President Trump has no legal basis whatsoever for opposing the enforcement of subpoenas by congressional committees seeking information from his accountants and two of his banks about his business dealings. That much is clear from the two rulings issued this week [May 20, May 22] by federal judges flatly rejecting the arguments from Trump's lawyers alleging a congressional overreach into the personal affairs of private citizen Donald J. Trump.
Despite an untenable legal position, Trump is using his accustomed tactics of delay, evasion, and obfuscation to try to confuse the public about the stakes in the dispute. More tellingly, he also is clearly trying to run out the clock on the congressional efforts to learn more from his business records about possible wrongdoing before his presidential campaign and potential conflicts of interest with his presidential duties.
Trump's strategy may succeed, thanks in part to the time required for the promised appeals in the two cases. In addition, Trump surely believes that the Republican-majority Supreme Court will rescue him with temporary stays even if, as widely expected, he loses the two appeals. Court watchers are already speculating that the five Republican-appointed justices, all of them schooled in executive branch positions and invested more in presidential than in congressional power, are quite likely to side with Trump in any showdown with Congress.
In the first of the two rulings, Judge Amit Mehta, a federal district court judge for the District of Columbia, issued a 41-page opinion rejecting Trump's request to block the accounting firm Mazars USA from complying with the House Oversight Committee's subpoena for Trump's business records. With a Democratic majority for the first time in Trump's presidency, the committee issued the subpoena after hearing testimony from Trump's former lawyer-fixer Michael Cohen that Trump "routinely" altered the valuation of his assets to better suit his financial purposes: inflating the supposed value in loan applications and deflating the stated value in tax filings.
Two days later, U.S. District Court Judge Edgardo Ramos in Manhattan similarly upheld the enforcement of subpoenas issued by two House committees, Financial Services and Intelligence, for financial records from two of Trump's banks, Deutsche Bank and Capital One. The committee's stated purposes were to investigate "possible foreign influence" in the U.S. political process and possible money laundering abroad.
Ramos and Mehta, appointed by President Obama respectively in 2011 and 2014 and both Senate-confirmed by voice vote, made mincemeat of the arguments from Trump's lawyers that Congress was out of bounds in demanding Trump's business records. In his written opinion, Mehta acknowledged the Supreme Court's 19th century decision in Kilbourn v. Thompson (1880) that found a congressional investigation had ventured into judicial territory by examining the operations of a real estate partnership in the District of Columbia.
Mehta stressed, however, that the subsequent Supreme Court decision stemming from a congressional investigation into the Teapot Dome scandal in the 1920s took a broader view of congressional power. The Court in that case, McGrain v. Daugherty (1927), reversed a lower court decision that questioned the investigation by holding, instead, that an investigation is legitimate if "the subject . . . was one on which legislation could be had."
The Supreme Court and lower federal courts have taken that approach ever since, Mehta noted. "[N]ot once has a court found a congressional investigation unconstitutional because directed at the personal affairs of a private citizen," he wrote. He dismissed the pleas from Trump's lawyers that the Oversight Committee's investigation was politically motivated and not plainly directed at some legislative purpose.
The court's role, Mehta explained, was not to question political motives or possible legislation. He noted, as a telling example, that the congressional investigations into the Watergate scandals yielded a laundry list of major enactments: the Ethics in Government Act, the Congressional Budget and Impoundment Control Act of 1974, the War Powers Resolution, and the Independent Counsel Statute. He also specifically found that two of the issues listed by the Oversight Committee — Trump's possible violation of the Emoluments Clause and possibly false disclosures to the Office of Government Ethics —were indeed "subjects on which legislation could be had."
Ramos, delivering his ruling from the bench, also made short shrift of Trump's arguments by declaring the two committees' subpoenas "likely lawful" because of "a legitimate legislative purpose." He added: "Put simply, the power of Congress to conduct investigations is inherent in the legislative process."
By week's end, supposed constitutional experts from the political and legal right were delivering talking points that insisted Congress had no general powers of investigation. On that score, they disagreed with the Framers themselves, who referred to Congress as "the grand inquest of the nation." The Framers borrowed that phrasing from William Pitt the Elder, who coined it in the English House of Commons as he launched an investigation into Robert Walpole's ministry.
Anthony Lewis, the New York Times's celebrated legal affairs columnist, recalled that history in a column written in 1974 as President Richard Nixon was invoking executive privilege to resist congressional investigations. Nixon's stonewalling ended badly for him. As a legal matter, Trump's arguments fare no better even as he — of the hush-money payments to his former paramours — declares, "I don't do cover-ups." This cover-up may hold long enough to spare him political damage, but one way or another Trump appears likely to have to answer to Congress and to the courts.
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