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Trump's Lawyers Argue Congress Has Little Power To Investigate A Sitting President's Personal Affairs

Trump's strategy to keep Democrats from digging into his finances: Buy time, go big, and prepare to lose.

Posted on May 14, 2019, at 2:56 p.m. ET

Saul Loeb / AFP / Getty Images

WASHINGTON — As President Donald Trump fights investigations by the Democrat-controlled House on multiple fronts, a court hearing Tuesday highlighted his strategy to fend off inquiries into his personal business affairs.

Trump so far is challenging congressional subpoenas for financial records — both personal and from the Trump Organization — in federal courts in Washington, DC, and Manhattan. On Tuesday, a judge in the DC case heard arguments on Trump's effort to block a House Oversight Committee subpoena to accounting firm Mazars, which has long worked with Trump and his companies.

Trump's strategy has three parts: First, resist efforts to speed up the litigation. Second, raise sweeping arguments about the limits of Congress's ability to investigate him that test the bounds of previous US Supreme Court and appeals court decisions. Finally, be prepared to lose and appeal.

Tuesday's hearing was the first of what will likely be numerous court proceedings over Democrats's subpoenas probing not only Trump's business affairs but also the goings on of his administration. The federal judge in New York handling Trump's lawsuit challenging a subpoena to Deutsche Bank and Capital One is scheduled to hear arguments May 22.

Buy time

US District Judge Amit Mehta has pushed to quickly move the Mazars subpoena case along. Trump asked for a preliminary injunction temporarily stopping the House from enforcing the subpoena while the litigation went forward, but Mehta issued an order last week saying he believed the case was ready for a final decision now — the question of Congress's authority to issue the subpoena was purely a legal one, he said, and he didn't believe there was other evidence Trump needed time to gather and present to the court to resolve it.

In court on Tuesday, Trump's attorney William Consovoy pushed back on the judge's plan. He said they needed time to gather evidence that would go to Democrats' intent in issuing the subpoena — Trump's core argument is that this is all a politically motivated effort to harass him, and that the subpoenas aren't tied to any "legitimate legislative purpose."

Consovoy initially balked when Mehta asked him to specify what evidence they wanted and how much they would need. Consovoy said they were seeking a copy of a memorandum of understanding between several House committees that he believed would show the Mazars subpoena was part of a coordinated effort to look for evidence of wrongdoing by the president, which he argued was a law enforcement function Congress lacked authority to carry out. But when pressed by Mehta, Consovoy said there were some Republicans who had access to the memo, and he'd work with the committee's top Republican, Rep. Jim Jordan, to get it and any other information Jordan was able to give him on the issue.

Douglas Letter, the House's general counsel, said they would show the judge under seal the memorandum. Letter said it involved an information-sharing arrangement among several committees related to a subpoena for records from another financial institution, which he didn't identify. Mehta said he'd review the document and decide if it should be turned over to Trump's lawyers.

Consovoy also argued that he wanted another opportunity to expand their legal arguments — they didn't have to put all of their cards on the table at a preliminary injunction stage.

Mehta made a small concession to Consovoy, giving him until May 18 to add any evidence to the record that he wanted. But he was unmoved by Consovoy's request for more time to brief and argue the issue, saying he thought both sides already cited all the relevant cases, and had the opportunity Tuesday to make any other arguments they wanted.

"We're not going to drag this out," the judge said.

Letter supported Mehta's plan to speed up the proceedings. He said they were "so cognizant" of previous cases that had taken a long time to resolve.

"This Congress is limited in time," he said, in a nod to the 2020 election. "Any delay here undermines the House's ability to do what the Constitution allows it to do."

Mehta did not say when he would rule, but he isn't expected to issue a decision until after the May 18 deadline. He said the case presented "serious" issues that required time to consider, but he'd abide by guidance from the Supreme Court to move "expeditiously" in cases that affect the function of government.

Go big

Consovoy argued that Congress had little, if any, power to investigate a president, to the point of avoiding a direct answer on the lawfulness of two of Congress's most famous investigations — former president Richard Nixon's role in the Watergate scandal and former president Bill Clinton's role in the Whitewater scandal.

Any effort to investigate Trump's compliance with the law was the type of law enforcement function that Congress lacked authority to carry out, Consovoy argued. He said that logic applied to many of the reasons Democrats gave for wanting Trump's financial records, such as whether he was accurately reporting his finances under government ethics rules, whether he had any undisclosed conflicts of interest, or whether he was abiding by the Constitution's prohibition on accepting "emoluments," or things of value, from foreign governments.

Mehta asked Consovoy if, by his logic, the congressional investigations into Nixon and Clinton went beyond the scope of Congress's constitutional authority. Consovoy said he would need to look more closely at those cases, and Mehta responded that they were "straightforward" — that Congress was investigating whether there were violations of law. Consovoy pivoted, saying the court had to look at contradictions between what committee chair Elijah Cummings cited as the foundation for the subpoena — information from Trump's former lawyer Michael Cohen about Trump's finances — and the reasons Democrats were giving now, such as citing the emoluments clause.

Mehta asked how Consovoy's argument squared with Supreme Court precedent that said Congress didn't have to point to specific legislation to justify its investigative demands. Consovoy said Democrats had repeatedly made clear that subpoenaing Trump wasn't about adopting legislation, and that Congress's oversight power was more about the actions of federal agencies, not the president himself.

Mehta expressed skepticism at Consovoy's argument that the judge had to weigh the constitutionality of the potential legislative reasons that Congress gave for issuing the subpoenas — that is, deciding the constitutionality of legislation that hadn't even been drafted yet.

When Letter got up to argue, Mehta said one big difference between this case and other congressional subpoena fights in the past was that Cummings and the committee hadn't issued a formal statement outlining the scope of the investigation. That opened the door to accusations that this was an effort to harass Trump, the judge said.

Letter replied that a unanimous Supreme Court decision from 1927 made clear that Congress did not have to specify what sort of legislation it was looking to adopt in launching an investigation — only that the subject was one that could lead to legislation. Congress had power to regulate the president, and his financial records could show areas that lawmakers needed to improve on, such as financial reporting rules.

Mehta asked Letter where the limits were on Congress's power to investigate a president's private affairs, and Letter struggled to answer the question. He said Congress was already limited from subpoenaing "things," so, for instance, they probably couldn't subpoena a blood sample from the president. A demand for a president's childhood diaries would probably stretch his argument, he said, but the current case was nowhere near those hypothetical limits.

Letter also rejected Trump's arguments that Congress was trying to take over the job of law enforcement — "Congress is not trying to send President Trump to jail," he said. Mehta asked why lawmakers needed to see records that predated Trump's time in office. Letter said that if Trump had violated the law before becoming president and a foreign government knew about it — for instance, if Trump did illegal things in pushing his ultimately unsuccessful plan for a Trump Tower in Moscow, he said — Congress would want to know.

Prepare to lose

Consovoy told Mehta that if they lose, they will appeal. Trump could take the case to the US Court of Appeals for the DC Circuit, and then up to the Supreme Court. If Mehta does rule against Trump, Consovoy asked the judge to give Trump's legal team enough time to file the appeal before allowing the committee to enforce the subpoena.

Letter said they opposed any delay, but asked that if the judge did agree to stay his order, he put in a condition that Trump must file an appeal soon and ask the DC Circuit to put the case on an expedited track.

Judges are usually hesitant to disturb the status quo while a case is being litigated, and are more likely to grant stays in cases where the outcome is all-or-nothing: In this instance, either the committee gets the documents, or it doesn't. Mehta didn't say what he would do, but said his order would make clear whether there's a stay, and for how long, whichever way he rules.

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