe. Mr. Trump filed his first
financial disclosure as a candidate for office on July 15, 2015,
reporting information stretching back to the beginning of 2014.
First Maloney Mem. 43. The Committee intends to close the
loopholes that allowed candidate and President Trump to avoid
52
disclosing relevant information about his financial holdings in
those required forms. That purpose justifies obtaining
information beginning in 2014—the first year covered by
President Trump’s disclosure forms. We are unpersuaded by
the Committee’s argument that it requires information
stretching back to 2011 to consider whether existing laws
should “reach[] farther back in time and require[] additional
disclosure.” House Br. 69 (quoting First Maloney Mem. 43).
Information from before 2014 is not reasonably necessary to
determine what President Trump left out of his required
disclosures as a presidential candidate.
The scope of documents encompassed by the subpoena is
substantially overbroad. At its crux, the Committee’s inquiry
seeks to ascertain what President Trump ostensibly omitted
from his required disclosure forms, whether because of
misrepresentations or because of gaps in the required
disclosures. Accounting records, source documents, and
engagement agreements are therefore reasonably necessary
only to the extent they reference, indicate, or discuss any
undisclosed, false, or otherwise inaccurate information about
President Trump’s or a Trump entity’s reported assets,
liabilities, or income for the period 2014–2018. We trust that
President Trump’s third-party accountant will comply with the
court’s order to disclose all such information by carefully
assessing which information falls within that description.
Similarly targeted language has been used in prior subpoenas
seeking information about inaccuracies in public disclosures.
See U.S. Commodity Futures Trading Comm’n v. McGraw-Hill
Cos., Inc., 390 F. Supp. 2d 27, 37 (D.D.C. 2005).
As for the subpoena’s coverage of communications
between Mazars and President Trump or the other listed
entities, the Committee justifies its request for all such
communications as necessary to determine whether the
53
identified discrepancies were based on intentional
misstatements or instead occurred by mistake. The disclosure
of all communications between Mr. Trump and Donald Bender,
the partner who reportedly manages his accounts, has not been
justified by that investigative purpose. The subpoena already
singles out communications “related to potential concerns that
records, documents, explanations, or other information,
including significant judgments provided by Donald J. Trump
or other individuals from the Trump Organization, were
incomplete, inaccurate, or otherwise unsatisfactory.” 2021
Subpoena. The subpoena must be limited in that way for all
communications, including those involving Mr. Bender.
Although some communications between President Trump and
his accountants are reasonably necessary to understand his
assets, we hold that the Committee can access only those
communications related to potential concerns about
misrepresentation or omissions.
As narrowed, the subpoena would provide Congress with
only that subset of information related to omissions that
President Trump made in his disclosures as a presidential
candidate and as President. That confined scope satisfies the
first and second Mazars factors.
iii. President Trump contends Congress cannot need his
documents for prospective legislation to govern future
Presidencies when the Committee has described his Presidency
as “unique and unprecedented” and “a class of one.” Trump
Reply Br. 46 (citations omitted). According to President
Trump, “[n]o rational Congress would craft laws that will apply
to all future officials by focusing on the finances of a single,
wildly unrepresentative official.” Id. But a court has no
warrant to limit Congress’s consideration of legislation
responding to a problem it would like to solve merely because
the importance of the issue may be unapparent to the court. It
54
is not our role to question whether enacting generalized
prospective legislation based on a particularized past problem
makes good policy. We leave it to Congress to assess the
likelihood that history may repeat itself.
There is also ample precedent for singular events inducing
broad legislative responses. The Watergate scandal was a
unique event in American history, yet it inspired a bevy of
ethics-reform legislation, including the Ethics in Government
Act. And we recently recognized Congress’s “uniquely vital
interest” in considering remedial legislation in response to the
“unprecedented” January 6 attack on the Capitol. Thompson,
20 F.4th at 17, 33. Insofar as President Trump may seem to be
in a class of one per the Committee’s own characterization,
Congress could enact legislation to prevent perceived conflicts
of interest that arose during his Presidency from happening
again. And it is entirely possible that a future President or
presidential candidate will have similarly complex finances or
business holdings. Even if the Committee believes that
President Trump was the first President of his kind in certain
respects, it can act out of a concern that he will not be the last.
3.
