With the unprecedented indictment of a former president likely imminent, we must prepare for another first in our nation’s history — attempted congressional interference with a state prosecution of a former president. Although no charges have yet been filed against Donald Trump, congressional interference has already begun, with GOP Reps. Jim Jordan, Bryan Steil and James Comer sending a letter to the Manhattan district attorney requesting documents and testimony before the so-called weaponization of the federal government subcommittee panel.
Congress cannot lawfully use its investigative power to engage in law enforcement.
Congress cannot lawfully use its investigative power to engage in law enforcement. But we argue that is precisely what these congressmen are attempting by seeking to second-guess and superintend a single specific pending case by a prosecutor. Any move to issue a subpoena demanding Manhattan District Attorney Alvin Bragg appear in Washington should be viewed as meddling that is both brazenly partisan and probably unlawful.
The Constitution itself is silent on the power of Congress to engage in investigations. But it has been understood since the very first Congress that the legislative body has such implied powers within Article I. The bounds of those powers have been challenged ever since — notably by Trump himself.
While Trump was president, House lawmakers fought to access his tax returns, eventually issuing his accounting firm, Mazars, with a subpoena. Trump intervened and the ensuring legal battle culminated in Trump v. Mazars USA, LLP. The Supreme Court noted that the “congressional power to obtain information is ‘broad’ and ‘indispensable.’” But it also noted that the power has limitations, noting, for example, that “a congressional subpoena is valid only if it is ‘related to, and in furtherance of, a legitimate task of the Congress.’” The court also noted subpoenas should not be overly broad,…
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