Why the court decision on Trump records is about the Constitution

Why the court decision on Trump records is about the Constitution
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The United States Court of Appeals for the District of Columbia recently upheld the House committee subpoenas of business records pertaining to President TrumpDonald John TrumpSchiff pleads to Senate GOP: 'Right matters. And the truth matters.' Anita Hill to Iowa crowd: 'Statute of limitations' for Biden apology is 'up' Sen. Van Hollen releases documents from GAO investigation MORE and some of his businesses of activity both before and after he took office. The panel lof judges voted two to one.

Predictably, most reactions to the case correlated with how one views President Trump. His biggest critics leveled particular vitriol at the dissent penned by his judicial appointee Neomi Rao. Her opinion was viewed as a lawless instance of tribal loyalty. One writer went so far as to suggest her impeachment and removal as the proper remedy for this opinion. That is both a shame and a sham. In reality, both the majority and the dissenting opinions were well crafted and eminently reasonable. In fact, they largely agreed on fundamental principles of the Constitution, diverging more on how those principles applied to the details of the case.

One principle concerns the separation of powers. In particular, the case pertained to whether the subpoenas fell within the lawmaking authority of Congress. According to the Constitution, “All legislative powers herein granted shall be vested in a Congress of the United States.” This phrasing established two key limitations on Congress. First, the Constitution gave it a specific type of power, which is legislative. Second, it did not vest any and all lawmaking authority but only those herein granted.


Both opinions emphasized that the legitimacy of the subpoenas hinged on categorizing them as legislative in nature and as in pursuit of a granted lawmaking matter. If the actions by the House fell outside either one, then it was unconstitutional. Both opinions concurred on the basic distinctions between the lawmaking and other functions of government.

Rao did a better job laying this groundwork, giving a clearer and deeper description of the logical distinctions between legislative, executive, and judicial powers. “The legislative power focuses on prospective general rules for governing society,” she wrote. Meanwhile, executive power included investigating individual actions for possible criminality and judicial power for determining particular guilt or innocence.

The two sides disagreed on whether the subpoenas falls under the legislative power of Congress. They focused on the first restraint in Article One, the line between legislative power and other functions. The majority noted that part of the lawmaking authority of Congress included repealing and reforming past statutes. Investigating how well or not current law works is a legitimate part of that legislative process. Hence, it upheld the subpoenas as part of assessing the functionality of the Ethics in Government Act of 1978, a law requiring presidents and candidates to disclose certain financial and business information to the public.

Rao countered that the subpoenas seek to determine if President Trump committed particular crimes independently of any legislative purposes. The subpoenas fell within the judicial power of assigning retrospective guilt, not the lawmaking function of formulating rules. Rao emphasized that the House still could engage in such an inquiry, but it could only do so through the impeachment process, a rare instance where the Constitution gave judicial power to the legislative branch.

Rao argued that this exception necessitated strict policing so as to maintain the rule. The House must keep a strict distinction between its normal lawmaking efforts and its extraordinary judicial actions under the impeachment power. Any investigation that has a focus on possibly impeachable activity by an impeachable official must consciously and explicitly act under the latter power rather than the former.


In arguing their points, both the majority and the dissent made solid arguments for the legislative or judicial nature of the subpoenas. Rao pointed to the need to keep the House from circumventing judicial processes better suited to protecting the legal rights of defendants. She pointed to the seemingly overwhelming focus on determination of criminal wrongdoing by the president. The majority, however, pointed out that some inquiry into particular actions under a law might aid in crafting future legislation. Drawing some of the lines here that Rao did, they implied, then could lead to serious limitations of legislative tools.

Unfortunately, the best parts of this thoughtful dialogue may get lost in the partisan battles over President Trump. These opinions were about much more than one man or the 2020 election. They instead give an opportunity for us as citizens to better know our Constitution.

Adam Carrington is an assistant professor of politics at Hillsdale College.