No.

19A545

IN THE
Supreme Court of the United States
_______________
DONALD J. TRUMP; THE TRUMP ORGANIZATION, INC.; TRUMP ORGANIZATION LLC; THE
TRUMP CORPORATION; DJT HOLDINGS LLC; THE DONALD J. TRUMP REVOCABLE
TRUST; AND TRUMP OLD POST OFFICE LLC,
Applicants,
v.
MAZARS USA, LLP; COMMITTEE ON OVERSIGHT AND REFORM OF THE
U.S. HOUSE OF REPRESENTATIVES,
Respondents.
_______________
On Application for Stay of the Mandate of the United States Court of Appeals for
the District of Columbia Circuit
_______________
OPPOSITION TO EMERGENCY APPLICATION FOR A STAY OF MANDATE
_______________

Lawrence S. Robbins Douglas N. Letter

Roy T. Englert, Jr. Counsel of Record
Alan D. Strasser Todd B. Tatelman
Jennifer S. Windom Megan Barbero
D. Hunter Smith Josephine Morse
ROBBINS, RUSSELL, ENGLERT, ORSECK, Adam A. Grogg
UNTEREINER & SAUBER LLP Jonathan B. Schwartz
2000 K Street NW, 4th Floor OFFICE OF GENERAL COUNSEL
Washington, D.C. 20006 U.S. HOUSE OF REPRESENTATIVES
(202) 775-4500 219 Cannon House Building
lrobbins@robbinsrussell.com Washington, D.C. 20515
(202) 225-9700
douglas.letter@mail.house.gov

Counsel for Respondent Committee on Oversight and Reform of the United States
House of Representatives
 TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .......................................................................................... ii

BACKGROUND ............................................................................................................. 2

ARGUMENT ................................................................................................................ 10

I. A Stay Should Be Denied.................................................................................. 10

A. The D.C. Circuit’s opinion is correct, is not in conflict with any

decision by another court of appeals, and is unlikely to be
reviewed or reversed by this Court........................................................ 10

B. The irreparable harm that a stay would cause Congress and the
public outweighs whatever harm enforcement of the subpoena
would cause Applicants .......................................................................... 23

II. If The Court Nevertheless Grants a Stay, It Should Order Expedited

Briefing On Applicants’ Forthcoming Petition For Certiorari ........................ 28

CONCLUSION............................................................................................................. 29

i
 TABLE OF AUTHORITIES

Page(s)

Cases

Airbnb, Inc. v. City of New York,

373 F. Supp. 3d 467 (S.D.N.Y. 2019) ..................................................................... 27

Araneta v. United States,

478 U.S. 1301 (1986) .............................................................................................. 27

Barenblatt v. United States,

360 U.S. 109 (1959) .................................................................................... 14, 15, 20

Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan,
501 U.S. 1301 (1991) (Scalia, J., in chambers) .................................... 10, 23, 25, 28

In re Chapman,
166 U.S. 661 (1897) ................................................................................................ 12

Cheney v. U.S. Dist. Court for D.C.,

541 U.S. 913 (2004) (Scalia, J., in chambers) ........................................................ 28

Clinton v. Jones,
520 U.S. 681 (1997) .......................................................................................... 19, 20

Dep’t of Transp. v. Ass’n of Am. R.Rs.,

135 S. Ct. 1225 (2015) ............................................................................................ 21

Doe v. McMillan,
412 U.S. 306 (1973) ................................................................................................ 24

Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491 (1975) .....................................................7, 8, 10, 16, 20, 23, 24, 27, 29

Exxon Corp. v. FTC,

589 F.2d 582 (D.C. Cir. 1978) ................................................................................ 28

Hutcheson v. United States,

369 U.S. 599 (1962) ................................................................................................ 13

John Doe Agency v. John Doe Corp.,

488 U.S. 1306 (1989) (Marshall, J., in chambers) ................................................. 27

Kilbourn v. Thompson,
103 U.S. 168 (1880) ................................................................................................ 15

ii
 TABLE OF AUTHORITIES—Continued

Page(s)

Maness v. Meyers,
419 U.S. 449 (1975) ................................................................................................ 27

Maryland v. King,
567 U.S. 1301 (2012) (Roberts, C.J., in chambers) ............................................... 10

McGrain v. Daugherty,
273 U.S. 135 (1927) ................................................................................ 2, 14, 20, 23

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bishop,

839 F. Supp. 68 (D. Me. 1993) ................................................................................ 27

Mikutaitis v. United States,

478 U.S. 1306 (1986) (Stevens, J., in chambers) ................................................... 27

Nashville, C. & St. L. Ry. v. Wallace,

288 U.S. 249 (1933) ................................................................................................ 17

Nken v. Mukasey,
555 U.S. 1042 (2008) .............................................................................................. 28

Office of President v. Office of Indep. Counsel,

521 U.S. 1105 (1997) .............................................................................................. 26

Office of President v. Office of Indep. Counsel,

525 U.S. 996 (1998) ................................................................................................ 26

Office of President v. Office of Indep. Counsel,

No. A-108, 1998 WL 438524 (U.S. Aug. 4, 1998) (Rehnquist, C.J., in
chambers)................................................................................................................ 26

Packwood v. Senate Select Comm. on Ethics,

510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers) .......................................... 26

People v. Keeler,
99 N.Y. 463 (N.Y. 1885) .......................................................................................... 14

Providence Journal Co. v. Fed. Bureau of Investigation,

595 F.2d 889 (1st Cir. 1979) ................................................................................... 27

Purcell v. Gonzalez,
549 U.S. 1 (2006) .................................................................................................... 28

iii
 TABLE OF AUTHORITIES—Continued

Page(s)

Rubin v. United States,

524 U.S. 1301 (1998) (Rehnquist, C.J., in chambers) ........................................... 26

Rubin v. United States,

525 U.S. 990 (1998) ................................................................................................ 26

Sinclair v. United States,

279 U.S. 263 (1929) .................................................................................... 13, 14, 20

Trump v. Int’l Refugee Assistance Project,

137 S. Ct. 2080 (2017) ...................................................................................... 23, 29

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ................................................................................................ 17

United States v. Burr,

25 F. Cas. 30 (No. 14,692d) (C.C. Va. 1807) ......................................................... 19

United States v. Nixon,

418 U.S. 683 (1974) ................................................................................................ 19

United States v. Rumely,

345 U.S. 41 (1953) .................................................................................................. 24

United States v. W. T. Grant Co.,

345 U.S. 629 (1953) ................................................................................................ 25

Watkins v. United States,

354 U.S. 178 (1957) .................................................................................................. 2

Williams v. Zbaraz,
442 U.S. 1309 (1979) (Stevens, J., in chambers) ................................................... 10

