Trump Loses Opening Round in His Efforts to Defy Congressional Oversight

AP Photo/Evan Vucci

President Donald Trump gestures to the crowd as he finishes speaking at a campaign rally in Montoursville, Pennsylvania. 

The battle between President Trump and Congress reached the third branch of government Monday as a federal judge rejected all of Trump’s legal arguments in his intensified attack on congressional oversight. U.S. District Judge Amit Mehta for the District of Columbia issued a 41-page decision in the historically named case Trump v. Committee on Oversight and Reform, rejecting Trump’s attempt to quash a subpoena seeking his financial records. It was the first legal test in the battle between Trump and Congress, and Trump lost. Badly.

Trump immediately denounced the ruling as “totally the wrong decision by obviously an Obama-appointed judge.” Trump falsely claimed the decision was “crazy because if you look at it, this has never happened to any other president.” In fact, Judge Mehta gave numerous examples, including the congressional investigations into Watergate involving President Richard Nixon and Whitewater involving President Bill Clinton.

The case arose on April 15, when the House Committee on Oversight and Reform issued a subpoena for records to Mazars USA LLP, a firm that has provided accounting services to Trump, calling for Mazars to produce financial records and other documents relating to Trump personally as well as various associated businesses and entities dating back to 2011. The decision to issue the subpoena came after the president’s former lawyer and confidant, Michael Cohen, testified before the committee that the president routinely would alter the estimated value of his assets and liabilities on financial statements, depending on the purpose for which a statement was needed.

Judge Mehta found that having “grappled for more than a century with the question of the scope of Congress’s investigative power,” the Supreme Court had established the binding principle “that courts must presume Congress is acting in furtherance of its constitutional responsibility to legislate and must defer to congressional judgments about what Congress needs to carry out that purpose.” While there are limits on Congress’s investigative authority, those limits do not substantially constrain Congress, so long as it investigates on a subject matter on which “legislation could be had.”

Article I of the Constitution grants Congress all “legislative Powers,” and Judge Mehta noted that the Supreme Court held almost 100 years ago in 1927 that the power to secure “needed information … has long been treated as an attribute of the power to legislate.” It was so regarded in the British Parliament and in the colonial legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures. “There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation,” the Supreme Court held in 1955.

In addition to its legislative function, Congress also has a “informing function” which permits “Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” The informing function finds its roots in the scholarship of President Woodrow Wilson, who wrote that it is “the proper duty of a representative body to look diligently into every affair of government” because “unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and … must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.”

According to Judge Mehta, applying those settled principles compels the conclusion that President Trump cannot block the subpoena to Mazars. To evaluate the legislative purposes of the Mazars subpoena, Judge Mehta analyzed an April 12 memorandum Chairman Elijah Cummings submitted to members of the Oversight Committee, which listed four areas of potential investigation: (1) “whether the President may have engaged in illegal conduct before and during his tenure in office”; (2) “whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions”; (3) “whether he is complying with the Emoluments Clauses of the Constitution”; and (4) “whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.” Reviewing these justifications in detail, Judge Mehta found that each was a subject “on which legislation could be had” according to the standards established by the Supreme Court, and therefore amply supported the validity of the subpoena.

Ironically, the sweeping breadth of Trump’s defiant challenge to Congress’s investigative authority opened the door for Judge Mehta to venture into the question of impeachment. He stated that it is “simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.” The judge found that history provided a useful guide. “Twice in the last 50 years Congress has investigated a sitting President for alleged law violations, before initiating impeachment proceedings. It did so in 1973 by establishing the Senate Select Committee on Presidential Campaign Activities, better known as the Watergate Committee, and then did so again in 1995 by establishing the Special Committee to Investigate Whitewater Development Corporation and Related Matters.” The former investigation included within its scope potential corruption by President Nixon while in office, while the latter concerned alleged illegal misconduct by President Clinton before his time in office. “Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office,” Judge Mehta declared. “This court is not prepared to roll back the tide of history.”

Judge Mehta emphasized his confidence in his ruling by taking the rare step of denying Trump’s request to stay the return date of the subpoena beyond the seven days already agreed upon by the parties, pending final appellate review. Judge Mehta bluntly ruled that Trump had not shown that his challenge to the Mazars subpoena presents “serious legal questions going to the merits, so serious, substantial, difficult as to make them a fair ground of litigation and thus for more deliberative investigation.” He found that “none” of the grounds upon which Trump challenged the subpoena rests on “potentially persuasive authority” and chided Trump’s lawyers for citing no case since 1880 in which the Supreme Court or the D.C. Circuit had interfered with a congressional subpoena. “This case does not merit becoming the first in nearly 140 years.”

Judge Mehta recognized that “the disclosure of confidential information is, by its very nature, irreparable ‘because such information, once disclosed, loses its confidential nature.’” The court also acknowledged “that this case involves records concerning the private and business affairs of the President of the United States. But on the question of whether to grant a stay pending appeal, the President is subject to the same legal standard as any other litigant that does not prevail.” Since Trump had failed to raise a “serious legal question going to the merits” or “serious constitutional questions” and “the balance of equities and the public interest” weigh heavily in favor of denying a stay, the risk of irreparable harm does not outweigh these other factors.

As Trump v. Committee on Oversight and Reform enters the appellate process, we’re going to hear a lot more from the competing lawyers. Trump is represented by William Consovoy, a prominent private appellate lawyer and former clerk to Supreme Court Justice Clarence Thomas. Defending Congress is Doug Letter, general counsel for the House of Representatives. A 40-year veteran of the Department of Justice, where he become well known for representing the executive branch against Congress, he was hand-picked by House Speaker Nancy Pelosi in January to advocate in favor of Congress. Stay tuned as the historic case of first impression heads to the Supreme Court—where the survival of separation of powers and an accountable presidency could turn on the views of a single man, Chief Justice John Roberts.

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