Having applied the first, second, and third Mazars factors
to the Committee’s subpoena, we now take up the fourth factor,
which is the last one specifically enumerated by the Supreme
Court. And because we already have considerably
circumscribed the subpoena pursuant to our obligation to
“insist on a subpoena no broader than reasonably necessary to
support Congress’s legislative objective,” 140 S. Ct. at 2036,
we apply the fourth Mazars factor to the subpoena as narrowed.
Under that factor, we must “assess the burdens imposed on the
President by [the] subpoena.” Id. We conclude that the
subpoena, as narrowed, does not impose any unwarranted
55
burdens on President Trump, so it need not be quashed or
further limited under the fourth Mazars factor.
Now that President Trump is out of office, any burdens the
Committee’s subpoena imposes on him will no longer distract
the head of the Executive Branch. That is significant in view
of the Supreme Court’s emphasis on avoiding “unnecessary
intrusion into the operation of the Office of the President.” Id.
(emphasis added) (quoting Cheney, 542 U.S. at 387). President
Trump acknowledges the point, admitting that direct burdens
on the President’s time and attention “never mattered much to
begin with” under the fourth Mazars factor, “since no President
is going to compile documents himself.” Trump Br. 31. What
is more, the subpoena is directed to President Trump’s
accounting firm, not the former President himself. To be sure,
the time required to litigate this lawsuit falls on him in some
measure. But he chose to bring the lawsuit, and at any rate, the
“time and attention stemming from judicial process and
litigation, without more, generally do not cross constitutional
lines.” Mazars, 140 S. Ct. at 2036. That must be especially
true in the case of a President no longer in office.
President Trump contends that the subpoena is overly
burdensome because of the sheer volume of personal financial
records it seeks. He characterizes a subpoena seeking a full
accounting of his personal financial situation as unnecessarily
intrusive in its lack of specificity. But we have now narrowed
that subpoena to ensure it is no broader than reasonably
necessary to support the Committee’s specific legislative
objectives under each of its three investigative tracks.
Compliance with the subpoena as narrowed, in our view, does
not impose an undue burden on President Trump for purposes
of the fourth Mazars factor.
56
* * *
In light of the required narrowing of the Committee’s
subpoena as enumerated above, we hold that the Committee’s
legislative aims under its three investigative tracks, considered
in combination, justify production of only the following subset
of information encompassed by its subpoena: accounting
records, source documents, and engagement letters from 2014–
2018 that reference, indicate, or discuss any undisclosed, false,
or otherwise inaccurate information about President Trump’s
or a Trump entity’s reported assets, liabilities, or income;
associated communications from 2014–2018 related to
potential concerns that information provided was incomplete,
inaccurate, or otherwise unsatisfactory; all requested
documents from November 2016–2018 belonging to Trump
Old Post Office LLC; all documents from November 2016–
2018 referencing, indicating, discussing, or otherwise relating
to, the Old Post Office lease; and all documents from 2017–
2018 related to financial relationships, transactions, or ties
between President Trump or a Trump entity and any foreign
state or foreign state agency, the United States, any federal
agency, any state or any state agency, or an individual
government official.
As substantially narrowed in that fashion, we conclude that
the Mazars subpoena is “no broader than reasonably necessary
to support Congress’s legislative objective[s]” across the
Committee’s three investigative tracks. Mazars, 140 S. Ct. at
2036. Again, the Committee need not show that it has a
“demonstrated, specific need” for that subset of information,
nor that the subset of information is “demonstrably critical” to
its legislative purposes. Id. at 2032 (citations omitted). Rather,
“reasonably necessary” is the relevant standard, id. at 2036, and
we believe that standard is met when the subpoena is narrowed
as set out in the preceding paragraph.
57
President Trump advances one last, overarching objection
to our effort to render the subpoena consistent with the Mazars
factors. In his view, once a court concludes that a
congressional subpoena for presidential information is
overbroad in any respect, the court cannot itself narrow the
subpoena. Rather, he submits, the court must simply invalidate
the overbroad subpoena and send the matter back to Congress
to permit it to fashion a new subpoena. We disagree.
The Supreme Court’s opinion in this case does not
definitively resolve that issue. But in specifying that a court
must “insist on a subpoena no broader than reasonably
necessary,” id. at 2036, we believe the Supreme Court intended
to allow for a court reviewing a subpoena to conduct any
required narrowing itself rather than to return the matter to
Congress to start the process anew.
In a companion case decided on the same day as this case,
the Supreme Court recognized that courts possess “inherent
authority to quash or modify [a] subpoena” and “should use”
that power to prevent interference with the President’s duties.
