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Tuesday, March 10, 2020

Peter Gruber Rule of Law Clinic Files SCOTUS Brief in Congressional Subpoenas Matter

On March 4, 2020, the Peter Gruber Rule of Law Clinic at Yale Law School filed an amicus brief in support of respondents at the United States Supreme Court in the consolidated cases of Trump v. Mazars USA and Trump v. Deutsche Bank AG, which the Court will hear on March 31, 2020. In this case, the Clinic represents 20 high-ranking former national security, foreign policy, homeland security, intelligence, and other public officials, including former CIA Directors or Acting Directors Michael Hayden, John Brennan, and Mike Morell; former Director of National Intelligence Jim Clapper; former Deputy Secretaries of State Strobe Talbott and Jim Steinberg; former Director of the National Counterterrorism Matt Olsen and former Undersecretary of State for Political Affairs Wendy Sherman.

In these cases, the D.C. and Second Circuits upheld congressional subpoenas from the House Committee on Oversight and Reform directed at President Trump’s accounting firm, Mazars USA, and from the House Committee on Financial Services and the House Permanent Select Committee on Intelligence directed at the president’s lenders. The subpoenas direct these companies to turn over unprivileged financial records currently in their possession concerning the president and his businesses spanning years both before and during his presidency. The Committees sought the information: first, to illuminate acts of money laundering or other corrupt and illicit finance; second, to clarify whether there are ongoing efforts by foreign adversaries to interfere with our internal or governmental affairs or influence our political processes; and third, to inform potential legislation and additional oversight on these matters, including actions to protect the integrity of the executive branch from financial or foreign influence.

“History and practice teach that Congress has an essential role to play in checking the executive branch in precisely the areas of national security concern addressed by these subpoenas,” said clinic co-head Phil Spector ’00. “The exceptions to congressional oversight that President is seeking in this case would expose the nation to the very vulnerabilities the framers sought to prevent, and that they designed a Constitution to avert.”

While amici take no position on the factual allegations raised by the subpoenas, they argue in support of the Committees’ requests. In amici’s experience, these issues rank among the most grave and enduring threats to U.S. national security. Amici have worked on these matters at the senior-most levels of the U.S. government, in presidential administrations of both major political parties. They have held the highest security clearances in the U.S. government, and devoted their careers to combating the security threats that the United States faces in an interconnected and dynamic world.  Amici argue first, that money laundering and illicit foreign influence backed by illegal finance rank among the most serious current threats to U.S. national security; second; that the framers foresaw these threats and accordingly, gave Congress an indispensable historical oversight and investigative role in protecting the nation from these threats; and third, that judicial creation of a new exception to this longstanding congressional authority for subpoenas relating to the President would leave the nation unacceptably vulnerable to serious national security harm.

“Amici make the simple argument that the Court would cause serious policy harm by creating a new judicial exception to immunize the Presidency from lawful oversight in the areas of money laundering and foreign influence,” said Rule of Law Clinic co-head Harold Hongju Koh. “The Court should not be in the business of generating national security blind spots. These are not areas where the public can monitor without information, where the Executive Branch can self-regulate, and where Congress can responsibly exercise oversight, except through reliable exercise of the subpoena power.”

Clinic members who worked on the brief include: team leader Danielle Zucker ’20; Hirsa Amin ’21, Rosa Hayes ’20, Dana Khabbaz ’21, Randi Michel ’22, Michael Loughlin ’21, and Mark Stevens ’21.

“In our democratic republic, national security is a realm of shared congressional and executive authority,” said Hayes. “At a time when the president flagrantly violates established rule of law norms governing national security, it seems especially important to defend an effective interbranch check on abuses of power.”

“As someone who previously helped prepare countless documents responding to Congressional committee questions while working at the U.S. Department of State, I recognize and appreciate Congress’s crucial responsibility to seek information that facilitates oversight and lawmaking in national security,” said Stevens. “I was therefore eager to assist amici in ensuring the Supreme Court is fully aware of this historical role as it reviews the House committees’ authority to issue the subpoenas in question.”

They were led on this matter by Clinic co-heads Harold Hongju Koh, Sterling Professor of International Law, and Phil Spector ’00, Visiting Lecturer in Law. The Peter Gruber Rule of Law Clinic was cofounded in late 2016 by Koh, Spector, William O. Douglas Clinical Professor of Law Michael Wishnie ’94 and Visiting Lecturer in Law Hope Metcalf to address rule of law challenges in such areas as national security, climate change, gerrymandering and the census, antidiscrimination, and free speech.