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) .................................................................................................... 23

Constitutional Provisions

U.S. Const., art. I, § 1 .................................................................................................... 2

U.S. Const., art. I, § 5, cl. 2.......................................................................................... 18

U.S. Const., art. I, § 9, cl. 8............................................................................................ 3

iv
 TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const., art. II, § 1, cl. 7 .......................................................................................... 3

Statutes

Ethics in Government Act, 5 U.S.C. 4 app. §§ 101 et seq. .................................. 3, 4, 17

Foreign Gifts and Decorations Act, 5 U.S.C. § 7342 .................................................. 17

Legislative Authorities

H.R. 1, 116th Cong. (2019) .......................................................................................... 12

H.R. 391, 116th Cong. (2019) ...................................................................................... 12

H.R. 681, 116th Cong. (2019) ...................................................................................... 12

H.R. 706, 116th Cong. (2019) ...................................................................................... 12

H.R. 745, 116th Cong. (2019) ...................................................................................... 12

H. Res. 507, 116th Cong. (2019) .............................................................................. 8, 19

H. Rep. No. 116-40 (2019).............................................................................................. 4

Rules of the House of Representatives, 116th Congress

House Rule X.1............................................................................................................... 3

House Rule X.3............................................................................................................... 3

House Rule X.4............................................................................................................... 3

House Rule XI.2 ............................................................................................................. 3

Other Authorities

FEDERALIST NO. 51 ....................................................................................................... 24

General Services Administration, Office of Inspector General,

Evaluation of GSA’s Management and Administration of the Old
Post Office Building Lease (Jan. 16, 2019), https://perma.cc/V7YE-
H93H ......................................................................................................................... 6

v
 TABLE OF AUTHORITIES—Continued

Page(s)

Letter from the Honorable Elijah E. Cummings, Chairman, House

Comm. on Oversight & Reform, to Victor Wahba, Chairman and
Chief Exec. Officer, Mazars USA LLP (Mar. 20, 2019),
https://perma.cc/A6VU-URH5 .................................................................................. 5

Letter from the Honorable Elijah E. Cummings, Chairman, House

Comm. on Oversight & Reform, et al., to the Honorable Emily
Murphy, Adm’r, Gen. Servs. Admin. (Apr. 12, 2019),
https://perma.cc/RB7F-XS2H ................................................................................... 6

vi
 OPPOSITION TO
EMERGENCY APPLICATION FOR A STAY OF MANDATE

Applicants ask this Court to halt the functions of a coordinate branch of

government by restraining a valid Congressional inquiry and quashing a subpoena

issued to a private accounting firm. That request should be denied.

Two hundred twenty days—almost one-third of the 116th Congress’s term—

have elapsed since the Committee on Oversight and Reform of the United States

House of Representatives issued a subpoena to the accounting firm Mazars USA,

LLP, seeking non-privileged financial records relating to President Donald J.

Trump and certain of his business entities. Faithfully applying this Court’s

precedents addressing Congressional subpoenas, two levels of the federal judiciary

have upheld that subpoena as valid and enforceable. Each concluded that the

Committee issued the subpoena in furtherance of a valid legislative purpose and

that the subpoena seeks documents relevant to a subject about which Congress

could enact legislation. Although there were dissents from the panel opinion and

from the denial of rehearing en banc, no one has ever contended that the opinion

below conflicts with any decision of another court of appeals.

Applicants have not shown that this case warrants review by this Court or

that there is a fair prospect of reversal of the judgment below. The only issues

Applicants raise for this Court’s consideration are: (1) a fact-bound dispute over the

purpose of the subpoena; (2) a claim that all laws—enacted and yet unwritten—

requiring the President and Presidential candidates to make financial disclosures

are and would be unconstitutional; and (3) a moot issue about whether the House’s

1
rules mean what all agree they literally say. None of those issues was decided

incorrectly below; and, even if Applicants’ extravagant legal claims had any merit,

this time-sensitive case would be a poor vehicle to address them. Nor have

Applicants demonstrated that any harm they will suffer if Mazars responds to the

subpoena outweighs the severe harm that Congress would suffer by being deprived

of information it urgently needs to exercise its constitutional functions.

This Court should deny a stay. If it does not, the Committee respectfully

requests that the Court condition any stay on a requirement that Applicants file a

certiorari petition on or before December 2, 2019, to ensure that this Court may

consider this case on an expedited basis this Term, if it does grant certiorari.

BACKGROUND

1. The Constitution vests “[a]ll legislative Powers” in Congress. U.S. Const.,

art. I, § 1. This Court has long recognized that Congress’s power to conduct

oversight and investigations—a “power of inquiry[,] with process to enforce it—is an

essential and appropriate auxiliary to the legislative function.” McGrain v.

Daugherty, 273 U.S. 135, 174 (1927). Congress “cannot legislate wisely or

effectively in the absence of information respecting the conditions which the

legislation is intended to affect or change.” Id. at 175. Accordingly, Congress’s

power to investigate is “broad.” Watkins v. United States, 354 U.S. 178, 187 (1957).

2. This case arises out of a subpoena that the Committee on Oversight and

Reform (the “Committee”) issued to Mazars USA, LLP (“Mazars”) on April 15, 2019.

The Committee is the House’s principal oversight body. It is charged with

“review[ing] and study[ing] on a continuing basis the operation of Government

2
activities at all levels, including the Executive Office of the President.” House Rule

X.3(i). The Committee “has for decades exercised jurisdiction over the Ethics in

Government Act and served as the authorizing committee for the Office of

Government Ethics.” Appendix to Emergency Application for Stay (“App.”) 56; see 5

U.S.C. 4 app. §§ 101 et seq. The Committee’s jurisdiction also “includes financial-

disclosure and other ethics-in-government laws.” App. 56 (citing House Rule

X.1(n)). In addition, the Committee has jurisdiction over the Government Services

Administration (“GSA”) and the “management of government operations and

activities” generally. House Rule X.1(n)(6).

To fulfill its duties and functions, the Committee “may at any time conduct

investigations of any matter without regard to” other committees’ jurisdiction,

House Rule X.4(c)(2), and it may “require, by subpoena or otherwise . . . the

production of such . . . documents as it considers necessary,” House Rule XI.2(m)(1)).

3. Consistent with its broad jurisdiction and principal investigative role, the

Committee has undertaken a series of investigations concerning government ethics

and conflicts of interest throughout the Executive Branch, the accuracy of President

Trump’s financial disclosures, GSA’s federal lease to Trump Old Post Office LLC for

the site of the Trump International Hotel, and possible violations of the

Emoluments Clauses. See U.S. Const., art. I, § 9, cl. 8; U.S. Const., art. II, § 1, cl. 7.