Trump v. Vance, 140 S. Ct. 2412, 2431 (2020) (emphasis
added). Although that case concerned a state grand jury
subpoena, the same principle naturally applies to a
congressional subpoena. And in the context of congressional
subpoenas in particular, we have explained that courts have the
power to modify a subpoena seeking “privileged or other
protected matter.” Comm. on Judiciary v. McGahn, 968 F.3d
755, 772 (D.C. Cir. 2020) (en banc) (citation omitted). Indeed,
the Federal Rules of Civil Procedure give courts discretion to
modify rather than quash a subpoena that subjects a person to
an undue burden. Fed. R. Civ. P. 45(d)(3)(A). And we have
suggested that district courts must, “when appropriate, consider
the possibility of modifying the subpoena rather than quashing”
it, even in the context of subpoenas seeking sensitive Executive
58
Branch documents. See Northrop Corp. v. McDonnell Douglas
Corp., 751 F.2d 395, 403 (D.C. Cir. 1984); see also Linder v.
Nat’l Sec. Agency, 94 F.3d 693, 698 (D.C. Cir. 1996).
In nonetheless contending that courts lack the authority to
narrow a congressional subpoena, President Trump relies
principally on United States v. Patterson, 206 F.2d 433 (D.C.
Cir. 1953). There, we extended the rule that a person may not
be held in contempt “under a subpoena that is part good and
part bad” to indictments resting on congressional subpoenas.
Id. at 434 (quoting Bowman Dairy Co. v. United States, 341
U.S. 214, 221 (1951)). In such situations, “[t]he burden is on
the court to see that the subpoena is good in its entirety and it
is not upon the person who faces punishment to cull the good
from the bad.” Id. Patterson’s “good in its entirety” rule
implicates “principles of equal justice” and considerations of
individual due process that are not at issue here. Id. Nothing
in that decision constrains a court’s ability to modify a
subpoena in advance, as we do here: when a court
prospectively narrows a subpoena, it discharges—rather than
disregards—any duty on its part to ensure that a subpoena, as
so modified, is “good in its entirety.”
Our sister circuit came to the same conclusion when
initially considering the congressional subpoenas issued to
Deutsche Bank and Capital One for President Trump’s
information. The Second Circuit expressed concerns that the
subpoenas as drafted could require the disclosure of documents
that “might reveal sensitive personal details having no
relationship to the Committees’ legislative purposes.”
Deutsche Bank AG, 943 F.3d at 667. The court outlined a
procedure by which the district court could exclude, on
identification by the challenging parties, those sensitive
materials and other documents having “such an attenuated
59
relationship to the Committees’ legislative purposes that they
need not be disclosed.” Id. at 667–68.
We agree that courts have that kind of authority. And we
exercise that authority to narrow the Committee’s subpoena to
the extent necessary for us to sustain it as consistent with the
four factors set out by the Supreme Court.
III.
The Supreme Court left open the possibility that, in
addition to the four factors it specifically enumerated, “[o]ther
considerations may be pertinent as well.” Mazars, 140 S. Ct.
at 2036. President Trump advances certain “other
considerations” that he believes render the Committee’s
subpoena categorically unenforceable. He made each of the
same arguments when this case was before the Supreme Court.
But the Court, rather than invalidate the subpoena on any of
those grounds, remanded for examination of the subpoena
under the four factors it set out. We are unpersuaded by
President Trump’s various arguments that the Committee’s
subpoena is categorically invalid.
A.
President Trump first contends that the principal purpose
of the subpoena is not a legislative one. Rather, he submits, the
subpoena centrally seeks to expose his wrongdoing—an
illegitimate, non-legislative purpose. See id. at 2031–32.
It is of course true that a “congressional subpoena must
serve a ‘valid legislative purpose.’” Id. at 2031 (quoting
Quinn, 349 U.S. at 161). But in the course of (and sometimes
even in furtherance of) pursuing a valid legislative aim,
Congress might uncover and seek to understand wrongdoing so
60
that it can better appreciate the nature of any gaps in existing
laws. On that understanding, it is not a “valid objection” to a
congressional investigation “that it might possibly disclose
crime or wrongdoing.” McGrain, 273 U.S. at 180. Rather, as
we have recently said, “[t]he mere prospect that misconduct
might be exposed does not make [a] Committee’s request
prosecutorial” rather than legislative. Thompson, 20 F.4th at
42. After all, “[m]issteps and misbehavior are common fodder
for legislation.” Id.
