Kilbourn v. Thompson

I am, admittedly, going with the syllabus of this case, rather than the text, for the ease of my audience (and me; I'm too lazy to wade through some of the historical arguments about the powers of Parliament v. the powers of the U.S. Congress).  But the case in summary is this:

6. The Constitution divides the power of the government which it establishes into the three departments -- the executive, the legislative, and the judicial -- and unlimited power is conferred on no department or officer of the government. It is essential to the successful working of the system that the lines which separate those departments shall be clearly defined and closely followed, and that neither of them shall be permitted to encroach upon the powers exclusively confided to the others.

7. That instrument has marked out, in its three primary articles, the allotment of power to those departments, and no judicial power except that above mentioned is conferred on Congress or on either branch of it. On the contrary, it declares that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.

8. The resolution of the House under which K. was summoned and examined as a witness directed its committee to examine into the history and character of what was called "the real estate pool" of the District of Columbia, and the preamble recited, as the grounds of the investigation, that Jay Cooke & Co., who were debtors of the United States, and whose affairs were then in litigation before a bankruptcy court, had an interest in the pool or were creditors of it. The subject matter of the investigation was judicial, and not legislative. It was then pending before the proper court, and there existed no power in Congress, or in either House thereof, on the allegation that an insolvent debtor of the United States was interested in a private business partnership, to investigate the affairs of that partnership, and consequently no authority to compel a witness to testify on the subject.

9. It follows that the order of the House declaring K. guilty of a contempt of its authority and ordering his imprisonment by the sergeant-at-arms is void, and affords the latter no protection in an action by K. against him for false imprisonment.

What I draw from that, relevant to a conversation about Trump suing to protect his tax records from discovery by the House of Representatives, is that paragraph 6 is a brief reaffirmation of the separation of powers doctrine, especially as it applies to cases where the Court is asked to review the powers of one of the other branches.  That (if not in this particular, then in general) is going to be an important consideration with the cases and, eventually, suits to enforce subpoenas, going forward.  Paragraph 7 is about the judicial power, and more peculiar to the facts of Kilbourn than need interest us.

Paragraph 8 is a statement of facts of the case, and these are of some interest.  Essentially, the House was investigating the "real estate pool" of D.C., over which it has authority.   A private firm was in bankruptcy court, but was also creditors of the pool.  This is important because "The subject matter of the investigation was judicial, and not legislative."  I assume that means the Congressional investigation was triggered by the bankruptcy filing.  That filing however, the Court holds, blocked Congress from investigating matters which were the subject of a judicial proceeding, and annulled any authority to compel the witness (subpoena, "under penalty") to testify.  Congress overreached when it arrested the witness and imprisoned him under their "inherent powers."

It should be noted the witness refused to testify, and refused to produce documents sought by subpoena duces tecum (come on, how often do I get to use my legal Latin?). A subpoena duces tecum is precisely what the House sent to Trump's accountants in this case (and to Deutsche Bank and Capital One in the other pending litigation).  The issue in Kilbourn is not whether Congress had this authority, but whether they had this authority under these facts.  Now heads up, here comes some rather important language in the decision:

The House of Representatives having the exclusive right to originate all bills for raising revenue, whether by taxation or otherwise; having with the Senate the right to declare war, and fix the compensation of all officers and servants of the government, and vote the supplies which must pay that compensation, and being also the most numerous body of all those engaged in the exercise of the primary powers of the government -- is for these reasons least of all liable to encroachments upon its appropriate domain.

By reason, also, of its popular origin and the frequency with which the short term of office of its members requires the renewal of their authority at the hands of the people -- the great source of all power in this country -- encroachments by that body on the domain of coordinate branches of the government would be received with less distrust than a similar exercise of unwarranted power by any other department of the government. It is all the more necessary, therefore, that the exercise of power by this body, when acting separately from and independently of all other depositaries of power, should be watched with vigilance, and when called in question before any other tribunal having the right to pass upon it, that it should receive the most careful scrutiny.