Among other issues, the Committee is investigating whether senior government

officials, including the President, are acting in the country’s best interest and not in

their own financial interest, whether federal agencies are operating free from

3
financial conflicts and with accurate information, and whether any legislative

reforms are needed to ensure that these fundamental principles are respected.

A common thread in each of these inquiries is the accuracy of statements

made by President Trump on various financial disclosures. President Trump

“continues to have financial interests in businesses across the United States and

around the world that pose both perceived and actual conflicts of interest.” H. Rep.

No. 116-40, at 156 (2019). The subpoena challenged here, which seeks financial

documents and records from the longtime accountant of Applicants, is intended to

shed light on the accuracy of President Trump’s disclosures, and thereby to inform

the Committee’s oversight of the Executive Branch and its consideration of remedial

legislation.

One of the Committee’s investigations was prompted by an error that the

Office of Government Ethics identified last year in President Trump’s financial

disclosures. App. 4. Specifically, the Office determined that, in 2017, President

Trump had failed to report a liability that was reportable under the Ethics in

Government Act. App. 4. The liability arose out of a payment made by Mr. Michael

Cohen, President Trump’s former personal lawyer, to a third party. App. 4.

The Office’s identification of this error led the Committee to request

documents from the White House related to President Trump’s payments to Mr.

Cohen. App. 5. In correspondence with the White House concerning that request,

then-Committee Chairman Elijah Cummings cited “the Oversight Committee’s

status as ‘the authorizing Committee for the Office of Government Ethics,’ the

4
President’s statutory obligation to ‘file . . . public financial disclosure report[s],’ and

Congress’s ‘plenary authority to legislate and conduct oversight regarding

compliance with ethics laws and regulations.’” App. 6. Importantly, Chairman

Cummings explained that the documents the Committee sought would “help the

Committee determine . . . why the President failed to report . . . payments and

whether reforms are necessary to address deficiencies with current laws, rules, and

regulations.” App. 6. The White House did not produce the documents requested.

Later, on February 27, 2019, Mr. Cohen appeared at a hearing before the

Committee. Mr. Cohen testified that the President had “inflated his total assets” in

some circumstances and had “deflated his assets” in others. App. 6 (quoting Mr.

Cohen’s testimony). After Committee members questioned that testimony, Mr.

Cohen produced to the Committee several accounting documents, including 2011

and 2012 “Statements of Financial Condition” prepared for Mr. Trump by Mazars.

App. 6-7. Therefore, on March 20, 2019, Chairman Cummings wrote to Mazars to

request several categories of documents relating to President Trump’s accounts,

including documents used to prepare the Statements of Financial Condition for

President Trump and his related business entities. App. 7-8. 1 Mazars replied that

it could not provide the documents voluntarily. App. 8.

4. The Committee also is investigating the General Services Administration’s

management of the lease of the Old Post Office Building in Washington, D.C., to

See Letter from the Honorable Elijah E. Cummings, Chairman, House

1

Comm. on Oversight & Reform, to Victor Wahba, Chairman and Chief Exec. Officer,
Mazars USA LLP, at 1 (Mar. 20, 2019), https://perma.cc/A6VU-URH5.
5
President Trump’s business. In January 2019, the GSA Office of Inspector General

issued a report finding that there were “serious shortcomings” in the GSA’s

management of that lease, and raised concerns as to whether President Trump’s

inauguration caused a breach of the lease or led to violations of the Emoluments

Clauses. 2 In April 2019, Chairman Cummings wrote to the GSA Administrator,

explaining that the Committee was “investigating the federal lease for the Old Post

Office Building” and requesting that GSA provide the Committee several categories

of documents, including documents “referring or relating to Mazars USA LLP.” 3

5. That same day, April 12, 2019, Chairman Cummings wrote a

memorandum to Committee members describing his intent to issue a subpoena to

Mazars. App. 8. The memorandum identified four subjects that the Committee had

authority to investigate: (1) “whether the President may have engaged in illegal

conduct before and during his tenure in office,” (2) “whether [the President] has

undisclosed conflicts of interest that may impair his ability to make impartial policy

decisions,” (3) “whether [the President] is complying with the Emoluments Clauses

of the Constitution,” and (4) “whether [the President] has accurately reported his

finances to the Office of Government Ethics and other federal entities.” App. 8; see

also Respondent’s Supplemental Appendix (“Supp. App.”) 4 (Chairman Cummings’s

2 See GSA, Office of Inspector General, Evaluation of GSA’s Management and

Administration of the Old Post Office Building Lease (Jan. 16, 2019), at 23,
https://perma.cc/V7YE-H93H.
3 Letter from the Honorable Elijah E. Cummings, Chairman, House Comm.

on Oversight & Reform, et al., to the Honorable Emily Murphy, Adm’r, Gen. Servs.
Admin., at 1, 3 (Apr. 12, 2019), https://perma.cc/RB7F-XS2H.
6
April 12 memorandum). Significantly, in the memorandum’s next sentence, the

Chairman explained that “[t]he Committee’s interest in these matters informs its

review of multiple laws and legislative proposals under our jurisdiction.” App. 8

(quoting Supp. App. 4).

Chairman Cummings issued the subpoena at issue here on April 15, 2019,

directing Mazars to comply by April 29, 2019. App. 8-9. Before the subpoena’s

response date, Applicants President Trump, in his individual capacity, and his

related business entities sued to enjoin Mazars’s compliance. Following this Court’s

direction to give cases such as this “the most expeditious treatment,” Eastland v.

U.S. Servicemen’s Fund, 421 U.S. 491, 511 n.17 (1975), the district court

consolidated the preliminary injunction hearing with a final hearing on the merits,

see Fed. R. Civ. P. 65(a)(2), and entered summary judgment in favor of the

Committee on May 20, 2019, see App. 144-84.

The parties agreed to an expedited briefing schedule on appeal and “to

suspend the time for production set by the subpoena during the pendency of th[e]

appeal.” Joint Mot. to Expedite Appeal at 2 (D.C. Cir. May 22, 2019). The parties

agreed that the “pendency of the appeal” would end when the D.C. Circuit’s

mandate issued.

6. On October 11, 2019, the court of appeals affirmed the district court by a

2-1 vote. See App. 1-134. First, the court rejected Applicants’ argument that an

impermissible law enforcement purpose invalidated the subpoena. The court

“[a]ssum[ed]” for the sake of argument that it “owe[d] Congress no deference” as to

7
the subpoena’s purposes and “[f]ollow[ed]” Applicants’ suggestion to determine those

purposes based on the “available evidence.” App. 25 (quoting Appellants’ Br. 29-30).