When this case was before the Supreme Court, President
Trump made an extended argument that the Committee had
issued the Mazars subpoena for an impermissible law-
enforcement purpose—to expose his wrongdoing—rather than
for a permissible legislative purpose. Brief for Pet’rs 36–45,
Mazars, 140 S. Ct. 2019 (No. 19-715) [Trump S. Ct. Br.]. He
asked the Supreme Court to invalidate the subpoena on that
ground. At that time, the Maloney Memoranda had not been
prepared, and Chairman Cummings’s succinct memorandum
served as the Committee’s primary explanation for the
subpoena. That memorandum concluded by stating, without
any elaboration, that the Committee’s investigation
“inform[ed] its review of multiple laws and legislative
proposals under [its] jurisdiction.” Cummings Mem. 4. And as
President Trump emphasizes, the memorandum also cited, as
the first of four areas of ongoing inquiry, “investigat[ion] [of]
whether the President may have engaged in illegal conduct
before and during his tenure in office.” Id.The Supreme Court’s decision subsequently explained, in
language we have quoted multiple times in this opinion, that
“when Congress contemplates legislation . . . concerning the
Presidency,” it will be “impossible to conclude that a subpoena
is designed to advance a valid legislative purpose unless
Congress adequately identifies its aims and explains why the
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President’s information will advance its consideration of the
possible legislation.” Mazars, 140 S. Ct. at 2036 (citation and
quotation marks omitted). Our previous application of that
Mazars factor, taking into consideration the Committee’s
detailed explanation in the Maloney Memoranda, shows that
the Committee’s subpoena “is designed to advance a valid
legislative purpose,” id., not an illegitimate law-enforcement
one. We have already concluded that the Committee has
adequately justified the Mazars subpoena as aiding its
consideration of a raft of potential legislation.
President Trump characterizes the Maloney Memoranda
as impermissible, retroactive rationalizations of an improper
purpose. The Committee responds that it provided the
additional detail in the Maloney Memoranda to clarify its
legislative purposes in response to the Supreme Court’s
decision, rather than to justify an illegitimate subpoena after
the fact.
We previously established that we may consider the
Maloney Memoranda in evaluating the Committee’s reasons
for issuing and reissuing the subpoena. And in evaluating the
legitimacy of the subpoena, “we do not look to the motives
alleged to have prompted it.” Eastland v. U.S. Servicemen’s
Fund, 421 U.S. 491, 508 (1975). “In times of political passion,
dishonest or vindictive motives are readily attributed to
legislative conduct and as readily believed,” but “[c]ourts are
not the place for such controversies.” Tenney v. Brandhove,
341 U.S. 367, 378 (1951); see Eastland, 421 U.S. at 509. We
thus accept the legislative purposes the Committee sets forth in
detail in the Maloney Memoranda, and we have explained why
the Committee’s extended accounting of its purposes in those
memoranda “adequately identifies its aims and explains why
the President’s information will advance its consideration of
the possible legislation.” Mazars, 140 S. Ct. at 2036.
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B.
President Trump next contends that the Committee’s
subpoena is not pertinent to any constitutional legislation. A
congressional subpoena “must concern a subject on which
legislation could be had.” Id. at 2031 (citation, alteration, and
quotation marks omitted). At this juncture, however, we do not
know the particulars of any legislation that Congress might
ultimately enact, and those particulars might differ
significantly from proposed legislation currently under
consideration. In fact, the Supreme Court specifically
envisioned that courts would examine congressional subpoenas
issued in “contemplat[ion of] legislation that raises sensitive
constitutional issues, such as legislation concerning the
Presidency.” Id. at 2036. And the Supreme Court did not
suggest that a court examining a subpoena in that context
would be expected to pronounce in advance on whether
contemplated legislation addressing such “sensitive
constitutional issues” passes constitutional muster.
In any event, there is no reason to conclude at this point
that any legislation in the areas considered by the Committee
would necessarily present a constitutional problem. Each of
the Committee’s three investigative tracks contemplates
legislation to strengthen disclosure requirements related to
conflicts of interest, presidential contracts, and emoluments.
And as we explained previously in this case, examples
throughout the United States Code, including the Ethics in
Government Act, suggest that there is “no inherent
constitutional flaw in laws requiring Presidents to publicly
disclose certain financial information.” 940 F.3d at 734–37.
