House Committees Ask Second Circuit to Proceed on Trump Subpoenas

August 26, 2020

Catherine O'Hagan Wolfe
Clerk of Court
U.S. Court of Appeals for the Second Circuit
Thurgood Marshall United States Courthouse
40 Foley Square
New York, NY 10007

Re: Donald J. Trump et al. v. Deutsche Bank AG et al., No. 19-1540

Pursuant to this Court's August 11, 2020 order, defendants-appellees the Committee on Financial Services and the Permanent Select Committee on Intelligence of the U.S. House of Representatives (collectively, the Committees) submit this letter brief “concerning the appropriate action this Court should take to comply with the Supreme Court's opinion.” Order at 2; see Trump v. Mazars USA, LLP, 140 S. Ct.2019 (2020).

The Committees have taken significant steps in light of Mazars to narrow the scope of the information they seek. Both Committees have considerably narrowed their subpoenas to Deutsche Bank AG. Chairman Schiff issued a memorandum on August 25, narrowing the Intelligence Committee's subpoena to key account holders (and not members of their immediate families), limiting the date range by five additional years (with a few exceptions), and generally limiting the schedule to seek only those records that may reveal the President's foreign financial ties.¹ As before, these documents include some internal Deutsche Bank and other records that do not constitute the President's information and, therefore, are not subject to the test announced in Mazars governing “congressional subpoenas for the President's information.” 140 S. Ct. at 2033 (emphasis added). The Financial Services Committee is narrowing its subpoena to Deutsche Bank even further and now seeks only records that do not constitute the President's information.² In addition, the Financial Services Committee has withdrawn its subpoena to Capital One Financial Corporation entirely.

The Committees have thus gone well beyond what is required under Mazars by limiting their subpoenas to records that are absolutely necessary to their urgent investigations. The passage of time has only heightened the Committees' need for these documents to inform pressing legislative concerns, which include potential counterintelligence risks arising from President Trump's foreign financial ties, foreign interference in the U.S. political process, the safety of bank lending practices, and the threat of money laundering.

The Committees respectfully request that this Court set an expedited briefing schedule on the discrete legal issues pertaining to the revised subpoenas and, on the basis of that briefing, hold that (1) the Intelligence Committee's narrowed subpoena satisfies the Mazars analysis insofar as it seeks the President's information; and (2) the Deutsche Bank records that do not constitute the President's information can be produced without applying Mazars. These are legal questions that this Court is well-positioned to answer based on the public record and without resort to a remand to the district court, which would only further delay the Committees' investigations.

Finally, as this Court's order suggested, counsel for the Committees and the plaintiffs have engaged in preliminary settlement discussions. The Committees do not have any realistic expectation that plaintiffs will withdraw their objections to the production of documents reasonably necessary to the Committee's ongoing legislative work. Nevertheless, the Committees remain fully open to continuing discussions as this case proceeds. The Committees will update the Court on the status of negotiations one week before any supplemental briefs are due.

1. The Supreme Court in Mazars reaffirmed that “[t]he congressional power to obtain information is 'broad' and 'indispensable.'” 140 S. Ct. at 2031 (quoting Watkins v. United States, 354 U.S. 178, 187, 215 (1957)). “It 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). Because Congress's responsibilities “extend to 'every affair of government,'” the Court recognized that “[l]egislative inquiries might involve the President in appropriate cases.” Id. at 2033 (quoting United States v. Rumely, 345 U.S. 41, 43 (1953)).

The Supreme Court thus affirmed that a Congressional committee may issue “a subpoena directed at the President's personal information.” Id. at 2035. To determine whether such a subpoena is “related to, and in furtherance of, a legitimate task of the Congress,” the Supreme Court instructed courts to “perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President.” Id. (internal quotation marks omitted).

The Court set forth four non-exhaustive considerations to guide this legal analysis. “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 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, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better.” Id. And, finally, although the Court reiterated that “burdens on the President's time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines,” the Court made clear that “burdens imposed by a congressional subpoena should be carefully scrutinized.” Id.

To the extent it applies, the Mazars test is satisfied — as full briefing on the merits before this Court will confirm.

2. The Intelligence Committee, although not required to do so by the Supreme Court's opinion, has voluntarily narrowed its subpoena to those “records that are absolutely necessary to satisfy the Committee's investigative needs and to fulfill the Committee's legitimate oversight and legislative objectives.” Add. 2. As described more fully in Chairman Schiff's memorandum, the Intelligence Committee has revised its Deutsche Bank subpoena to:

Add. 11-12; see also Add. 12-15 (setting forth revised document schedule).