Applying well-established precedent from this Court, the court of appeals held that

the subpoena had a proper purpose. The court found the repeated “references to

specific problems” in Chairman Cummings’s April 12 memorandum and in the

Committee’s other correspondence, “together with actual legislation now pending,

. . . more than sufficient to demonstrate the Committee’s interest in investigating

possible remedial legislation.” App. 28 (quotation marks and citation omitted). “At

bottom,” the court of appeals explained, “this subpoena is a valid exercise of the

legislative oversight authority because it seeks information important to

determining the fitness of legislation to address potential problems within the

Executive Branch.” App. 50 (emphasis omitted).

The court also rejected Applicants’ other arguments. The court declined to

rule that all existing and potential laws requiring financial disclosures by the

President and Presidential candidates are unconstitutional, and so concluded that

“the challenged subpoena seeks ‘information about a subject on which legislation

may be had.’” App. 45 (quoting Eastland, 421 U.S. at 508). In addition, the court

held that the House had authorized the Committee to issue the subpoena with

sufficient clarity, App. 60-64, and observed that, even if it had not, “several weeks

after oral argument in this case . . . the full House adopted a resolution that in no

uncertain terms ‘ratified and affirmed’” the subpoena at issue here, App. 63

(quoting H. Res. 507, 116th Cong. (2019)).

8
 Judge Rao dissented, on grounds not advanced by any party or amicus

(including the Department of Justice). She reasoned that the House of

Representatives may seek “information about the President’s wrongdoing,” even

from third parties, only after taking some formal step to invoke the House’s

impeachment powers. App. 67. She concluded that it therefore did “not matter

whether the [Committee’s] investigation also has a legislative purpose.” App. 67.

But see App. 22 (“all parties here agree that ‘a permissible legislative investigation

does not become impermissible merely because it might expose law violations’”

(quoting Appellants’ Br. 33)).

On November 7, 2019, the court of appeals denied the Committee’s motion to

expedite the mandate and Applicants’ cross-motion to stay the mandate. On

November 13, the court denied rehearing en banc over dissents by Judge Katsas

(joined by Judge Henderson), see App. 138-39, and by Judge Rao (joined by Judge

Henderson), see App. 140-42.

On November 15, Applicants filed an emergency application with this Court,

seeking a stay of the mandate and an administrative stay pending disposition of

their application. Thereafter, the Committee notified the Court that it would not

oppose a ten-day administrative stay. See Letter from Douglas N. Letter to Mr.

Scott Harris, Clerk (Nov. 18, 2019). The Chief Justice ordered an administrative

stay of the mandate, pending further order by this Court.

9
 ARGUMENT

I. A Stay Should Be Denied

An applicant for a stay “must demonstrate (1) a reasonable probability that

this Court will grant certiorari, (2) a fair prospect that the Court will then reverse

the decision below, and (3) a likelihood that irreparable harm [will] result from the

denial of a stay.” Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in

chambers) (quotation marks omitted). These conditions “are necessary [but] not

necessarily sufficient” to grant a stay. Barnes v. E-Sys., Inc. Grp. Hosp. Med. &

Surgical Ins. Plan, 501 U.S. 1301, 1304 (1991) (Scalia, J., in chambers). Before

granting a stay, this Court also must (4) “balance the equities—[by] explor[ing] the

relative harms to applicant and respondent, as well as the interests of the public at

large.” Id. at 1305 (quotation marks omitted). “Where there is doubt, it should

inure to the benefit of those who oppose grant of the extraordinary relief which a

stay represents.” Williams v. Zbaraz, 442 U.S. 1309, 1316 (1979) (Stevens, J., in

chambers).

A. The D.C. Circuit’s opinion is correct, is not in conflict with any

decision by another court of appeals, and is unlikely to be
reviewed or reversed by this Court.

Subpoenas have “long been held to be a legitimate use by Congress of its

power to investigate.” Eastland, 421 U.S. at 504. “The fact that the subpoena in

this case seeks information that concerns the President of the United States adds a

twist[.]” App. 65. But the President brought this suit in his individual capacity and

the subpoena does not seek information that is subject to any “executive or other

recognized evidentiary privilege.” App. 21. This case therefore does not raise
10
“grave” or “serious and difficult” constitutional questions. App. 61 (quotation and

alteration marks omitted).

1. None of Applicants’ arguments warrants review or is likely to result in

reversal.

a. Applicants’ first argument presents a fact-bound dispute about the

purpose of the Mazars subpoena: starting from the false premise that a subpoena

can have only one “purpose,” Applicants argue that the Committee’s purpose is “law

enforcement, not legislating.” Stay App. 16; see Stay App. 16-19. Both courts below

correctly rejected that argument. The court of appeals did so even after “assuming”

for the sake of argument that it “owe[d] Congress no deference” as to the subpoena’s

purposes, and even “[f]ollowing” Applicants’ own suggestion to “rely upon available

evidence . . . to discern for [itself] what the Committee’s actual purpose is.” App. 25

(quoting in part Appellants’ Br. 29-30). The D.C. Circuit identified “more than

sufficient” evidence of “the Committee’s interest in investigating possible remedial

legislation” to support issuance of the subpoena. App. 28.

That evidence included: (1) the Committee’s own repeated statements that its

inquiry was in pursuit of such legislation, App. 28; (2) “the fact that the House has

pending several pieces of legislation related to the Committee’s inquiry,” App. 27

(describing this as “highly probative evidence of the Committee’s legislative

purpose”), and (3) the fact that “the House has even put its legislation where its

11
mouth is” by passing one of those bills, App. 30 (referring to H.R. 1); 4 accord App. 27

(also noting that, to justify an investigation, “‘[i]t is certainly not necessary’ for

Congress to identify future legislation ‘in advance’” (quoting In re Chapman, 166

U.S. 661, 670 (1897)). Thus, the court of appeals found, “this subpoena is a valid

exercise of the legislative oversight authority because it seeks information

important to determining the fitness of legislation to address potential problems

within the Executive Branch.” App. 50.

