Mazars Creep and the Jan. 6 Committee

According to Stanley Brand, the former general counsel to the House of Representatives, the House select committee probe into the Jan. 6 Capitol riot is “the mother of all investigations.” It’s “a quantum leap for Congress in a way I’ve never seen before,” Brand told the New York Times recently.

The committee has been working since July 2021 to uncover the facts about what happened during the assault on Congress and in the lead-up to the riot. According to the Times, the investigation so far appears to be of unusually vast breadth, and the committee is pushing forward assertively in its work.

All this, as Brand argues, may make the Jan. 6 committee’s investigation different from that of other congressional inquiries before it. But as the committee chooses its tactics, its work is also shaped by the shadow of Trump v. Mazars—the Supreme Court’s 2020 ruling on Congress’s ability to investigate the president. The court found that a sitting president’s personal information is not shielded from congressional investigation, but it also established a new, stricter test under which the legislature must convince courts that the material should be handed over to Congress. The Jan. 6 committee represents the most high-profile congressional investigation since Mazars was decided—and a study of the committee’s work shows how Mazars is guiding that work.

On its face, the scope of the Supreme Court’s ruling in Mazars was relatively limited: The case concerned the particular separation-of-powers issues raised by congressional subpoenas for private material regarding the sitting president. At issue in Mazars were several subpoenas issued by House committees seeking Trump’s financial records from the president’s accountants, which Trump sued to block. The Supreme Court endorsed the legislature’s constitutional power to investigate the president’s personal matters, as long as this work was in service of Congress’s constitutional power to legislate.

But the justices also established a new four-factor test in view of the separation of powers concerns raised by such an investigation. In evaluating congressional efforts to obtain such information, the court wrote, judges should examine “whether the asserted legislative purpose warrants the significant step of involving the President and his papers”; study whether the subpoena is “no broader than reasonably necessary”; “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose”; and “assess the burdens imposed on the President by a subpoena.”

The requirement that congressional investigations serve a “valid legislative purpose” long predates Mazars. In McGrain v. Daugherty, concerning a congressional investigation into the Teapot Dome scandal under the Harding administration, the Supreme Court found that “the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” Later, in several postwar rulings batting back the House Un-American Activities Committee, the Supreme Court emphasized that Congress may not “expose for the sake of exposure” or seek to play the role of law enforcement. Beyond that, though, courts tended to be deferential to Congress’s own representation of its legislative interests. It was enough to show that the matter under investigation was “a subject on which legislation ‘could be had.’” There was no need for Congress to provide evidence of what that legislation might look like. As Judge Amit Mehta wrote in his initial district court opinion on the House Oversight Committee’s subpoena to Trump’s accountants, “To be sure, there are limits on Congress’s investigative authority. But those limits do not substantially constrain Congress.” The Supreme Court’s holding in Mazars gave Congress a far shorter leash—at least when it came to the president’s personal information.

At the time, scholars and commentators were divided on what to make of Mazars and what the case meant for Congress. Was it a full victory for the legislature, in that the Supreme Court had provided a judicial stamp of approval to its investigatory power? Or was it a new constraint on Congress, in that its previously expansive authority to investigate was now, at least in some instances, subject to specified review and approval by judges? A year and a half later, the answer to this question is still not entirely clear. But the committee’s work, and the surrounding litigation, suggests that Mazars may be creeping outside its originally constrained scope to influence congressional investigations—and judicial oversight—more broadly.

Mazars in the Jan. 6 Litigation

Given that Mazars represented a major development in oversight jurisprudence, it’s unsurprising that the case is playing a central role in the Jan. 6 committee’s efforts to secure information about the attack. Indeed, the committee is consistently relying on the elements of the decision that buttress congressional power to make its case for securing cooperation from individuals. The case is cited in all three reports issued by the committee in support of finding recalcitrant witnesses—Trump associate Steve Bannon, former Trump Chief of Staff Mark Meadows and former Justice Department official Jeffrey Clark—in contempt of Congress. In each report, the committee points to the Supreme Court’s admonition in Mazars that, “[w]hen Congress seeks information ‘needed for intelligent legislative action,’ it ‘unquestionably’ remains ‘the duty of all citizens to cooperate.’” And it also quotes the court’s statements that “[t]he power of the Congress to conduct investigations is inherent in the legislative process” and that, “[a]bsent such a power, a legislative body could not ‘wisely or effectively’ evaluate those conditions ‘which the legislation is intended to affect or change.’”

