SUPREME COURT OF THE UNITED STATES
Nos. 19–715 and 19–760
DONALD J. TRUMP, et al., PETITIONERS
MAZARS USA, LLP, et al.
on writ of certiorari to the united states
court of appeals for the district of columbia circuit
DONALD J. TRUMP, et al., PETITIONERS
DEUTSCHE BANK AG, et al.
on writ of certiorari to the united states
court of appeals for the second circuit
[July 9, 2020]
Justice Thomas, dissenting.
Three Committees of the U. S. House of
Representatives issued subpoenas to several accounting and
financial firms to obtain the personal financial records of the
President, his family, and several of his business entities. The
Committees do not argue that these subpoenas were issued pursuant
to the House’s impeachment power. Instead, they argue that
the subpoenas are a valid exercise of their legislative powers.
Petitioners challenge the validity of these
subpoenas. In doing so, they call into question our precedents to
the extent that they allow Congress to issue legislative subpoenas
for the President’s private, nonofficial documents. I would
hold that Congress has no power to issue a legislative subpoena for
private, nonofficial documents—whether they belong to the
President or not. Congress may be able to obtain these documents as
part of an investigation of the President, but to do so, it must
proceed under the impeachment power. Accordingly, I would reverse
the judgments of the Courts of Appeals.
I begin with the Committees’ claim that
the House’s legislative powers include the implied power to
issue legislative subpoenas. Although the Founders understood that
the enumerated powers in the Constitution included implied powers,
the Committees’ test for the scope of those powers is too
“The powers of the legislature are
defined, and limited; and that those limits may not be mistaken, or
forgotten, the constitution is written.” Marbury
, 1 Cranch 137, 176 (1803). The structure of limited
and enumerated powers in our Constitution denotes that “[o]ur
system of government rests on one overriding principle: All power
stems from the consent of the people.” U. S. Term
, 846 (1995) (Thomas, J., dissenting). As a result,
Congress may exercise only those powers given by the people of the
States through the Constitution.
The Founders nevertheless understood that an
enumerated power could necessarily bring with it implied powers.
The idea of implied powers usually arises in the context of the
Necessary and Proper Clause, which gives Congress the power to
“make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof.” Art. I, §8,
cl. 18. As I have previously explained, the Necessary and Proper
Clause simply “made explicit what was already implicit in the
grant of each enumerated power.” United States
, 560 U.S.
, 161 (2010) (dissenting opinion). That is, “the grant
of a general power includes the grant of incidental powers for
carrying it out.” Bray, “Necessary and Proper”
and “Cruel and Unusual”: Hendiadys in the Constitution,
102 Va. L. Rev. 687, 741 (2016).
The scope of these implied powers is very
limited. The Constitution does not sweep in powers “of
inferior importance, merely because they are inferior.”
, 4 Wheat. 316, 408 (1819).
Instead, Congress “can claim no powers which are not granted
to it by the constitution, and the powers actually granted, must be
such as are expressly given, or given by necessary
v. Hunter’s Lessee
1 Wheat. 304, 326 (1816). In sum, while the Committees’
theory of an implied power is not categorically wrong, that power
must be necessarily implied from an enumerated power.
At the time of the founding, the power to
subpoena private, nonofficial documents was not included by
necessary implication in any of Congress’ legislative powers.
This understanding persisted for decades and is consistent with the
Court’s first decision addressing legislative subpoenas,
, 103 U.S.
(1881). The test that this Court created in McGrain
, 273 U.S.
(1927), and the majority’s variation on that standard
today, are without support as applied to private, nonofficial
The Committees argue that Congress wields the
same investigatory powers that the British Parliament did at the
time of the founding. But this claim overlooks one of the
fundamental differences between our Government and the British
Government: Parliament was supreme. Congress is not.
I have previously explained that “the
founding generation did not subscribe to Blackstone’s view of
parliamentary supremacy.” Department of Transportation
v. Association of American Railroads
, 575 U.S. 43, 74 (2015)
(opinion concurring in judgment). “Parliament’s
violations of the law of the land had been a significant complaint
of the American Revolution.” Id.,
“And experiments in legislative supremacy in the States had
confirmed the idea that even the legislature must be made subject
to the law.” Id.
, at 75.