Applicants dismiss all of this evidence as “magic words,” Stay App. 17, but

they provide no reason to suggest that this Court would evaluate the House’s

substantial legislative activity and the Committee’s repeated statements of its

legislative purpose any differently than did the court of appeals. This is a purely

fact-bound dispute: the court of appeals determined the subpoena’s purposes

according to the test Applicants advocated and also recognized that the “mere

assertion of a need to consider remedial legislation may not alone justify an

investigation.” App. 28 (quotation marks omitted). After scrutinizing the record of

4 H.R. 1 would “require[] Presidents to list on their financial disclosures the

liabilities and assets of any ‘corporation, company, firm, partnership, or other
business enterprise in which’ they or their immediate family have ‘a significant
financial interest.’” App. 27 (quoting H.R. 1, 116th Cong. § 8012 (2019)). Other bills
related to the Committee’s inquiry include H.R. 706, which would prohibit the
President and Vice President from conducting business directly with the federal
government, H.R. 706, 116th Cong. § 241 (2019); H.R. 745, which “would amend the
Ethics in Government Act to make the Director of the Office of Government Ethics
removable only for cause,” App. 27 (citing H.R. 745, 116th Cong. § 3 (2019)); H.R.
681, which would extend anti-nepotism laws to the White House Office and
Executive Office of the President, H.R. 681, 116th Cong. (2019); and H.R. 391,
which would require public reporting of ethics waivers obtained by Executive
Branch appointees, H.R. 391, 116th Cong. (2019).
12
legislative materials before it, the court found that the Committee’s stated purposes

and the House’s demonstrated activity amounted to much more than so-called

magic words. See App. 28 (finding that this case does not involve “an insubstantial,

makeweight assertion of remedial purpose”). That determination is not worthy of

this Court’s review, or likely to be reversed if the Court does grant review.

To convince this Court otherwise, Applicants spend a considerable part of

their application quoting the Chairman’s and Committee members’ statements that

they were interested in whether the President had complied with the law. See Stay

App. 6-7, 16-19. But, as this Court’s cases establish, “an interest in past illegality

can be wholly consistent with an intent to enact remedial legislation.” App. 29; see

App. 29-31 (discussing Hutcheson v. United States, 369 U.S. 599 (1962) and Sinclair

v. United States, 279 U.S. 263 (1929)). Although the Committee’s investigation was

prompted, in part, by the Office of Government Ethics’ determination that President

Trump had failed to comply with existing law, as the district court found, “[h]istory

has shown” that Congressional investigations of Executive wrongdoing “can lead to

legislation.” App. 172; see App. 172-73 (describing legislation arising out of

Congress’s investigations of the Watergate and Teapot Dome scandals).

What is more, this Court’s cases have consistently recognized that subpoenas

pursue multiple purposes simultaneously and that it is the presence of a valid

legislative purpose, not the absence of any other purpose, that determines their

lawfulness. See, e.g., Hutcheson, 369 U.S. at 617 (holding subpoena valid even

though the “Committee’s concern . . . was to discover whether . . . [union] funds . . .

13
had been used . . . to bribe a state prosecutor”); Sinclair, 279 U.S. at 290 (holding

subpoena valid even though a committee member had said that, “[i]f we do not

examine Mr. Sinclair about th[e] matters [for which he was being prosecuted], there

is not anything else to examine him about”). Consistent with these precedents, the

court of appeals concluded that “[t]he Committee’s interest in alleged

misconduct . . . is in direct furtherance of its legislative purpose.” App. 31.

In claiming that courts must determine a subpoena’s only purpose,

Applicants misrepresent the cases they quote. According to Applicants (at 18),

McGrain v. Daugherty, 273 U.S. at 178, establishes that a court must determine a

subpoena’s “real object.” What the Court actually said, however, was merely that

“the subject-matter” of the subpoena “was such that the presumption should be

indulged that [legislating] was the real object.” Id. Far from suggesting that a

court must go beyond that presumption and inquire into the “real object” of a

Congressional subpoena, this Court later on the same page quoted with approval a

state-court decision saying that “[w]e are bound to presume that the action of the

legislative body was with a legitimate object if it is capable of being so construed.”

Id. (emphasis added) (quoting People v. Keeler, 99 N.Y. 463, 487 (N.Y. 1885)).

According to Applicants (at 14, 18), Barenblatt v. United States, 360 U.S. 109,

133 (1959), establishes that a court must determine a subpoena’s “primary

purpose[].” All this Court wrote, however, was that “we cannot say that the

unanimous panel of the Court of Appeals which first considered this case was wrong

in concluding that ‘the primary purposes of the inquiry were in aid of legislative

14
processes.’” Id. Far from suggesting that a court must in every case determine a

subpoena’s “primary purpose[],” the Court one page earlier rejected the “contention

that this investigation should not be deemed to have been in furtherance of a

legislative purpose because [its] true objective” was something else. Id. at 132

(emphasis added). Contrary to Applicants’ misreading of the case, the Court stated

in the next sentence: “So long as Congress acts in pursuance of its constitutional

power, the Judiciary lacks authority to intervene on the basis of the motives which

spurred the exercise of that power.” Id.

According to Applicants (at 18), Kilbourn v. Thompson, 103 U.S. 168, 195

(1880), establishes that a court must determine a subpoena’s “gravamen.” But

Kilbourn held not that a subpoena is invalid whenever its “gravamen” is determined

to be one thing or another, but instead that the entire House inquiry there was

invalid because it “could result in no valid legislation on the subject to which the

inquiry referred.” Id. (emphasis added). That was the case because “the gravamen

of the whole proceeding” there was a subject for judicial—and not Congressional—

inquiry. Id.

Applicants’ selective quotation of individual words from lengthy opinions and

their assertions that those snippets state rules of law does not present a substantial

issue for this Court to review. That is especially true because the holdings of those

cases, as well as others, contradict the propositions for which Applicants cite them.

This Court has repeatedly reaffirmed that courts must determine whether a valid

legislative purpose is present, not whether some other purpose is absent. That is

15
undoubtedly why no judge of the court of appeals—not Judge Rao in either of her

dissents or Judge Katsas in his dissent from the denial of rehearing en banc—

expressed agreement with Applicants on the primary issue they say this Court

should review.

b. Applicants also want this Court to decide whether “laws requiring the

President to make financial disclosures [are] constitutional.” Stay App. 19. But, as

Applicants themselves recognize, a “subpoena-enforcement action” is “not the most

practical method of inducing courts to answer broad questions broadly.” Stay App.

24 (quotation marks omitted). This case presents a particularly poor vehicle for this

Court’s sweeping review of that broad question.

The court of appeals discussed the constitutionality of disclosure laws in the

context of determining that the Mazars subpoena concerned a subject on which

legislation “may be had.” App. 45 (quoting Eastland, 421 U.S. at 508). In

conducting this inquiry, the court recognized that it must “tread carefully,” because

courts’ “limited judicial role gives [them] no authority to reach out and strike down

a statute before it is even enacted.” App. 36 (quotation marks omitted). Addressing

potential laws that “would require the president to do nothing more than disclose

financial information,” App. 38, the court rejected Applicants’ claim “that the

Constitution prohibits even these,” App. 39. After carefully assessing the

Constitution’s text, this Court’s precedents, statutes, and historical practice, see

App. 39-44, the court concluded that “Congress can require the President to make

reasonable financial disclosures without upsetting” the balance of powers, App. 44.

