Two Obama appointees just greenlit two of the most invasive Congressional subpoenas for private financial information in American history.
The two subpoenas from the House often came without House approval, but instead with written memorandums by self-serving chairmen. They compelled invasive disclosure of intimate information from accountants and banks concerning the private records of private people from a time period Trump was neither a candidate nor the President. Their orders eviscerate and endanger privacy for all Americans.
Constitutional constrictions impose structural limitations on Congress’ subpoena power to protect individuals from rogue politicians. This includes jurisdictional challenges, pertinence challenges, procedural challenges, and Constitutional challenges. Congress can only seek information specifically relevant to an authorized area of inquiry that is likely to produce facts essential and necessary for legislation in order to secure and safeguard the free speech; free association; and privacy of ordinary Americans under the First, Fourth, and Fifth Amendment of the Bill of Rights to the United States Constitution.
Supreme Court precedent “makes it plain that the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights.” Watkins v. United States, 354 U.S. 178, 198 (1957). Congress cannot “unjustifiably encroach upon an individual’s right to privacy nor abridge his liberty of speech, press, religion or assembly.” Watkins v. United States, 354 U.S. 178, 198 (1957). The Supreme Court warned “there is no congressional power to expose for the sake of exposure.” Watkins v. United States, 354 U.S. 178, 200 (1957). The sole and whole goal must be “collecting information for a legislative purpose” which is limited to “obtaining facts upon which the full legislature can act.” Watkins v. United States, 354 U.S. 178, 200 (1957). This imposes “a jurisdictional concept of pertinency” that constricts inquiries to factual issues needed for legislation. Watkins v. United States, 354 U.S. 178, 206 (1957). This “scope of inquiry” must be “defined with sufficiently unambiguous clarity to safeguard a witness from the hazards of vagueness.” Watkins v. United States, 354 U.S. 178, 217(1957).
Two Obama-appointed judges just said: “nah.”
Congress only has the power to issue a subpoena when three conditions are first met: “Congress has the power to investigate; the committee has a proper grant of authority to conduct the investigation; and the materials sought are pertinent to the investigation and within the scope of the grant of authority.” Bergman v. Senate Special Committee on Aging, 389 F.Supp. 1127, 1130 (S.D.N.Y. 1975). This means there must be an “unambiguous resolution from the Senate authorizing it” and the investigation must be concerning “a subject on which legislation could be had.” Eastland v. U.S. Servicemens Fund, 421 U.S. 491, 508 (1975). A subpoena activity that is “not essential to legislating” is not within the subpoena power. Eastland v. U.S. Servicemens Fund, 421 U.S. 491, 508 (1975).
“There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress…Nor is the Congress a law enforcement or trial agency. Those are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to punish those investigated are indefensible.” Watkins v. United States, 354 U.S. 178, 186 (1957).
The limitation on Congressional subpoenas stems from centuries of abuse of such power by the British Parliament. Clergymen imprisoned for remarks made in sermons. Confining witnesses to the infamous Tower. The experience of the HUAC reminded American courts of the dangers posed by politicians pretending to be prosecutors, investigators, and judges. Indeed, the Senate had no fact-finding investigation in aid of legislation for the first 70+ years of our Republic until 1859. Watkins v. United States, 354 U.S. 178, 192 (1957).
Indeed, this investigative power was “so sparingly employed,” the Supreme Court had “few cases” to review its use for most of our history. Watkins v. United States, 354 U.S. 178, 193 (1957). The Court early on rejected the power of Congress to inquire into the private affairs of a famous company connected to politics. Kilbourn v. Thompson, 103 U.S. 168 (1881).
Indeed, “the First Amendment may be invoked against infringement of the protected freedoms” to subpoenaed testimony. Watkins v. United States, 354 U.S. 178, 197 (1957). “Abuses of the investigative process may imperceptibly lead to abridgment of protected freedoms.” Watkins v. United States, 354 U.S. 178, 197 (1957). Thus, “when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter.” Watkins v. United States, 354 U.S. 178, 198 (1957). Particularly, “a general inquiry designed to ascertain plaintiff’s personal wealth or general net worth is not pertinent to the investigation and plaintiffs are constitutionally protected from disclosure of this type of information.” Bergman v. Senate Special Committee on Aging, 389 F.Supp. 1127, 1130 (S.D.N.Y. 1975).
The same district court in the Southern District of New York determined purely personal records could not be subpoenaed by Congress. Bergman v. Senate Special Committee on Aging, 389 F.Supp. 1127 (S.D.N.Y. 1975). The right to privacy forbade it: “the request for these documents by the Subcommittee amounts to unauthorized action without valid legislative justification in violation of certain of their constitutional rights.” Bergman v. Senate Special Committee on Aging, 389 F.Supp. 1127, 1130 (S.D.N.Y. 1975). Indeed, “the forced disclosure of the materials requested would allegedly violate their federal constitutional rights under the First, Fourth, and Ninth Amendments.” Bergman v. Senate Special Committee on Aging, 389 F.Supp. 1127, 1130 (S.D.N.Y. 1975).
The right to privacy could only be overcome by a specific legislative need, which the Democratic House failed to establish in either Trump subpoena case. As the same district court (but different judge) established before: “where the inquiry or the request for documents is not justified by a specific legislative need, the threat of a violation of an individual’s constitutional rights, including his or her personal interest in privacy, outweighs any right the Subcommittee might claim to the subpoenaed documents and requires that disclosure not be compelled.” Bergman v. Senate Special Committee on Aging, 389 F.Supp. 1127, 1130 (S.D.N.Y. 1975).
There is literally no precedent for the scope of the subpoenas these two Obama-appointed Judges approved.
The judges’ mutual refusal to stay their judgment pending appeal further reflects the partisan motivation behind their conduct. Anyone think they would have approved Congressional subpoenas into Obama’s still-sealed educational records? Anyone think they would have approved Senatorial subpoenas into Biden’s family finances that concern the large sums of money foreign countries and their agents paid his family during his Vice Presidency under Obama? Anyone think they would have approved wide-scale subpoenas into the activities of the Clinton Foundation during Hillary Clinton’s tenure as Secretary of State?
This judgment presents a risk far beyond the politics and personality of Trump, though it is the premise for the courts’ conduct; these court orders open Pandora’s box for any snooping, stalking, surveilling politician to pry open the most intimate private aspects of any person’s life at any time for any reason as they long as they write a memo to themselves that says: we need this for legislation someday, maybe, kinda.
Does anyone think these peeping Tom politicians will limit their window shopping to Trump Tower?
The legal and political left continues to attack the first freedoms of the Constitutional republic in ways even Orwell thought too implausible to foresee. The failure to protect privacy for those related to Trump is the failure to protect privacy for everyone. Let us hope SCOTUS steps in before 2024 becomes Orwell’s 1984.
Robert Barnes is a civil, criminal and constitutional lawyer who has represented high profile clients from Alex Jones to the Covington Kids.