James Wilson, signer of the Constitution and
future Justice, explained this difference to the Pennsylvania
ratifying convention: “Blackstone will tell you, that in
Britain [the supreme power] is lodged in the British Parliament;
and I believe there is no writer on the other side of the
Atlantic” who thought otherwise. 2 Documentary History of the
Ratification of the Constitution 471 (M. Jensen ed. 1976)
(Documentary History). In the United States, however, “the
supreme, absolute, and uncontrollable authority, remains
with the people.” Id.
, at 472. And “[t]he
Constitution plainly sets forth the ‘few and defined’
powers that Congress may exercise.” Comstock
U. S., at 159 (Thomas, J., dissenting); see also
, 4 Wheat., at 405; Marbury
, 1 Cranch, at
176. This significant difference means that Parliament’s
powers and Congress’ powers are not necessarily the same.
In fact, the plain text of the Constitution
makes clear that they are not. The Constitution expressly denies to
Congress some of the powers that Parliament exercised. Article I,
for example, prohibits bills of attainder, §9, cl. 3,
which Parliament used to “sentenc[e] to death one or more
specific persons.” United States
, 441 (1965). A legislature can hardly be considered supreme
if it lacks the power to pass bills of attainder, which Justice
Story called the “highest power of sovereignty.” 3
Commentaries on the Constitution of the United States §1338,
p. 210 (1833). Relatedly, the Constitution prohibits ex post
laws, §9, cl. 3, reinforcing the fact that
Congress’ power to punish is limited.[2
] And in a system in which Congress is not supreme,
the individual protections in the Bill of Rights, such as the
prohibition on unreasonable searches and seizures, meaningfully
constrain Congress’ power to compel documents from private
citizens. Cf. 1 St. George Tucker, Blackstone’s Commentaries
203–205, n. § (1803); see also D. Currie, The
Constitution in Congress: The Federalist Period, 1789–1801,
p. 268 (1997).
Court’s first decision on the constitutionality of
legislative subpoenas—emphasized that Parliament had more
powers than Congress. There, the congressional respondents relied
on Parliament’s investigatory power to support a legislative
subpoena for testimony and documents. The Court rejected the
analogy because the judicial powers of the House of
Commons—the lower house of Parliament—exceeded the
judicial functions of the House of Representatives.
at 189. At bottom, Kilbourn
recognized that legislative supremacy was decisively rejected in
the framing and ratification of our Constitution, which casts doubt
on the Committees’ claim that they have power to issue
legislative subpoenas to private parties.
The subpoenas in these cases also cannot be
justified based on the practices of 18th-century American
supporting the Committees resist this
conclusion, but the examples they cite materially differ from the
legislative subpoenas at issue here.
cite investigations in which
legislatures sought to compel testimony from government officials
on government matters. The subjects included military affairs,
taxes, government finances, and the judiciary. Potts, Power of
Legislative Bodies To Punish for Contempt, 74 U. Pa.
L. Rev. 691, 708, 709, 710, 716–717 (1926) (Potts); see
also E. Eberling, Congressional Investigations: A Study of the
Origin and Development of the Power of Congress To Investigate and
Punish for Contempt 18 (1928) (Eberling). But the information
sought in these examples was official, not private. Underscoring
this distinction, at least one revolutionary-era State Constitution
permitted the legislature to “call for all public or
papers and records, and send for persons, whom they
may judge necessary in the course of their inquiries, concerning
affairs relating to the public interest.” Md. Const.,
Art. X (1776) (emphasis added).
Second, 18th-century legislatures conducted
nonlegislative investigations. For example, the New York colonial
legislature tasked one committee with investigating a nuisance
complaint and gave it the “power to send for persons, papers
and records.” Eberling 18; see also id.
, at 19
(investigation of a government contract obtained by alleged
wrongdoing); Potts 716 (investigation of armed resistance). But to
describe this category is to distinguish it. Here, the Committees
assert only a legislative purpose.
Third, colonial and state legislatures
investigated and punished insults, libels, and bribery of members.
For example, the Pennsylvania colonial assembly investigated
“injurious charges, and slanderous Aspersions against the
Conduct of the late Assembly” made by two individuals.