The record in this case, as explained in Chairman Schiff's August 25 memorandum, establishes that the Intelligence Committee requires these financial records

Add. 10-11; see also Comms. Br. 14-19, 37-40 (filed July 11, 2019). Chairman Schiff's memorandum details how this narrowed subpoena complies with the Supreme Court's analysis in Mazars. Add. 15-24.³

In addition, the Intelligence Committee expects that some of the subpoenaed records, such as internal Deutsche Bank analyses and records concerning the accounts of the President's adult children, do not constitute the President's information. Production of those records thus does not raise separation-of-powers concerns and is not subject to the Mazars test. This Court has previously held that the record establishes the Intelligence Committee's legitimate legislative purposes in seeking these subpoenaed documents. See Deutsche Bank, 943 F.3d at 658-59.

Consistent with this Court's August 11, 2020 order, the Intelligence Committee met and conferred with plaintiffs' counsel and offered to resolve this case if plaintiffs would agree to withdraw their objections to the production of this more limited set of records. Plaintiffs have not agreed to this narrowly tailored production, nor have they stated any willingness to do so.

The Intelligence Committee, therefore, asks this Court to set an expedited briefing schedule and hold that (1) the Committee's subpoena, as amended, satisfies the Mazars test to the extent it seeks the President's information, and (2) the subpoenaed Deutsche Bank records that do not constitute the President's information can be produced without applying Mazars. These are purely legal questions that this Court is well-positioned to resolve based on the record, as supplemented by Chairman Schiff's memorandum.

A remand to the district court is unnecessary and would only further delay the Intelligence Committee's urgent investigation. This Court's “duty to see that th[is] litigation is swiftly resolved,” Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 511 n.17 (1975), counsels in favor of this Court's disposition of the case without a remand. If this Court nevertheless remands the case, it should do so only for the limited purpose of resolving the questions presented by the narrowed subpoena, issue instructions to resolve those issues expeditiously, and retain jurisdiction for any further appellate proceedings. See NML Capital, Ltd. v. Republic of Argentina, 699 F.3d 246, 265 (2d Cir. 2012).

3. The Financial Services Committee, though again in no way required to do so by the Supreme Court's opinion, is voluntarily withdrawing its subpoena to Capital One. In addition, the Financial Services Committee is significantly narrowing its subpoena to Deutsche Bank to seek only records that do not constitute the President's information. The subpoena therefore is not subject to the Mazars test, and this Court's prior opinion resolved all remaining challenges to it. The Financial Services Committee expects that responsive records will include, for example, internal Deutsche Bank analyses and documents concerning the accounts of the President's adult children who are also plaintiffs here. As this Court previously held, the Financial Services Committee has a legitimate legislative purpose in seeking these documents as part of its industry-wide investigation into financial institutions' compliance with banking laws, as well as the risks of foreign-money laundering and certain lending practices. See Deutsche Bank, 943 F.3d at 657-59.

Consistent with this Court's August 11, 2020 order, the Financial Services Committee met and conferred with plaintiffs' counsel in an attempt to resolve this dispute, but plaintiffs have thus far not indicated any willingness to withdraw their objections to this narrowed set of subpoenaed documents.

The Financial Services Committee therefore asks this Court to set an expedited briefing schedule and hold that the subpoenaed Deutsche Bank records that do not constitute the President's information fall outside the Mazars test. This is a purely legal question that this Court is well positioned to resolve based on the existing public record.

A remand to the district court is unnecessary and would only further delay the Financial Services Committee's urgent investigation. See Eastland, 421 U.S. at 511 n.17. If this Court nevertheless remands the case, it should do so only for the limited purpose of resolving the question presented by the narrowed subpoena, issue instructions to resolve that issue expeditiously, and retain jurisdiction for any further appellate proceedings. See NML Capital, Ltd., 699 F.3d at 265.

4. The Committees and plaintiffs attempted to negotiate a joint proposal as to how this case should proceed but were unable to reach agreement. The Intelligence Committee and the Financial Services Committee, therefore, respectfully request that this Court set an expedited briefing schedule — with simultaneous supplemental briefs due three weeks from this Court's order setting a schedule, and simultaneous response briefs due two weeks later — on the legal issues presented by the Committees' significantly narrowed subpoenas.

Respectfully submitted,

Douglas N. Letter
General Counsel
Todd B. Tatelman
Megan Barbero
Josephine Morse
Adam A. Grogg
William E. Havemann
Jonathan B. Schwartz

Office of General Counsel
U.S. House of Representatives
219 Cannon House Office Building
Washington, D.C. 20515
(202) 225-9700
douglas.letter@mail.house.gov