Litigants suing the committee have taken the opposite approach, citing Mazars in service of their efforts to block the committee’s subpoenas and requests for information. They’ve drawn on the Mazars court’s more involved examination of legislative purpose to argue for broader constraints on, and judicial oversight of, congressional inquiries.

But a set of decisions by the U.S. Court of Appeals for the District of Columbia Circuit and the Supreme Court in the initial cases related to the Jan. 6 committee’s work may limit these arguments going forward—at least in the D.C. Circuit, where the vast majority of such cases take place.

Because of the nature of the Jan. 6 committee’s work, the lawsuits filed against the committee do not concern the type of material on which Mazars centered: private information from a sitting president. Rather, they generally involve testimony and materials held by individuals other than Trump who participated in or have knowledge of events related to the insurrection. But that hasn’t stopped litigants from pointing to Mazars in order to argue that the committee lacks a legitimate legislative purpose and that courts should therefore declare their requests null and void. (The D.C. Circuit’s 2020 en banc decision in Committee on the Judiciary v. McGahn established that the House had standing to sue to enforce subpoenas in civil court, which may have encouraged litigants to preemptively seek to block information requests under Mazars.) Taylor Budowich, a Trump spokesman suing to block a subpoena for bank records, argued that “[t]he Select Committee has failed to identify any legislative purpose served by its Subpoena. It has not considered any draft legislation, nor has it provided any explanation for why its request would further any valid legislative end.” He went on to write in a filing to the U.S. District Court for the District of Columbia that the information sought by the committee “is relevant only to serve the Select Committee’s stated purpose of engaging in ad-hoc law enforcement and its unstated purpose of antagonizing its political adversaries.”

Similar arguments have been made by former Trump National Security Adviser Michael Flynn; far-right personalities Alex Jones and Ali Alexander; and John Eastman, the law professor who provided Trump with advice on overturning the 2020 election. Before Congress found him in contempt, former Assistant Attorney General Jeffrey Clark likewise argued that “Congress lacks the power to issue or enforce subpoenas to carry out such an unlawful and plainly non-legislative purpose,” pointing to comments made by Committee Chairman Bennie Thompson about the committee determining “guilt or innocence” for the Capitol riot. And Mark Meadows, who has sued Speaker of the House Nancy Pelosi seeking an injunction against subpoenas to both him and his telecommunications provider, also cited Mazars in arguing that the committee is seeking not to legislate but instead “to usurp the Executive Branch’s authority to enforce the law and to expose what the Select Committee believes to be problematic actions by a political opponent.”

These witnesses aren’t deploying the four-factor Mazars test—given that Mazars specifically concerns the personal papers of the president, this would be a stretch. And witnesses like Jones and Alexander who never held any role in the executive branch can’t really point to separation of powers concerns raised by the committee’s subpoenas. Rather, they seem to be reading Mazars more loosely—as a signal that the judiciary is open to keeping at least those congressional investigations with some connection to the president on a shorter leash. Under this logic, judges will dig into statements of legislative purpose and examine public comments made by members of Congress rather than deferring to the legislature’s own presentation of the purpose of its work. And they’re taking the opportunity to push for the Jan. 6 committee to be reined in. So far, though, none of them has made significant headway in using Mazars to avoid compliance.

Trump, though, has sought to apply the Mazars test itself in his litigation against the committee—and, having been president, he has an at least somewhat more plausible claim to apply the case.

In Trump v. Thompson, which seeks to prevent the National Archives from providing the committee with a range of documents from the Trump White House, the former president insisted that Mazars—as it concerns “another congressional fishing expedition directed at President Trump’s records”—spoke directly to the Jan. 6 committee’s requests. The committee, according to Trump, could not satisfy the four Mazars factors; it lacked a legislative purpose, seeking only to “harass” him for political gain.

The D.C. Circuit, however, disagreed. The appeals court noted that the separation of powers concerns animating Mazars “necessarily have less traction when the request is for records from a former administration,” especially given the Biden administration’s decision to cooperate in transmitting the records to Congress.

While the judges expressed “significant doubt” about the application of the Mazars test, they nevertheless found that, “assuming [the Mazars test] appl[ied],” the committee’s investigation passed with flying colors. “The January 6th Committee plainly has a “valid legislative purpose” and its inquiry “concern[s] a subject on which legislation could be had,” the court held. It noted that the committee’s authorizing resolution, passed by the House, called for the investigators to “issue a final report to the House containing such findings, conclusions, and recommendations” for potential “changes in law, policy, procedures, rules, or regulations.” And it pointed to potential legislation that could result from the investigation—including reforms to the Electoral Count Act, which the committee itself had suggested to the court it might consider.