, at 710 (internal quotation marks omitted); see also
, at 717; Eberling 20–21. But once again, to
describe this category is to distinguish it because the subpoenas
here are justified only as incidental to the power to legislate,
not the power to punish libels or bribery. In short, none of the
examples from 18th-century colonial and state history support a
power to issue a legislative subpoena for private, nonofficial
Given that Congress has no exact precursor in
England or colonial America, founding-era congressional practice is
especially informative about the scope of implied legislative
powers. Thus, it is highly probative that no founding-era Congress
issued a subpoena for private, nonofficial documents. Although
respondents could not identify the first such legislative subpoena
at oral argument, Tr. of Oral Arg. 56, Congress began issuing them
by the end of the 1830s. However, the practice remained
controversial in Congress and this Court throughout the first
century of the Republic.
In an attempt to establish the power of
Congress to issue legislative subpoenas, the Committees point to an
investigation of Government affairs and an investigation under one
of Congress’ enumerated privileges. Both precedents are
materially different from the subpoenas here.
In 1792, the House authorized a Committee to
investigate a failed military expedition led by General Arthur St.
Clair. 3 Hinds’ Precedents of the House of Representatives of
the United States §1725, pp. 79–80 (1907) (Hinds). The
Committee was “empowered to call for such persons, papers and
records as may be necessary to assist their inquiries.”
But the Committee never subpoenaed private,
nonofficial documents, which is telling. Whereas a subpoena for
Government documents does not implicate concerns about property
rights or the Fourth Amendment “right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,” a subpoena for private,
nonofficial documents raises those questions. Thus, the power to
subpoena private documents, which the Committee did not exercise,
is a far greater power and much less likely to be implied in
Congress’ legislative powers.
In 1832, the House investigated Representative
Samuel Houston for assaulting Representative William Stanberry.
Stanberry had accused Houston of collusion with Secretary of War
John Eaton in connection with a bid for a Government contract, and
the House initiated an investigation into the truthfulness of
Stanberry’s accusation. 8 Cong. Deb. 2550, 3022–3023
(1832). The House subpoenaed witnesses to testify, and one of them
brought official correspondence between the Secretary of War and
the President. H. R. Rep. No. 502, 22d Cong., 1st Sess. 64,
66–67 (1832). But official documents are obviously different
from nonofficial documents. Moreover, the subpoenas were issued
pursuant to the House’s enumerated privilege of punishing its
own Members, Art. I, §5, not as part of its legislative
powers. Because these subpoenas were not issued pursuant to a
legislative power, they do not aid the Committees’ case.
As late as 1827, a majority of the House
declined to authorize the Committee on Manufactures to subpoena
documents, amid concerns that it was unprecedented. During the
debate over the resolution, one opponent remarked that
“[t]here is no instance under this Government, within my
recollection, where this power has been given for the mere purpose
of enabling a committee of this House to adjust the details of an
ordinary bill.” 4 Cong. Deb. 865–866 (Rep. Strong); see
, at 862 (referring to “authority to bring any
citizens of the United States . . . whom they might
choose to send for, and compel them to give answers to every
inquiry which should be addressed to them” as “very
extraordinary”). Another opponent stated that the Committee
had requested a power that had “not heretofore been thought
necessary to enable that Committee to acquire correct
, at 866 (Rep. Storrs). A third
called it “not only novel and extraordinary, but wholly
, at 874 (Rep. Stewart); see also
, at 884–885 (Rep. Wright). No supporter of the
resolution offered a specific precedent for doing so, and the House
ultimately authorized the Committee to send for persons only.
, at 889–890.
This debate is particularly significant because
of the arguments made by both sides. Proponents made essentially
the same arguments the Committees raise here—that the power
to send for persons and papers was necessary to inform Congress as
it legislated. Id.
, at 871 (Rep. Livingston). Opponents
argued that this power was not part of any legislative function.
, at 865–866 (Rep. Strong). They also argued that
the House of Commons provided no precedent because Congress was a
body of limited and enumerated powers. Id.
, at 882 (Rep.
Wood). And in the end, the opponents prevailed. Thus, through 1827,
the idea that Congress had the implied power to issue subpoenas for
private documents was considered “novel,”
“extraordinary,” and “unnecessary.”
, at 874.
By the end of the 1830s, Congress began
issuing legislative subpoenas for private, nonofficial documents.