Before the Supreme Court, President Trump argued that
the Committee’s subpoena could not result in any valid
legislation, in part because requiring additional disclosures
63
from future Presidents would be unconstitutional. See Trump
S. Ct. Br. 45–52. The Supreme Court, while not specifically
addressing that argument in its opinion, did not take up
President Trump’s invitation to invalidate the Committee’s
subpoena on that basis. We find no reason now to do so.
C.
President Trump next contends that the subpoena is per se
invalid because the Committee has offered no assurances that
the financial information it obtains will be kept confidential
from other members of Congress or the public at large.
Because the Committee has resisted his request for
confidentiality, he maintains, the Committee’s true aim must
be to publicly expose him.
It is understandable that a lack of guaranteed
confidentiality would give President Trump pause about the
disclosure of his personal financial records. But we see no
basis for imposing a blanket requirement for a congressional
committee to assure confidentiality when issuing a subpoena
for presidential information. Before the Supreme Court,
President Trump argued that the Committee’s “desire to
publicly expose the President’s personal finances” provided
grounds for invalidating the subpoena. Trump S. Ct. Br. 20,
38–40. The Court, though, made no mention of confidentiality
when enumerating its criteria for evaluating the validity of a
congressional subpoena for presidential information. The
Court, as discussed, did call for consideration of “the burdens
imposed on the President by a subpoena.” Mazars, 140 S. Ct.
at 2036. But it described that concern as generally relating to
“burdens on the President’s time and attention stemming from
judicial process and litigation,” id., not to confidentiality-
related consequences of disclosure.
64
The Committee offers a sound justification for its desire to
preserve the flexibility to share information it obtains under the
subpoena with other legislators. The freedom to share that
information could prove important in efforts to persuade other
lawmakers of the necessity of proposed legislation. After all,
the purpose of a congressional subpoena is to obtain
information that Congress can use to craft, debate, and enact
legislation. See Watkins, 354 U.S. at 187, 197. A categorical
rule that Congress must limit access to presidential documents
to a small subset of legislators could undermine its ability to
carry out those functions. And courts are ill-equipped to
determine which specific legislators might require information
for Congress to give effective consideration to proposed
legislation.
What about disclosure of the information to the general
public? Before our court, the Committee has expressed no
specific desire to disclose President Trump’s documents to the
broader public, instead justifying its refusal to guarantee
confidentiality solely based on an interest in sharing
information with other lawmakers. Even if the Committee did
desire to share some portion of the information it receives with
the public, that would not automatically invalidate the
subpoena.
As the Supreme Court explained in its opinion in this case,
it is Congress’s “proper duty” to “look diligently into every
affair of government and to talk much about what it sees.”
Mazars, 140 S. Ct. at 2033 (quoting Rumely, 345 U.S. at 43).
Legislators serve in that way as “the eyes and the voice” of their
constituents. Id. And in our democratic system, Congress’s
work is typically done in public view. Long ago, moreover,
this court explained that it cannot dictate how Congress uses
information: “If a court could say to the Congress that it could
use or could not use information in its possession, the
65
independence of the Legislature would be destroyed and the
constitutional separation of the powers of government
invaded.” Hearst v. Black, 87 F.2d 68, 71–72 (D.C. Cir. 1936).
Of course, the political branches, including a former
President, are free to work out confidentiality arrangements,
and we have no reason to doubt that they would honor such
agreements. And those sorts of negotiations can continue to
take place during the process of enforcing a subpoena directed
toward a President or others within the Executive Branch. See
Mazars, 140 S. Ct. at 2030. For instance, when a House
Committee voted to hold a Cabinet Secretary in contempt for
withholding documents subject to a congressional subpoena
during the Reagan presidency, the parties worked out an
“innovative compromise” under which the disputed documents
would be made available for a limited period, without access
by non-Members of Congress. Id.
The fact that Congress and the President have traditionally
negotiated over the confidentiality of presidential records
suggests that confidentiality is not a bright-line constitutional
requirement. As for the courts, it is not the Judiciary’s typical
role to police Congress’s handling of information in its
possession. We anticipate that the Committee will handle any
records ultimately obtained with due regard for their potentially
sensitive nature. But, like the Supreme Court before us, we do
not impose a requirement of confidentiality as a blanket
precondition to sustaining the subpoena.
D.
In his final argument for categorical invalidation of the
Committee’s subpoena, President Trump contends that the
Committee should have asked him directly for his financial
records before issuing a third-party subpoena to his accountant.