Elizabeth McElvein and Benjamin Wittes have described in Lawfare how the D.C. Circuit’s ruling—along with the Supreme Court’s decision to leave that ruling in place—has major implications for the universe of litigation around the Jan. 6 committee. It’s now law in the D.C. Circuit that the Jan. 6 committee does, despite Trump’s and the other witnesses’ arguments, have a legitimate legislative purpose under Mazars. That’s a blow to those who have filed lawsuits arguing that the committee’s probe is not legitimate, and it will limit their options for resisting subpoenas going forward. Indeed, the judge in Taylor Budowich’s case ruled against Budowich on Jan. 20, in part on the grounds that the D.C. Circuit and Supreme Court had undercut the spokesman’s claims concerning legislative purpose.

This is the second time that the D.C. Circuit has interpreted Mazars as supporting a congressional request for information. Sitting en banc, the appeals court relied heavily on Mazars when it ruled in August 2020 that the House of Representatives had standing to enforce a subpoena to former Trump White House Counsel Don McGahn in civil court—a major victory for the House after years of litigation over McGahn’s testimony regarding the Mueller report. But the McGahn en banc decision arguably demonstrates how Mazars can be used to the advantage of Congress: The legislature can now point to the Mazars court’s reasoning to support the proposition that it has a justiciable interest in enforcing subpoenas, even where they relate to the president.

So perhaps this is a positive story for the committee and for Congress: The D.C. Circuit has twice used Mazars to bless an investigation, not limit it. The Mazars test—despite the court’s doubts about whether it could be applied in Trump’s litigation against the committee and the National Archives—is not necessarily a death knell to congressional investigations.

That said, Mazars still represents a potential shift in the balance of power between Congress and the courts. In establishing greater judicial scrutiny of legislative purpose when an investigation concerns a sitting president, it also signaled a broader invitation for the judiciary to audit the legislature’s work, even beyond cases that directly concern current or former presidents. Michael Stern, a former senior counsel to the House of Representatives, suggested recently on the Lawfare Podcast that, should the committee subpoena a fellow member of Congress—a step that investigators are reportedly weighing—that member might argue that, under Mazars, courts should also evaluate informational requests to or about legislators with particular stringency given their constitutional role. Even if such an argument is ultimately unsuccessful, it might offer yet another line of potential, time-consuming litigation.

Likewise, in the absence of additional case law about judicial oversight of congressional investigations, Congress may end up hashing out the specifics through future legal battles. For example, must the Jan. 6 committee demonstrate that a particular subpoena or piece of information informs its legislative purpose, or is it enough to show that the investigation as a whole is tied to a legitimate purpose? Cleta Mitchell, a lawyer who backed Trump’s efforts to overturn the election, recently sued the committee attempting to block a subpoena for her phone records, which she argues is illegitimate under Mazars. Mitchell acknowledges the D.C. Circuit’s endorsement of the committee’s legislative purpose, but argues that the particular subpoena for her records lacks a legislative purpose, though the investigation as a whole might not. It wouldn’t be surprising if other witnesses seeking to block the committee’s inquiry took the same approach. Indeed, some have already hinted as much.

Crafting a Legislative Purpose

Our point is less that Mazars has cramped the committee’s investigation and more that the case is shaping how the committee litigates and conducts its investigatory work. For one thing, even if the committee triumphs in each round of litigation, that litigation takes time, and plaintiffs are using Mazars as even more spaghetti to throw at the courtroom wall. For another, the committee seems to have taken the lessons of Mazars to heart when it comes to spelling out, as clearly as possible, its legislative purpose. Again and again, in reports, subpoenas, and comments on the House floor, the Jan. 6 investigators have hammered home the particular legislative purposes guiding their work.

As the D.C. Circuit pointed out, the resolution authorizing the committee’s work declares that one of its functions is to “issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures,” where

corrective measures … may include changes in law, policy, procedures, rules, or regulations that could be taken (1) to prevent future acts of violence, domestic terrorism, and domestic violent extremism, including acts targeted at American democratic institutions; (2) to improve the security posture of the United States Capitol Complex while preserving accessibility of the Capitol Complex for all Americans; and (3) to strengthen the security and resilience of the United States and American democratic institutions against violence, domestic terrorism, and domestic violent extremism.