See Eberling 123–126. Still, the power to demand information
from private parties during legislative investigations remained
In 1832, the House authorized a Committee to
“inspect the books, and to examine into the proceedings of
the Bank of the United States, to report thereon, and to report
whether the provisions of its charter have been violated or
not.” 8 Cong. Deb. 2160, 2164. The House gave the Committee
“power to send for persons and papers.” Id.,
The power to inspect the books of the Bank of the
United States is not itself a clear example of a legislative
subpoena for private, nonofficial documents, because the Bank was a
federally chartered corporation and was required to allow Congress
to inspect its books. App. to 8 Cong. Deb. 54 (1833). The
investigation itself appears to have ranged more widely, however,
leading Congressman John Quincy Adams to criticize
“investigations which must
necessarily implicate not only the president and directors of the
bank, and their proceedings, but the rights, the interests, the
fortunes, and the reputation of individuals not responsible for
those proceedings, and whom neither the committee nor the House had
the power to try, or even accuse before any other tribunal.”
Adams continued that such an investigation
“bears all the exceptionable and odious properties of general
warrants and domiciliary visits.” Ibid.
objected that the Committee’s investigation of the Bank was
tantamount to punishment and thus was in tension with the
constitutional prohibitions on “passing any bill of attainder
[or] ex post facto
at 60. Thus, even
when Congress authorized a Committee to send for private papers,
the constitutionality of doing so was questioned.
An 1859 Senate investigation, which the Court of
Appeals cited as precedent, underscores that legislative subpoenas
to private parties were a 19th-century innovation. Following
abolitionist John Brown’s raid at Harper’s Ferry,
Senate Democrats opened an investigation apparently designed to
embarrass opponents of slavery. As part of the investigation, they
called private individuals to testify. Senator Charles Sumner, a
leading opponent of slavery, railed against the proceedings:
“I know it is said that this power
is necessary in aid of legislation
. I deny the necessity.
, at times, it may be; but necessary
. We do not drag the members of the Cabinet or the
President to testify before a committee in aid of
; but I say, without hesitation, they can claim no
immunity which does not belong equally to the humblest
citizen.” Cong. Globe, 36th Cong., 1st Sess., 3007
Sumner also addressed the matter of
Parliament’s powers, calling them “more or less
inapplicable” because “[w]e live under a written
Constitution, with certain specified powers; and all these are
restrained by the tenth amendment.” Ibid.
as for Adams, the power to issue legislative subpoenas to private
parties was a “dangerous absurdity” with no basis in
the text or history of the Constitution. Ibid.
When this Court first addressed a legislative
subpoena, it refused to uphold it. After casting doubt on
legislative subpoenas generally, the Court in Kilbourn
, 103 U.S.
, held that the subpoena at issue was unlawful because it
sought to investigate private conduct.
In 1876, the House created a special Committee
to investigate the failure of a major bank, which caused the loss
of federal funds and related to financial speculation in the
District of Columbia. Id.
, at 171. The Committee issued a
subpoena to Kilbourn, an employee of the bank. Id.,
When he refused to answer questions or produce documents, the House
held him in contempt and arrested him. Id.
, at 173. After
his release, he sued the Speaker, several Committee members, and
the Sergeant at Arms for damages.
The Court discussed the arguments for an
“impli[ed]” power to issue legislative subpoenas.
, at 183. As the Court saw it, there were two arguments:
“1, its exercise by the House of Commons of England
. . . and, 2d, the necessity of such a power to enable
the two Houses of Congress to perform the duties and exercise the
powers which the Constitution has conferred on them.”
The Court rejected the first argument. It found
“no difference of opinion as to [the] origin” of the
House of Commons’ subpoena power:
“[T]he two Houses of Parliament were
each courts of judicature originally, which, though divested by
usage, and by statute, probably, of many of their judicial
functions, have yet retained so much of that power as enables them,
like any other court, to punish for a contempt of these privileges
and authority that the power rests.” Id.,
Even after the division of Parliament into two
houses, “[t]o the Commons was left the power of impeachment,
and, perhaps, others of a judicial character, and jointly they
exercised, until a very recent period, the power of passing bills
of attainder for treason and other high crimes which are in their
nature punishment for crime declared judicially by the High Court
of Parliament.” Ibid.
By contrast, the House of
Representatives “is in no sense a court, . . .
exercises no functions derived from its once having been a part of
the highest court of the realm,” and has no judicial
functions beyond “punishing its own members and determining
their election.” Id.
, at 189. The Court thus rejected
the notion that Congress inherited from Parliament an implied power
to issue legislative subpoenas.
