Legal Sidebari

Congressional Investigation of the Trump
Indictment
April 19, 2023
Manhattan District Attorney Alvin Bragg, Jr. recently asked a federal district court to declare invalid a
House Judiciary Committee (Committee) deposition subpoena issued as part of an inquiry into the
indictment of former President Trump. The disputed subpoena was issued not to Mr. Bragg but to a
former employee of the District Attorney’s office, Mark Pomerantz. Mr. Bragg’s suit names the
Committee, Chairman Jim Jordan, and Mr. Pomerantz as defendants and seeks a court order enjoining Mr.
Pomerantz from complying with the subpoena, partly on the ground that the Committee lacks the type of
legitimate legislative purpose that is necessary to support a congressional subpoena. In making that
argument, the complaint asserts that the Committee failed to satisfy the standards established by the
Supreme Court in Trump v. Mazars—a case that applied a new and heightened scrutiny to congressional
subpoenas for presidential records. A federal judge has scheduled a hearing in the case for April 19.
This Sidebar addresses two aspects of Mr. Bragg’s complaint. First, it briefly considers whether Mr.
Bragg’s lawsuit can be maintained against the Judiciary Committee and Chairman Jordan. Second, the
Sidebar addresses the appropriate standard to be applied if a court were to reach the merits of this dispute,
and specifically whether the heightened scrutiny established in Mazars applies to the subpoena at issue.
Speech or Debate Clause Restrictions on Suits Against the House and its Members
Mr. Bragg’s lawsuit to quash the Committee’s subpoena was brought against the Committee, Chairman
Jordan, and Mr. Pomerantz. It appears unlikely that Mr. Bragg will be able to maintain his suit against
Chairman Jordan or the Committee. As discussed in this previous Sidebar, the Constitution’s Speech or
Debate Clause (Clause) generally bars certain claims when made against a Member of Congress or a
congressional committee. The Clause largely immunizes Members from civil suits predicated on their
“legislative acts,” and the Supreme Court has made clear that the exercise of the subpoena power “plainly
fall[s]” within the definition of “legislative” for purposes of the Clause. As a result, courts have repeatedly
dismissed civil lawsuits filed directly against Members of Congress or congressional committees seeking
to quash or block congressional subpoenas.
Still, the Clause immunizes Members, not subpoenas. A court may assess the validity of a congressional
subpoena when a party with an adequate interest in the demanded information sues the subpoena’s
recipient—rather than a Member or a committee—to block that party from complying with the subpoena.
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The U.S. Court of Appeals for the D.C. Circuit has explained that, if a party is “not in a position to assert
its claim of constitutional right by refusing to comply with a subpoena,” the Clause “does not bar the
challenge so long as [M]embers . . . are not, themselves, made defendants in a suit to enjoin
implementation of the subpoena.”
As such, it would appear that, even if the court dismisses Chairman Jordan and the Committee from the
lawsuit, Mr. Bragg may be able to maintain his claim against Mr. Pomerantz—the recipient of the
Committee’s subpoena. Chairman Jordan and the Committee, however, argue in their opposition brief that
the congressional defendants are both immune from suit and necessary parties under the Federal Rules of
Civil Procedure. As a result, they argue that because the case “cannot proceed without them” it should be
dismissed in its entirety.
Legislative Purpose and the Applicability of Trump v. Mazars
If the case does proceed, and a reviewing court reaches the merits of the claim, whether the Committee
has a valid legislative purpose for its subpoena may be a central question in the case. The Supreme Court
has established that the scope of Congress’s investigative power is coextensive with the scope of its
power to legislate and appropriate under Article I of the Constitution. In order to police the outer bounds
of this otherwise broad and “indispensable” power, the Court has held that a congressional subpoena is
enforceable only when it serves a valid “legislative purpose” that is “related to, and in furtherance of, a
legitimate task of the Congress.”
In the complaint, Mr. Bragg asserts that “Congress lacks any valid legislative purpose to engage in a free-
ranging campaign of harassment in retaliation for the District Attorney’s investigation and prosecution of
Mr. Trump under the laws of New York.” Mr. Bragg further argues that the Committee does not have a
legitimate legislative interest in “interfering” in a state criminal prosecution—a “sphere of authority” that
the Tenth Amendment commits to the State of New York. The Committee disagrees, asserting that it has a
legislative purpose in understanding how federal funds were used in furtherance of the indictment and to
inform itself for purposes of potential legislation that could protect former Presidents from what the
Committee views as “politically motivated” state prosecutions.
As discussed in this previous Sidebar, and at greater length in this CRS report, the legislative purpose test
has historically been deferential to Congress, with the Supreme Court asking in cases like McGrain v.
Daugherty only whether the subject being investigated is “one on which legislation could be had.” Other
cases assessing the existence of a legislative purpose, like Barenblatt v United States, have also suggested
that courts should not inquire into “the motives which spurred the exercise of” the investigative power or
require a committee to “declare in advance” the purpose of an inquiry or its ultimate legislative or
oversight goal. The Supreme Court has stated that “[t]he very nature of the investigative function—like
any research—is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises. To
be a valid legislative inquiry there need be no predictable end result.”
According to the complaint filed by Mr. Bragg, the appropriate test to apply to the Committee’s subpoena
is a heightened form of scrutiny used by the Supreme Court in its 2020 opinion in Trump v Mazars. That
test, Mr. Bragg asserts, establishes certain “special considerations” that require “federal courts to probe
Congress’s asserted purposes for pretext and evidence.”
While it is true that Mazars established a more rigorous framework for evaluating certain congressional
subpoenas, as explained below, the opinion addressed a specific and unique factual context: a
congressional subpoena for a President’s personal records. As a result, it is questionable whether the
heightened scrutiny applied by the Supreme Court in Mazars would apply to the type of subpoena
challenged by Mr. Bragg.