This kind of authorizing language, specifically charging a special investigative entity with making recommendations for changes in law, isn’t necessarily unusual as far as congressional practice goes—but it isn’t universal, either. In 2015, for example, a Select Investigative Panel of the Committee on Energy and Commerce was charged with, among other tasks, recommending “changes in law or regulation necessary as a result of any findings” of its inquiry into fetal tissue procurement and other abortion practices, principally by Planned Parenthood. But the previous year, the authorizing resolution for the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi had included no such mention of specific changes in law. Neither did the resolution for the 2005 panel charged with investigating the response to Hurricane Katrina. Both of these investigations were similar to the Jan. 6 inquiry in that they focused, at least in part, on failures by the federal government to prepare for and respond to a crisis. So while the House’s decision to include language concerning the Jan. 6 committee’s legislative purpose was not unique, nor was it a given.

The choice to do so seems to have paid off in the D.C. Circuit, which quoted directly from that language in finding that the committee had established a legitimate legislative purpose. But the Jan. 6 committee is also emphasizing the recommendations component of its remit in its communications with individuals from whom it wants information. Many of the committee’s letters requesting testimony, documents, or records describe the panel’s purpose by using language from its authorizing resolution: “The Select Committee to Investigate the January 6th Attack on the United States Capitol is examining the facts, circumstances, and causes of the attack and relating to the peaceful transfer of power, in order to identify and evaluate lessons learned and to recommend corrective laws, policies, procedures, rules, or regulations.” Courts—including the D.C. Circuit—have used this same language when they have sought to describe the committee’s purpose.

When members of the Jan. 6 committee have described how they see their work in business meetings and on the floor, they have stressed the panel’s legislative purpose as well. In the markup of the Bannon contempt citation, for example, Chair Thompson described the work of the committee as “discovering the facts behind the January 6th attack so that Congress can consider legislation with a full understanding of the activities that led to an attack on Congress itself.” When, a few months later, the committee met to consider a contempt citation against Mark Meadows, Rep. Zoe Lofgren went further, specifically describing the connection between Meadows and the committee’s legislative ends, saying that “Mr. Meadows admits he played both an official and unofficial role trying to determine the results of the 2020 election. This committee’s job is to find out about that plot. And to propose legislative changes to prevent something like that from ever happening again.”

Before the House voted to hold Bannon in contempt, Vice Chair Liz Cheney used some of her time on the House floor to spell out, in detail, examples of the committee’s legislative purpose. The committee might recommend reforms to the Electoral Count Act to limit the possibility for future disruptions during the certification of the electoral vote, she suggested, and it is also considering whether to propose additional or enhanced criminal penalties for a future president seeking to overturn an election or failing, as Trump did, to intervene to stop a riot. Notably, Thompson endorsed Cheney’s remarks in the Congressional Record as “underscor[ing] our legislative purpose,” and the committee’s appellate brief in Trump v. Thompson cited that portion of her speech as well.

It’s impossible to know exactly what the committee would be talking about, or what language it would be using to do so, in the absence of Mazars. Discussions of legislative purpose were certainly not unheard of pre-Mazars. The reports accompanying the contempt citations for both Attorney General Eric Holder in 2012 and Attorney General William Barr and Commerce Secretary Wilbur Ross in 2019 contained language justifying congressional actions that resembled the Jan. 6 committee’s rationale in the report accompanying the resolution holding Mark Meadows in contempt for not complying with a related subpoena. There, the committee indicated that it “expects such testimony to be directly relevant to its report and recommendations for legislative and other action.”

But the Jan. 6 committee has been particularly vigorous in its discussion of potential legislative outcomes of its work, suggesting an awareness of the greater judicial scrutiny it might expect in a post-Mazars world. Contrast Cheney’s floor speech, for example, with the remarks from then-House Oversight and Reform Committee Chair Elijah Cummings on the Barr and Ross contempt citations in 2019. Cummings made a relatively passing and general reference to the panel’s legislative purpose in citing the officials: “[W]e need,” he argued, “to understand how and why the Trump administration tried to add a question based on a pretext so that we can consider reforms to ensure that this never happens again.” Cheney, in contrast, walked in detail through four potential legislative outcomes of the probe.

This laser focus on legislative purpose manifests even in how the committee presents itself to the press. In January, for example, Politico reported that “[t]he committee’s aim, according to its members, is ambitious and twofold: Convince Americans how dramatically the country teetered toward an authoritarian takeover by the former president; then propose policies to prevent a future threat.”