The Court did not reach a conclusion on the
second theory that a legislative subpoena power was necessary for
Congress to carry out its legislative duties. But it observed that,
based on British judicial opinions, not “much aid [is] given
to the doctrine, that this power exists as one necessary to enable
either House of Congress to exercise successfully their function of
The Court referred to a collection
of 18th- and 19th-century English decisions grounding the
Parliamentary subpoena power in that body’s judicial origins.
at 184–189 (citing Burdett
, 104 Eng. Rep. 501 (K. B. 1811); Brass
, 95 Eng. Rep. 1005 (C. P. 1771);
, 112 Eng. Rep. 1112 (K. B.
1839); and Kielley
, 13 Eng. Rep. 225
(P. C. 1841)). The Court placed particular emphasis on
, in which the Privy Council held that the
Legislative Assembly of Newfoundland lacked a power to punish for
contempt. The Privy Council expressly stated that the House of
Commons could punish for contempt
“ ‘not because it is a
representative body with legislative functions, but by virtue of
ancient usage and prescription . . . which forms a part
of the common law of the land, and according to which the High
Court of Parliament before its division, and the Houses of Lords
and Commons since, are invested with many privileges, that of
punishment for contempt being one.’ ”
, 103 U. S., at 188–189.
This Court also noted that the Privy Council
“discusse[d] at length the necessity of this power in a
legislative body for its protection, and to enable it to discharge
its law-making functions, and decide[d] against the
, at 189. Although the Court did not
have occasion to decide whether the legislative subpoena in that
case was necessary to the exercise of Congress’ legislative
powers, its discussion strongly suggests the subpoena was
The Court instead based its decision on the fact
that the subpoena at issue “ma[de] inquiry into the private
affairs of the citizen.” Id.
, at 190. Such a power,
the Court reasoned, “is judicial and not legislative,”
, at 193, and “no judicial power is vested in the
Congress or either branch of it, save in the cases” of
punishing Members, compelling Members’ attendance, judging
elections and qualifications, and impeachment and trial,
, at 192–193. Notably, the Court found no
indication that the House “avowed to impeach the
secretary,” or else “the whole aspect of the case would
have been changed.” Id.
, at 193. Even though the Court
narrowly, it clearly entertained
substantial doubts about the constitutionality of legislative
subpoenas for private documents.
Nearly half a century later, in McGrain
, the Court reached the question reserved in
—whether Congress has the power to issue
legislative subpoenas. It rejected Kilbourn
reasoning and upheld the power to issue legislative subpoenas as
long as they were relevant to a legislative power. Although
involved oral testimony, the Court has since
extended this test to subpoenas for private documents. The
Committees rely on McGrain
, but this line of cases
misunderstands both the original meaning of Article I and the
historical practice underlying it.
Shortly before Attorney General Harry
Daugherty resigned in 1924, the Senate opened an investigation into
his “ ‘alleged failure’ ” to
prosecute monopolists, the protagonists of the Teapot Dome scandal,
and “ ‘many others.’ ”
, 273 U. S.
, at 151. The investigating
Committee issued subpoenas to Daugherty’s brother, Mally, who
refused to comply and was arrested in Ohio for failure to testify.
, at 152–154. Mally petitioned for a writ of habeas
corpus, and the District Court discharged him, based largely on
. Ex parte Daugherty
, 299 F. 620 (SD
Ohio 1924). The Deputy Sergeant at Arms who arrested Mally directly
appealed to this Court, which reversed.
The Court concluded that, “[i]n actual
legislative practice[,] power to secure needed information by
[investigating and compelling testimony] has long been treated as
an attribute of the power to legislate.” McGrain
U. S., at 161. The Court specifically found that “[i]t
was so regarded in the British Parliament and in the Colonial
legislatures before the American Revolution” and that
“a like view has prevailed and been carried into effect in
both houses of Congress and in most of the state
But the authority cited by the
Court did not support that proposition. The Court cited the 1792
investigation of St. Clair’s defeat, in which it appears no
subpoena was issued, supra,
at 7–8, and the 1859
Senate investigation of John Brown’s raid on Harper’s
Ferry, which led to an impassioned debate. 273 U. S., at
162–164. Thus, for the reasons explained above, the examples
relied on in McGrain
are materially different from issuing a
legislative subpoena for private, nonofficial documents. See
at 7, 10–11.[5
The Court acknowledged Kilbourn,
erroneously distinguished its discussion regarding the
constitutionality of legislative subpoenas as immaterial dicta.