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And he insinuates that the Committee directed its subpoena to
Mazars as a ploy to sidestep the typical accommodation
process for resolving congressional demands for presidential
documents. See Mazars, 140 S. Ct. at 2029–30. He thus
suggests that we should give the parties an opportunity to
engage in further negotiations before sustaining any portion of
the subpoena.
As an initial matter, the Committee was entitled to seek
President Trump’s personal financial records from a third
party. Nothing in the Supreme Court’s decision in this case
suggests that the Constitution prohibits third-party subpoenas
for a President’s documents. If Congress were categorically
barred from seeking a President’s records from third parties,
the Supreme Court presumably would have said so, especially
given that President Trump made a similar argument before the
Court. Trump S. Ct. Reply Br. 7.
As for whether to order the parties to engage in further
settlement negotiations, we recognize that disputes over
congressional requests for a President’s records have
traditionally “been hashed out in the hurly-burly, the give-and-
take of the political process between the legislative and the
executive.” Mazars, 140 S. Ct. at 2029 (quotation marks and
citation omitted). But while the accommodation process is the
preferred method for settling disputes between the political
branches over access to the President’s documents, the
Supreme Court made clear that, when negotiations fail to
resolve the matter, courts may step in to decide the interbranch
dispute. The Mazars test inherently contemplates a situation in
which the accommodation process fails to produce an amicable
resolution and the dispute enters the courts.
Here, we see no reason to order the parties to negotiate
further before we assess the validity of the Committee’s
67
subpoena. President Trump filed this lawsuit in April 2019,
and the parties have had ample opportunity to arrive at an
agreement in the years since. In June 2021, the district court
directed the parties to “assess the possibility of an
accommodation,” but those efforts proved unsuccessful. 560
F. Supp. 3d at 58. Each side blames the other for the failure of
the negotiations. President Trump contends that the
Committee unreasonably demanded the ability to take physical
possession of his papers. The Committee counters that it made
“certain offers of confidentiality,” but that President Trump
insisted on unworkable restrictions on dissemination within
Congress. House Reply Br. 24.
The accommodation process has proven unsuccessful. It
now falls to this court to resolve the dispute in accordance with
the framework laid down by the Supreme Court and based on
the current record. This opinion endeavors to do so.
* * * * *
For the foregoing reasons, we affirm in part and reverse in
part the judgment of the district court and remand for further
proceedings consistent with this opinion.
So ordered.
ROGERS, Circuit Judge, concurring: Today, the court
applies the Supreme Court’s framework to assess the validity
of a congressional subpoena issued to a sitting President,
announced in Trump v. Mazars, 140 S. Ct. 2019 (2020), to a
congressional subpoena to a former President. This necessarily
implicates a number of difficult questions of first impression.
See Trump v. Thompson, 20 F.4th 10, 41–42 (D.C. Cir. 2021);
Trump v. Mazars USA LLP, 560 F. Supp. 3d 47, 62–66 (D.D.C.
2021). Based on the record before it, the court has required the
subpoena be narrowed. Its narrowing balances the Committee’s
legislative purposes in requesting certain information from
former President Trump, as explained in the two memoranda
of the Committee chairperson, against the separation-of-
powers concerns surrounding a congressional subpoena first
issued to a now-former President during his time in office and
subsequently reissued upon his departure.
Given the sensitive nature of the questions of first
impression presented here, the parties may seek rehearing
because the court has overlooked or misunderstood the
Committee’s legislative need much less unduly interfered with
congressional or presidential prerogatives. Or the parties may
retreat to their extreme positions urged upon the court. See Op.
at 14. Although a court applying Mazars to a sitting President
must “insist on a subpoena no broader than reasonably
necessary,” Mazars, 140 S. Ct. at 2036, here the court’s
narrowing has focused on the period in which President Trump
was in office.
In the event that the court, in applying the “reasonably
necessary” standard, see id., has overlooked or misconstrued
the relevance of certain information sought by the Committee
to its legislative aims, the Committee may clarify its need for
additional documents through supplemental declarations or
affidavits. See, e.g., Op. at 40. So too, former President Trump
may view the court to have unduly narrowed his executive
prerogatives or overstated the relevance of the requested
2
documents to the Committee’s legislative goals, and he may
elaborate in supplemental submissions on why the narrowed
subpoena violates the “reasonably necessary” standard. The
court retains jurisdiction to modify the scope of the subpoena.
See id. at 57–59. Any supplements to the record may be
presented through a petition for rehearing or a petition for
rehearing en banc. See D.C. Cir. R. 35.