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The Mazars Decision
In early 2019, various House committees issued subpoenas to President Donald Trump’s accounting firm,
Mazars LLC, for the President’s personal financial documents. President Trump brought suit to block
Mazars from complying with those subpoenas, primarily arguing that the committees lacked a legislative
purpose for obtaining the documents. The federal appellate courts, however, largely upheld the committee
subpoenas by applying the historical approach discussed above.
The Supreme Court reversed and remanded, holding that in the context of congressional investigations the
President must, as a constitutional matter, be treated differently than others. The opinion described the
courts below as having mistakenly “treated these cases much like any other,” applying standards and
principles established in “precedents that do not involve the President’s papers.” The Court reasoned that
“[c]ongressional subpoenas for the President’s personal information implicate weighty concerns regarding
the separation of powers” that trigger a different, more exacting approach to the scope of Congress’s
power.
In order to satisfy these concerns, the opinion identified at least four “special considerations” to help
lower courts appropriately balance the “legislative interests of Congress” with “the ‘unique position’ of
the President.” These special considerations effectively establish a framework of heightened judicial
scrutiny to be applied in reviewing congressional subpoenas for certain presidential documents. First, a
reviewing court should “carefully assess whether the asserted legislative purpose warrants the significant
step of involving the President and his papers.” Second, courts “should insist on a subpoena no broader
than reasonably necessary to support Congress's legislative objective.” Third, “courts should be attentive
to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative
purpose.” Fourth, “courts should be careful to assess the burdens imposed on the President by a
subpoena.”
The Scope of Mazars
The Mazars opinion was tailored to a small subset of congressional subpoenas: those seeking presidential
documents (and specifically only those seeking personal, rather than official, presidential documents).
The opinion was rooted in the doctrine of the separation of powers and the political relationship between
Congress and the President. The Supreme Court’s conclusions also specifically hinged upon the “unique”
constitutional position of the President and the more than 200 years of historical practice that have guided
the resolution of investigative disputes between Congress and the President. Interpreting the applicability
of the Mazars test more broadly—for example, to apply the opinion’s “special considerations” to
congressional subpoenas issued in investigations not involving the President—could potentially place
Mazars in tension with cases like McGrain and Barenblatt, a result the Mazars opinion did not explicitly
acknowledge or appear to intend.
The D.C. Circuit appears to have adopted a similarly narrow reading of Mazars in the subsequent case
Trump v. Thompson, albeit in what was likely “non-binding dicta.” In that case, former President Trump
sought to block the National Archives and Records Administration from providing a House select
committee with his presidential records. In determining what framework to apply, the circuit court noted
“significant doubt” that Mazars was the appropriate test to apply, reasoning that “[t]he Mazars test . . .
was expressly tied to ‘special concerns regarding the separation of powers’ that arise when the ‘legislative
interests of Congress’ clash with the ‘unique position of the President.’” The court reasoned that “[t]hose
separation of powers concerns” applied with less force since former President Trump “no longer
occupie[d]” the “unique position of the President.” Ultimately, the circuit court did not need to make a
determination on the applicability of Mazars because it concluded that the “legislative interests at stake”
were adequate to satisfy any of the tests proposed by the parties.

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Mr. Bragg has asserted that the Mazars test should be extended in the context of the subpoena to Mr.
Pomerantz, arguing that “[i]f the courts must rigorously scrutinize a congressional subpoena that threatens
the balance of power between Congress and the executive, then so too must they rigorously analyze a
subpoena that poses a triple threat—to a state executive officer, a state judicial proceeding, and our
federal system itself.” There may be an argument that a congressional subpoena for a state’s investigative
information raises similar structural constitutional concerns as those associated with congressional
subpoenas for a President’s information. This line of argument would equate federalism principles—
governing the separation of sovereign power between the federal government and the states—to the
federal government’s internal separation of powers—governing the proper relationship between
Congress, the President, and the federal judiciary. The argument is one that the Supreme Court could take
up if given the opportunity but not one that is explicitly reflected in Mazars, which was, as described
above, rooted in the historical, legal, and political relationship between Congress and the President.
It is not clear that an apt analogy can be drawn between Congress’s constitutional relationship to the
President, who serves as the unitary head of the federal executive branch, and Congress’s constitutional
relationship to a state official like a district attorney, who serves as a subordinate official within a state
executive branch. The analogy may also be further complicated by other constitutional doctrines like
preemption and the Supremacy Clause, which are not at play in the separation of powers between
Congress and the President. While the Supreme Court has characterized both federalism and the
separation of powers as “foundational” structural principles, it has also suggested—at least in the context
of presidential immunity from civil suits—that “[b]ecause the Supremacy Clause makes federal law ‘the
Supreme Law of the Land,’” the division of power between the federal government and the states may
“implicate concerns that are quite different from the interbranch separation of powers.”
A conclusion that Mazars does not apply to this dispute would not excuse the Committee from the
requirement that its subpoena serve a valid legislative purpose. Instead, it would affect only how and with
what degree of scrutiny the court might evaluate whether the subpoena is within the scope of Congress’s
power. Whereas Mazars imposes a thorough and searching inquiry, the traditional legislative purpose test
appears to be more deferential to Congress, and therefore is more easily satisfied.




Author Information

Todd Garvey

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of

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