, at 170–171 (quoting
at 189). The Court concluded that
“the two houses of Congress, in their separate relations,
possess not only such powers as are expressly granted to them by
the Constitution, but such auxiliary powers as are necessary and
appropriate to make the express powers effective.”
Instead of relying on Kilbourn
developed a test that rested heavily on
functional considerations. The Court wrote that “[a]
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
legislation is intended to affect or change.” 273 U. S.,
at 175. Because “mere requests for such information often are
unavailing, and also that information which is volunteered is not
always accurate or complete,” “some means of compulsion
are essential to obtain what is needed.” Ibid.
The Court thus concluded that Congress could
issue legislative subpoenas, provided that “the purpose for
which the witness’s testimony was sought was to obtain
information in aid of the legislative function.” Id.,
at 176. The Court has since applied this test to subpoenas for
papers without any further analysis of the text or history of the
Constitution. See Eastland
v. United States
, 421 U.S.
, 504–505 (1975). The majority today modifies that
test for cases involving the President, but it leaves the core of
the power untouched. Ante
, at 18–20.
The opinion in McGrain
foundation in text or history with respect to subpoenas for
private, nonofficial documents. It fails to recognize that
Congress, unlike Parliament, is not supreme. It does not cite any
specific precedent for issuing legislative subpoenas for private
documents from 18th-century colonial or state practice. And it
identifies no founding-era legislative subpoenas for private
, the Court has pared back
Congress’ authority to compel testimony and documents. It has
held that certain convictions of witnesses for contempt of Congress
violated the Fifth Amendment. See Watkins
, 354 U.S.
(1957) (Due Process Clause); Quinn
, 349 U.S.
(1955) (Self-Incrimination Clause); see also
v. United States
, 153–154 (1959) (Black, J., dissenting). It has
also affirmed the reversal of a conviction on the ground that the
Committee lacked authority to issue the subpoena. See United
, 345 U.S.
(1953). And today, it creates a new four-part, nonexhaustive
test for cases involving the President. Ante
18–20. Rather than continue our trend of trying to compensate
, I would simply decline to apply it in these
cases because it is readily apparent that the Committees have no
constitutional authority to subpoena private, nonofficial
If the Committees wish to investigate alleged
wrongdoing by the President and obtain documents from him, the
Constitution provides Congress with a special mechanism for doing
It is often acknowledged, “if only
half-heartedly honored,” that one of the motivating
principles of our Constitution is the separation of powers.
Association of American Railroads
, 575 U. S., at 74
(Thomas, J., concurring in judgment). The Framers recognized that
there are three forms of governmental power: legislative, executive
and judicial. The Framers also created three branches: Congress,
the President, and the Judiciary. The three powers largely align
with the three branches. To a limited extent, however, the
Constitution contains “a partial intermixture of those
departments for special purposes.” The Federalist No. 66, p.
401 (C. Rossiter ed. 1961) (A. Hamilton). One of those special
purposes is the system of checks and balances, and impeachment is
one of those checks.
The Constitution grants the House “the
sole Power of Impeachment,” Art. I, §2, cl. 5, and
it specifies that the President may be impeached for
“Treason, Bribery, or other high Crimes and
Misdemeanors,” Art. II, §4. The founding generation
understood impeachment as a check on Presidential abuses. In
response to charges that impeachment “confounds legislative
and judiciary authorities in the same body,” Alexander
Hamilton called it “an essential check in the hands of
[Congress] upon the encroachments of the executive.” The
Federalist No. 66, at 401–402. And, in the Virginia
ratifying convention, James Madison identified impeachment as a
check on Presidential abuse of the treaty power. 10 Documentary
The power to impeach includes a power to
investigate and demand documents. Impeachments in the States often
involved an investigation. In 1781, the Virginia Legislature began
what Edmund Randolph called an “impeachment” of
then-Governor Thomas Jefferson. P. Hoffer & N. Hull,
Impeachment in America, 1635–1805, p. 85 (1984). This
“most publicized and far-reaching impeachment inquiry for
incompetence” included an “ ‘inquir[y] into
the conduct of the executive of this state for the last two
months.’ ” Ibid.
The legislatures of New
, at 92, and Pennsylvania, id.
93–95, similarly investigated officials through impeachment
Reinforcing this understanding, the founding
generation repeatedly referred to impeachment as an
“inquest.” See 4 Debates on the Constitution 44 (J.