16
The court further observed that such financial disclosure laws were only one of the

many “potentially fertile grounds from which constitutional legislation” relevant to

the subpoena “could flower.” App. 45.

Rejecting the court of appeals’ caution, Applicants want this Court to strike

down all Presidential disclosure laws, both existing laws and all hypothetical laws

that could ever be written. See Stay App. 19-22; see also App. 40-41 (citing certain

existing laws, including the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342(c),

and the Ethics in Government Act, 5 U.S.C. app. 4 § 102(a)).

But there is no reason to think that the court of appeals decided this question

incorrectly. Applicants’ argument that Presidential financial disclosure laws

unconstitutionally alter or expand the qualifications to serve as President under

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), is incorrect. In Thornton,

the Court held that a law prohibiting long-term incumbents from appearing on the

ballot was unconstitutional because it (1) had “the likely effect of handicapping a

class of candidates and [(2)] ha[d] the sole purpose of creating additional

qualifications indirectly.” Id. at 836. Financial disclosure laws suffer from neither

of those flaws, as they require only disclosure of information.

Even if there were valid grounds for challenging the court of appeals’

conclusion, this is the wrong case for this Court to review this issue. This Court

avoids “abstract determination[s]” of the constitutionality of hypothetical,

unenacted statutes “on an uncertain or hypothetical state of facts.” Nashville, C. &

St. L. Ry. v. Wallace, 288 U.S. 249, 262 (1933). And making such an abstract

17
determination as to the constitutionality of all conceivable Presidential financial

disclosure laws in a time-sensitive challenge to the constitutionality of a

Congressional subpoena would be particularly unwarranted. If the President

believes financial disclosure laws are unconstitutional as applied to him, he could

challenge those existing laws or veto new bills passed by Congress.

c. Finally, Applicants’ argument that the House Rules “do not authorize” the

subpoena concerns an issue that is neither important enough for this Court’s review

nor relevant any longer to this case. Stay App. 22; see Stay App. 22-26. As

Applicants have acknowledged, “literally read, the [House] Rules permit the

Committee to issue the challenged subpoena.” App. 58 (citing Appellants’ Reply Br.

49); see App. 55 (noting same concession at oral argument). Applicants intend to

ask this Court to invent a super-clear-statement rule that would require the House

to amend its Rules to expressly authorize subpoenas concerning the President (in a

case where the subpoena was issued to a third-party records custodian). Stay App.

22-23. Such a judicial invasion of the House’s prerogative to “determine the Rules

of its Proceedings,” U.S. Const., art. I, § 5, cl. 2, would create, not avoid,

constitutional concerns. After all, “interpreting a congressional rule differently

than would the Congress itself, is tantamount to making the Rules—a power that

the Rulemaking Clause reserves to each House alone.” App. 62 (quotation marks

omitted).

But even if Applicants’ request had any basis, it is no longer relevant. After

oral argument in the court of appeals, the House enacted a resolution ratifying “all

18
subpoenas previously issued . . . concerning the President in his personal or official

capacity . . . [and] his . . . business entities.” H. Res. 507, 116th Cong. (2019). That

resolution “confirms what the Trump Plaintiffs admit—that the plain text of the

House Rules authorizes the subpoena,” and “provides what the Trump Plaintiffs

request—that the House spell out its intention by adopting a resolution which in

express terms authorizes the challenged subpoena.” App. 64 (quotation marks

omitted). There is no reason for this Court to take up this moot issue.

2. In dissenting from the court of appeals’ decision denying rehearing en

banc, Judge Katsas suggested that this case “presents exceptionally important

questions regarding the separation of powers,” App. 138, but he did not say what

those questions are. It has long been “settled that the President is subject to

judicial process in appropriate circumstances.” Clinton v. Jones, 520 U.S. 681, 703-

04 (1997) (citing United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (C.C. Va. 1807)

(Marshall, C.J.)). Here, as in Clinton v. Jones, the President does not claim that the

information sought concerns his “action[s] taken in an official capacity.” Id. at 694.

The subpoena at issue here is not directed to the President; in any event, this Court

has “unequivocally and emphatically endorsed” the view that “a subpoena duces

tecum could be directed to the President.” Id. at 703-04 (citing United States v.

Nixon, 418 U.S. 683 (1974)).

This Court therefore has established that even a private citizen may invoke

the courts’ subpoena power against the President in appropriate cases. In light of

19
that settled law, it would hardly make sense to say that Congress, a coordinate

branch, cannot use its own subpoena power in a matter involving the President.

The subpoena here is directed to an accounting firm. “This is hardly the first

subpoena Congress has issued[;] legislative subpoenas are older than our country

itself[.]” App. 11. This Court has repeatedly upheld Congress’s ability to issue such

subpoenas. See, e.g., Eastland, 421 U.S. 491 (1975); Barenblatt, 360 U.S. 109

(1959); Sinclair, 279 U.S. 263 (1929). This Court has upheld such subpoenas issued

to third parties close to Executive officials. E.g., McGrain v. Daugherty, 273 U.S. at

152, 179-80 (upholding subpoena to brother of Attorney General and rejecting

“objection to the investigation that it might possibly disclose crime or wrongdoing

on [the Attorney General’s] part”). What is more, Congress has long issued process

to obtain documents from Presidents and persons close to them, so that “such

interactions . . . can scarcely be thought a novelty.” Jones, 520 U.S. at 704; see

Appellee’s Response to Amicus Curiae Br. for the United States, at 4-7 (describing,

among other things, Congress’s subpoena of law firm billing records discovered in

the White House Residence during the Whitewater investigation and its use of

statutory process to obtain President Nixon’s tax records).

Judge Katsas suggested that greater judicial superintendence of Congress’s

interactions with the President and parties close to him is required, but Judge

Katsas did not suggest any line that would distinguish between constitutionally

permissible oversight and impermissible Congressional harassment. The lack of

any sharpened legal positions, and the absence of any party advancing such

20
positions, counsel against any attempt by this Court to draw such lines in the first

instance. Finally, Judge Katsas’s suggestion that the subpoena should be reviewed

and quashed because it seeks unprivileged materials gets things backward. App.

138-39. That factor counts in favor of prompt production, not against it.

As Judge Katsas’s dissent from rehearing en banc reflects, this case was

litigated in both courts below on the premise that the subpoenaed accounting

records are unprivileged. See App. 138 (“this case involves personal records and no

privilege assertion”); see also App. 20-21 (“Nor do the Trump Plaintiffs assert any

property rights in, or executive or other recognized evidentiary privilege over, the

subpoenaed information.”). Applicants’ privilege assertion in this Court (at 28 n.2)

was not raised in merits briefing below and is forfeited. Moreover, it reinforces that

this case—in which Applicants advance arguments accepted by no judge below as

well as arguments not even raised below—is not suitable for review by this Court.