I mention this in part to respond to the screamers I read on the intertoobs who wonder why all of Trump's cabinet isn't behind bars by now, starting with his Attorney General.  If the Congress seems to be treading carefully here, it's because they have to.  The courts want good reasons to enforce extraordinary Congressional actions like jailing for contempt of Congress.

There is further language here about the legislative documents passed in support of the motion for contempt; many are found too vague to support the claim of Congressional power asserted before the court, especially (and this is key) when the House entered into a case pending in federal court (bankruptcy) and interfered with that proceeding.  The Court, in other words, is guarding its turf here.  This language in particular would give some pause today, although it is merely dicta and to the extent it is not consistent with Eastland, from 100 years later, it is effectively overruled:

The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress on the subject. In all the argument of the case, no suggestion has been made of what the House of Representatives or the Congress [p195] could have done in the way of remedying the wrong or securing the creditors of Jay Cooke & Co., or even the United States. Was it to be simply a fruitless investigation into the personal affairs of individuals? If so, the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country. By "fruitless," we mean that it could result in no valid legislation on the subject to which the inquiry referred.

I suspect this is where Trump's lawyers were hanging their hats this morning before Judge Mehta.  I don't expect this argument to get a friendlier hearing in other courts, either.  This is just as important a consideration, although it does Trump's lawyers no good at all:

What was this committee charged to do?

To inquire into the nature and history of the real estate pool. How indefinite! What was the real estate pool? Is it charged with any crime or offence? If so, the courts alone can punish the members of it. Is it charged with a fraud against the government? Here, again, the courts, and they alone, can afford a remedy. Was it a corporation whose powers Congress could repeal? There is no suggestion of the kind. The word "pool" in the sense here used, is of modern date, and may not be well understood, but, in this case, it can mean no more than that certain individuals are engaged in dealing in real estate as a commodity of traffic, and the gravamen of the whole proceeding is that a debtor of the United States may be found to have an interest in the pool. Can the rights of the pool, or of its members, and the rights of the debtor, and of the creditor of the debtor, be determined by the report of a committee or by an act of Congress? If they cannot, what authority has the House to enter upon this investigation into the private affairs of individuals who hold no office under the government.

I would note there are no court proceedings that the House is interfering with in the case before Judge Mehta, or in any other case where Trump is trying to quash subpoenas of his financial records.  That distinguishes Kilbourn almost immediately.  No rights of any pool, or its members, or any party to any judicial proceeding, will be "determined by the report of a committee or by an act of Congress."  And the inquiry is into the affairs of the President, not "into the private affairs of individuals who hold no office under the government."  Why is that important?  Because it's not dicta, it's part of the basis of the legal conclusions:

We are of opinion, for these reasons, that the resolution of the House of Representatives authorizing the investigation was in excess of the power conferred on that body by the Constitution; that the committee, therefore, had no lawful authority to require Kilbourn to testify a a witness beyond what he voluntarily chose to tell; that the orders and resolutions of the House, and the warrant of the speaker, under which Kilbourn was imprisoned are, in like manner, void for want of jurisdiction in that body, and that his imprisonment was without any lawful authority.

The remainder of the opinion deals with the false imprisonment charge leveled against the House sergeant-at-arms who arrested Kilbourn.

This is the primary case upon which Trump's lawyers rested their argument that the subpoenas should be quashed.  Their argument was that Congress had no "legitimate legislative purpose" in seeking the information, but Kilbourn doesn't stand for that proposition.  Kilbourn stands for the proposition that the courts will jealously defend their prerogatives, and one of those is that neither branch can interfere in a judicial proceeding (when government officials say they can't comment on cases that are pending in litigation, they mean in part they don't want to be called as inadvertent witnesses, but they also don't want to be blamed for interfering with the outcome or the court's functions).  The implications of the decision do create what is called the "Kilbourn Test," but Eastland makes it clear that just as Congress can't interfere in judicial proceedings, the Courts cannot presume to be the arbiter of what is proper "Congressional intent."*

This is the only precedent Trump's lawyers could cite this morning.  That's not very solid ground for a legal argument.


*So the "test" doesn't mean a lot, IMHLO.