Elliot ed. 1854) (speech of A. Maclaine) (referring to the House as
“the grand inquest of the Union at large”); The
Federalist No. 65, at 397 (Hamilton) (referring to the House
as “a method of National Inquest”); 2 Records of the
Federal Convention 154 (M. Farrand ed. 1911) (record from the
Committee of Detail stating that “[t]he House of
Representatives shall be the grand Inquest of this Nation; and all
Impeachments shall be made by them”); see also Mass. Const.,
ch. 1, §3, Art. VI (1780) (referring to the Massachusetts
House of Representatives as “the Grand Inquest of this
Commonwealth”). At the time, an “inquest”
referred to an “[i]nquiry, especially that made by a
Jury” or “the Jury itself.” N. Bailey, Universal
Etymological Dictionary (22d ed. 1770).
The Founders were also aware of the
contemporaneous impeachment of Warren Hastings in England, in which
the House of Commons heard witnesses before voting to impeach. P.
Marshall, The Impeachment of Warren Hastings 40–41, 58
(1965). In the first impeachment under the new Constitution,
Congressmen cited the Hastings impeachment as precedent for several
points, including the power to take testimony before impeaching. 7
Annals of Cong. 456 (1797) (Rep. Rutledge); id.
, at 459
(Rep. Sitgreaves); id.,
at 460 (Rep. Gallatin).
Other evidence from the 1790s confirms that the
power to investigate includes the power to demand documents. When
the House of Representatives sought documents related to the Jay
Treaty from President George Washington, he refused to provide them
on the ground that the House had no legislative powers relating to
the ratification of treaties. 5 Annals of Cong. 760–762
(1796). But he carefully noted that “[i]t does not occur that
the inspection of the papers asked for can be relative to any
purpose under the cognizance of the House of Representatives,
except that of an impeachment; which the resolution has not
at 760. In other words, he understood
that the House can demand documents as part of its power to
This Court has also long recognized the power of
the House to demand documents. Even as it questioned the power to
issue legislative subpoenas, the Court in Kilbourn
acknowledged the ability to “compel the attendance of
witnesses, and their answer to proper questions” when
“the question of . . . impeachment is before either
body acting in its appropriate sphere on that subject.” 103
U. S., at 190.
I express no view today on the boundaries of the
power to demand documents in connection with impeachment
proceedings. But the power of impeachment provides the House with
authority to investigate and hold accountable Presidents who commit
high crimes or misdemeanors. That is the proper path by which the
Committees should pursue their demands.
For nearly two centuries, until the 1970s,
Congress never attempted to subpoena documents to investigate
wrongdoing by the President outside the context of impeachment.
Congress investigated Presidents without opening impeachment
proceedings. See, e.g.,
2 Hinds §1596,
at 1043–1045 (President James Buchanan). But it never
issued a subpoena for private, nonofficial documents as part of
those non-impeachment inquiries. Perhaps most strikingly, one
proposed request for official documents from the President was
amended after objection so that it
“ ‘requested’ ” them rather than
“ ‘direct[ing]’ ” the President
to provide them. 3 id.
, §1895, at 193.
Insisting that the House proceed through its
impeachment power is not a mere formality. Unlike contempt, which
is governed by the rules of each chamber, impeachment and removal
constitutionally requires a majority vote by the House and a
two-thirds vote by the Senate. Art. I, §2, cl. 5;
§3, cl. 6. In addition, Congress has long thought it
necessary to provide certain procedural safeguards to officials
facing impeachment and removal. See, e.g.
, 3 Annals of Cong.
903 (1793) (Rep. W. Smith). Finally, initiating impeachment
proceedings signals to the public the gravity of seeking the
removal of a constitutional officer at the head of a coordinate
branch. 940 F.3d 710, 776 (CADC 2019) (Rao, J., dissenting).
* * *
Congress’ legislative powers do not
authorize it to engage in a nationwide inquisition with whatever
resources it chooses to appropriate for itself. The
majority’s solution—a nonexhaustive four-factor test of
uncertain origin—is better than nothing. But the power that
Congress seeks to exercise here has even less basis in the
Constitution than the majority supposes. I would reverse in full
because the power to subpoena private, nonofficial documents is not
a necessary implication of Congress’ legislative powers. If
Congress wishes to obtain these documents, it should proceed
through the impeachment power. Accordingly, I respectfully