3. Applicants do not ask this Court to adopt the reasoning advanced by

Judge Rao’s panel dissent, and this Court should not do so. No party or amicus

below advanced Judge Rao’s novel theory that investigations concerning potential

wrongdoing by an impeachable official may be pursued only through formal

impeachment proceedings. See App. 22 (“all parties here agree that ‘a permissible

legislative investigation does not become impermissible merely because it might

expose law violations[]’” (quoting Appellants’ Br. 33)). Judge Rao’s arguments have

not been vetted by adversarial briefing in any court. See Dep’t of Transp. v. Ass’n of

Am. R.Rs., 135 S. Ct. 1225, 1234 (2015) (This Court is “a court of final review and

21
not first view.”). And, as the majority observed, “no case law supports the dissent.”

App. 49.

Further, Judge Rao’s sweeping rationale, if adopted, would force the House at

a very early stage of an investigation to pursue the impeachment of any

impeachable officer without first informing itself about the scope or significance of

the conduct at issue, and without gathering sufficient information to determine

whether new legislation would serve the country better than an impeachment

inquiry. As the majority below observed, that approach would force “Congress to

abandon its legislative role at the first scent of potential illegality and confine itself

exclusively to the impeachment process.” App. 46.

4. Finally, there is an additional reason that the case is not fit for this

Court’s review: the House is now engaged in an impeachment inquiry, which would,

under both Applicants’ and Judge Rao’s theory, justify the subpoena issued here.

See, e.g., Appellants’ Br. 45 (“While Congress could presumably use subpoenas to

advance [its] nonlegislative [impeachment] powers, the Committee has not invoked

them.”); App. 70. Thus, even if the Court were to grant review and reverse, the

House could quickly issue a new subpoena that should satisfy their objections.

This is not an argument on the merits that “a defective subpoena can be

revived by after-the-fact approval,” as Judge Rao incorrectly characterized it in her

dissent from denial of rehearing en banc. App. 141. Instead, it is a reason that this

Court should deny discretionary review. There is no need for this Court to make

22
definitive pronouncements on the scope of Congress’s powers in a case in which its

ruling will be so limited in application and consequence.

B. The irreparable harm that a stay would cause Congress and the
public outweighs whatever harm enforcement of the subpoena
would cause Applicants.

“Before issuing a stay, it is ultimately necessary to balance the equities—to

explore the relative harms to applicant and respondent, as well as the interests of

the public at large.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087

(2017). Contrary to Applicants’ suggestion (at 13), the Court considers the balance

of equities in all cases, not just in the subset of cases thought to be “close” ones. See

id.; Barnes, 501 U.S. at 1304-05; see also Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 24 (2008) (balance of equities must be considered “[i]n each case” before

awarding the “extraordinary remedy” of a preliminary injunction).

Here, each day of delay harms Congress by depriving it of important

information it needs to carry out its constitutional responsibilities. That harm

outweighs any harm Applicants might suffer from Mazars’ compliance with the

subpoena.

1. “[T]he House, unlike the Senate, is not a continuing body.” Eastland, 421

U.S. at 512. Its current term ends on January 3, 2021. The House has “pending

several pieces of legislation related to the Committee’s inquiry.” App. 27. But

Congress “cannot legislate wisely or effectively in the absence of information

respecting the conditions which the legislation is intended to affect or change.”

McGrain, 273 U.S. at 175. Legislation cannot be enacted overnight; the opportunity

23
for the Committee to receive the information sought by the subpoena, evaluate its

relevance to potential legislation, incorporate that information into a bill or bills,

and push that legislation through the entire bicameral process diminishes by the

day and may be lost well before January 3, 2021.

Applicants’ response is to argue that the information the Committee seeks

would not be all that useful to the House’s legislative agenda and that none of the

House’s proposed legislation will be enacted. See Stay App. 30. But courts correctly

refuse to second-guess “[t]he wisdom of congressional approach or methodology” or

to judge “the legitimacy of a congressional inquiry” by whether it has a “predictable

end result.” Eastland, 421 U.S. at 509 (citing Doe v. McMillan, 412 U.S. 306, 313

(1973)); see id. at 506 (“The courts should not go beyond the narrow confines of

determining that a committee’s inquiry may fairly be deemed within its province.”).

After all, even if Applicants were correct that agreement with the Senate is at

present unlikely, the information the House seeks could, once obtained, change

legislators’ minds and make what once seemed unlikely inevitable. See App. 34

(Congress’s “preferred path forward may shift as members educate themselves on

the relevant facts and circumstances.”).

The subpoenaed documents are also essential to the Committee’s oversight of

the Executive Branch. Congress requires the “necessary constitutional means” to

preserve the “distribution of . . . powers” and to “control the abuses of government.”

FEDERALIST NO. 51; see also United States v. Rumely, 345 U.S. 41, 43 (1953) (“It is

the proper duty of a representative body to look diligently into every affair of

24
government[.]”). The Committee is examining whether federal officials—including

the President—are making decisions in the Nation’s best interest and not for their

own gain.

The House’s rapidly advancing impeachment inquiry also makes it

particularly important that Congress not be deprived of the information sought by

the subpoena. It matters little that the Committee did not originally seek the

information in question pursuant to the House’s impeachment power. Now that the

House is exercising its grave constitutional responsibilities under that power, it

should be fully informed with all the information to which it is entitled—including

information it had previously sought for legislative purposes. There is no

requirement that this Court, in balancing the equities, be blind to all the harms

that depriving Congress of information would cause simply because some of the

harms were not present at the beginning of the case. See, e.g., United States v. W.

T. Grant Co., 345 U.S. 629, 633 (1953) (“The chancellor’s decision is based on all the

circumstances.”).

For substantially similar reasons, “the interests of the public at large,”

Barnes, 501 U.S. at 1305, are furthered, not harmed, by an informed Congress.

2. Applicants do not articulate any valid reason why any harm they would

suffer without a stay would outweigh the harms to Congress and the public if a stay

were granted. See id.

Their primary argument is that, without a stay, they may be deprived of the

opportunity for this Court’s review. Stay App. 26-29. But the President has no

25
right to this Court’s review of every case in which he seeks it. See, e.g., Office of

President v. Office of Indep. Counsel, 525 U.S. 996 (1998); Rubin v. United States,

525 U.S. 990 (1998), and Office of President v. Office of Indep. Counsel, 521 U.S.

1105 (1997) (each denying certiorari in cases in which information concerning the

President was ordered to be disclosed).