As the Jan. 6 committee’s investigation continues, it will be worth watching whether its frequent emphasis on its legislative purpose has broader consequences for actual efforts to enact legislation in response to the insurrection. The committee itself does not have the power to report out legislation. This restriction is standard for House panels convened for special purposes; neither of the select committees stood up to address climate change (in 2007-2011 or 2019-present) has a legislative jurisdiction, nor does the currently operating Select Committee on the Modernization of Congress.

And while many larger issues remain yet unaddressed by legislation, Congress has not sat entirely on its hands. In December 2021, President Biden signed legislation making it easier for the chief of the U.S. Capitol Police to request assistance from the National Guard in the event of an emergency. The House’s proposal for funding the legislative branch for fiscal year 2022 also contains a number of promising provisions designed to improve oversight of the Capitol Police, though, as of this writing, it remains unclear whether the ultimate deal to fund the government for the rest of the fiscal year will include these provisions.

In the near term, perhaps the most likely target for reform is the Electoral Count Act, which governs the process of counting and tabulating the electoral votes in a joint session of Congress. At present, there are at least three separate centers of gravity in the debate over revising the act. In the House, the Democratic staff of the Committee on House Administration—the standing committee with jurisdiction over the issue—has drafted a report containing recommendations for reform. In the Senate, meanwhile, Angus King, Dick Durbin and Senate Rules and Administration Committee Chair Amy Klobuchar have assembled draft legislation. A separate, bipartisan group is also at work on a proposal. Even though the Jan. 6 committee cannot report out its own legislation, depending on how far it wades into the development of specific legislative recommendations on the Electoral Count Act, it could become a fourth pole in this tent. Lofgren, who sits on the Jan. 6 committee, is the chair of the Committee on House Administration; whatever the Jan. 6 committee does on the issue, then, could be influenced by the existing staff effort. But the politics of the issue could shift if the committee gets involved more heavily. The Jan. 6 committee, both because of its focus and because Speaker Pelosi refused to seat Minority Leader Kevin McCarthy’s Republican selections to the panel, is seen by many Republicans as an entirely partisan effort by Democrats. A closer identification of Electoral Count Act reform with the Jan. 6 committee could cast a similar partisan shadow on the issue.

In the end, it is impossible to know whether the Jan. 6 committee would be devoting the same level of rhetorical attention to its legislative purpose absent Mazars, and its rhetorical devotion to articulating these goals is best characterized as a difference in degree from previous investigations. But the committee’s focus on establishing a legislative purpose is still striking.

It’s notable, too, that as the committee trains its focus in that direction, it is leaving aside potential other legal justifications for its work. Beyond investigations in service of a legislative purpose—and investigations related to other constitutional powers of Congress, such as impeachment, the conduct of its own members, and judging the returns of their elections—there has historically been some suggestion that Congress might wield a separate, more general oversight power. In Watkins v. United States, after declaring that “there is no congressional power to expose for the sake of exposure,” the Supreme Court added, “We are not concerned with the power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” During Watergate, the Senate select committee investigating the Nixon campaign argued that it enjoyed a power to, as the D.C. Circuit described it, “oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view”—an argument that the appeals court left unresolved.

Similarly, in his concurring opinion in Mazars, Justice Clarence Thomas suggested a possible congressional “power of self-protection,” pointing to an 1821 Supreme Court ruling affirming the legislature’s ability to hold in contempt someone who had attempted to bribe a member of Congress. That language seems particularly apropos for an investigation into an attack on Congress itself. But the emphasis on legislative purpose in Mazars—and the Jan. 6 committee’s eagerness to show its work on this front—has perhaps drawn attention away from these other avenues.

Whatever the committee’s thinking, the notion that Congress must articulate its legislative purpose in anticipation of significant litigation at best—and of potential micromanagement by the courts at worst—should be troubling for advocates of a vigorous first branch. The D.C. Circuit’s endorsement of the committee’s legitimate legislative purpose may give investigators a legal boost—but why is it that Congress should need the approval of another branch of government to enact its own authority to investigate, especially when the subject under investigation concerns an attack on the seat of the legislature itself?

As committee member Rep. Jamie Raskin put it during the committee’s markup of the Meadows contempt citation, “If we have no legitimate legislative purpose in investigating an insurrection against our own purpose, we have no legitimate legislative purposes at all. If this investigation is not necessary and proper to everything else we are doing, the Constitution has been hollowed out by official lawlessness and a shocking collapse in critical thinking skills.”