This Court also should reject Applicants’ argument that they are at least

entitled to a stay pending certiorari: it cannot be the case that the President has the

right to stall any Congressional subpoena to which he objects through the months or

years that it takes for a challenge to work its way through the lower courts and for

this Court then to grant or deny certiorari. If that were the case, the House—which

has only a two-year term—would be radically constrained in its ability to conduct

oversight or to collect information about the Executive Branch. Cf. Office of

President v. Office of Indep. Counsel, No. A-108, 1998 WL 438524, at *1 (U.S. Aug.

4, 1998) (Rehnquist, C.J., in chambers) (denying stay pending certiorari in case

concerning information about the President); Rubin v. United States, 524 U.S. 1301,

1302 (1998) (Rehnquist, C.J., in chambers) (same); Packwood v. Senate Select

Comm. on Ethics, 510 U.S. 1319 (1994) (Rehnquist, C.J., in chambers) (denying

Senator’s request for stay of Congressional subpoena pending certiorari).

Applicants’ suggestion is even less appropriate now, as the House is

conducting an impeachment inquiry. The President certainly has no right to dictate

the timetable by which third parties provide information that could potentially be

26
relevant to that inquiry, or to enlist this Court’s aid in doing so on the basis of

arguments that have been rejected by each court to have considered them.

Further, the documents the Committee seeks from Mazars do not contain

trade secrets, privileged information, or other highly sensitive information (such as

law enforcement information). That distinguishes this case from all the cases they

cite. 5 That the information is “confidential,” according to Applicants, and that they

do not want Mazars to produce it, Stay App. 27-28, does not establish any more

irreparable harm than exists in routine civil discovery disputes.

Nor does the fact that the subpoena to Mazars seeks the personal financial

records of the President change the calculus, particularly given “[t]he history of past

Presidents’ financial disclosures.” App. 41; see App. 40-42. “In fact, Presidents

Carter, Reagan, H.W. Bush, Clinton, W. Bush, and Obama . . . release[ed] their

personal federal income tax returns to the public.” App. 42. Although the political

consequences of the release of the information sought here might differ from past

5 See Stay App. 27-31 (citing Eastland, 421 U.S. at 492-93 (concerning
“records of an organization which claims a First Amendment privilege status for
those records”); John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989) (Marshall,
J., in chambers) (apprising targets of a law enforcement investigation); Mikutaitis v.
United States, 478 U.S. 1306, 1307 (1986) (Stevens, J., in chambers) (information
subject to Fifth Amendment privilege that may be “used by the Soviet Union in a
criminal proceeding against” applicant); Araneta v. United States, 478 U.S. 1301,
1305 (1986) (information subject to Fifth Amendment privilege); Maness v. Meyers,
419 U.S. 449, 460 (1975) (same); Providence Journal Co. v. Fed. Bureau of
Investigation, 595 F.2d 889, 889 (1st Cir. 1979) (the “results of an unauthorized and
illegal wiretap”); Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467, 499-500
(S.D.N.Y. 2019) (the “names and addresses of hosts” and other “sensitive
information” the seizure of which would likely violate the Fourth Amendment);
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bishop, 839 F. Supp. 68, 71 (D. Me.
1993) (“trade secrets, customer lists, and other confidential information”)).
27
administrations, “[t]o expect judges to take account of political consequences—and

to assess the high or low degree of them—is to ask judges to do precisely what they

should not do.” Cheney v. U.S. Dist. Court for D.C., 541 U.S. 913, 920 (2004) (Scalia,

J., in chambers). If anything, any heightened significance of the information

underscores the importance that the information be promptly provided to Congress.

And, further, “[t]he courts must presume that the committees of Congress will

exercise their powers responsibly and with due regard for the rights of affected

parties.” Exxon Corp. v. FTC, 589 F.2d 582, 589 (D.C. Cir. 1978).

For these reasons, the “likelihood that denying the stay will permit

irreparable harm to the applicant [does] not clearly exceed the likelihood that

granting it will cause irreparable harm to others.” Barnes, 501 U.S. at 1305. Any

harm Applicants might suffer, even if “likely,” would be “vastly less severe,” id.,

than the harm in depriving the peoples’ representatives of information they need to

exercise their constitutional responsibilities wisely before their time for doing so

expires. Accordingly, the stay request should be denied.

II. If The Court Nevertheless Grants a Stay, It Should Order Expedited

Briefing On Applicants’ Forthcoming Petition For Certiorari

If the Court grants the stay, the Committee requests that the Court order

expedited briefing of Applicants’ forthcoming petition for certiorari. 6 Applicants

should be required to file their petition for certiorari by December 2, 2019, and the

Committee will then file its brief in opposition by December 11, so that the Court

6 Alternatively, the Court could treat the stay application as a petition for
certiorari. See, e.g., Nken v. Mukasey, 555 U.S. 1042, 1042 (2008); Purcell v.
Gonzalez, 549 U.S. 1, 2 (2006).
28
may consider the petition at its conference of December 13. See, e.g., Int’l Refugee

Assistance Project, 137 S. Ct. at 2085 (at Solicitor General’s request, response to

certiorari petition ordered to be filed within 12 days of petition). Such “expeditious

treatment,” Eastland, 421 U.S. at 511 n.17, would reduce, at least to some extent,

the serious harms a stay would cause to Congress.

CONCLUSION

For the foregoing reasons, the application for a stay should be denied.

Respectfully submitted,

Lawrence S. Robbins Douglas N. Letter

Roy T. Englert, Jr. Counsel of Record
Alan D. Strasser Todd B. Tatelman
Jennifer S. Windom Megan Barbero
D. Hunter Smith Josephine Morse
ROBBINS, RUSSELL, ENGLERT, ORSECK, Adam A. Grogg
UNTEREINER & SAUBER LLP Jonathan B. Schwartz
2000 K Street NW, 4th Floor OFFICE OF GENERAL COUNSEL
Washington, D.C. 20006 U.S. HOUSE OF REPRESENTATIVES
(202) 775-4500 219 Cannon House Building
lrobbins@robbinsrussell.com Washington, D.C. 20515
(202) 225-9700
douglas.letter@mail.house.gov

November 21, 2019

29
RESPONDENT’S SUPPLEMENTAL APPENDIX
 TABLE OF CONTENTS
Page

Memorandum from Chairman Elijah E. Cummings to Members of the Committee

on Oversight and Reform, Re: Notice of Intent to Issue Subpoena to Mazars
USA LLP (April 12, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SA1
 Case 1:19-cv-01136-APM Document 30 Filed 05/13/19 Page 18 of 79
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