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Why Trump’s Stonewalling Legal Strategy Will Keep Failing.


In the space of three days this week, two federal judges ruled decisively in favor of Congress’ right to subpoena President Trump’s personal financial and business records. The speed of the decisions—unusual in complex federal litigation—demonstrates a significant flaw in the administration’s “fight all the subpoenas” strategy. More importantly, it suggests that Trump’s strategy of categorically fighting all Congressional subpoenas will undermine his ability to stonewall Congress in subsequent cases.

Already, one of the rulings has been appealed by the Trump administration and the three-judge panel is scheduled to hear the case in July. In the meantime, however, we are witnessing profound legal decisions in defense of Congressional power. If Trump’s stonewalling strategy was intended to run out the clock by forcing Democrats into interminable court fights, it appears so far to be having the exact opposite effect—almost like a little league game that gets called early because one team is scoring too many unanswered runs.

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On Monday, federal judge Amit Mehta issued a sweeping decision rejecting Trump’s personal challenge to a House Oversight Committee subpoena of his financial records from an accounting firm he used. The main argument Trump advanced was that there was no legislative purpose for the subpoena.

Judge Mehta made quick work of that argument, noting that courts have long held that they must presume Congress is acting to legislate. But Trump’s argument went further, claiming that Congress is engaging in “law enforcement” and that corrupt behavior by the president is not a “proper subject of investigation.” Mehta cited Watergate as an obvious rebuttal.

Trump’s argument is doomed to fail in the courts because the constitution gives the House the “full Power of Impeachment” and it could not exercise that authority without investigating presidential wrongdoing. Judge Mehta found 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.”

Wednesday’s ruling by Judge Edgardo Ramos made equally quick work of Trump’s argument that subpoenas to Deutsche Bank and Capitol One for his records lacked a “legitimate legislative purpose.” He found that argument “unpersuasive,” finding that it was “not the role of the judicial branch to question [Congress’s] motives.” He denied every one of Trump’s requests.

What is remarkable about these sweeping rulings is not the results, which were expected, but the speed with which they were issued. Judge Mehta issued his 41-page ruling just seven days after hearing arguments.

If Trump’s team is not alarmed by the speed and sweeping nature (not to mention the almost dismissive tone) of the two judgments against the president, it should be. Trump’s strategy on a variety of fronts has been to take extreme positions denying Congressional authority to investigate the presidency. On Monday, for example, the Office of Legal Counsel concluded that the President’s senior advisors are absolutely immune from subpoena to testify about their official duties. Buried on page nine of the memo was an admission that the only court to consider this issue had ruled to the contrary. Hiding an unfavorable precedent in this manner might work on a first-year law student, but it won’t fool a federal judge.

Last week, White House Counsel Pat Cipollone, arguing against having to produce the full Mueller Report and underlying materials, said the House Judiciary Committee lacked any “legislative purpose” for investigating Trump’s conduct as detailed in the Mueller report. He accused the House Judiciary of conducting a “pseudo law enforcement investigation.” Sound familiar?

The Achilles heel of Trump’s strategy is that his extreme positions are not fact-specific or nuanced and are easily disposed of as legally groundless. Judge Mehta specifically noted that the “legal issues presented do not require the court to resolve any fact contests because the material facts are not in dispute.” Because Trump challenged the very right of Congress to investigate these matters, the only facts the court needed to consider were basic facts that no one could possibly dispute.

That stands in stark contrast to prior disputes between the executive branch and Congress. For example, the dispute over certain materials subpoenaed by Congress in its investigation of Operation Fast and Furious resulted in litigation that took eight years to resolve. But the Obama administration did not take the categorical, aggressive approach that Trump has. Obama’s Justice Department produced some witnesses and documents and fought over other documents over which it claimed privilege.

If Trump continues down this path—over former White House counsel Don McGahn’s refusal to appear before the House Judiciary, for example—expect to see more swift rulings swatting down his legal arguments in the coming weeks and months. No court is going to rule that the Executive Branch can categorically refuse to produce evidence and witnesses from a criminal investigation of the president of the United States from the House of Representatives.

Trump’s team no doubt believes that once their initial arguments fail, they will advance more nuanced arguments that seek to protect only a limited subset of material from disclosure. But as any experienced litigator knows, a judge’s impression of a party’s position is influenced by the history of the litigation. Because Trump’s lawyers have not even paid lip service to our constitutional system at the outset, judges will be less inclined to take seriously their arguments later on. In addition, the decisions issued by judges denying Trump’s challenges will influence other judges who consider similar challenges brought by Trump to other Congressional subpoenas.

Trump has appointed hundreds of federal judges, many of whom undoubtedly share his expansive view of executive power. (One of his appointees, Neomi Rao, sits on the D.C. Circuit Court of Appeals that will hear the Mehta ruling.) But Trump has made it difficult for judges to show him the deference that courts might otherwise show the president.

For that reason, a savvy litigator would not roll the dice with the risky legal strategy Trump has advanced. A more sophisticated approach would be to make limited accommodations to Congress and advance very fact-specific objections to Congressional subpoenas that would require a court to engage in a time-consuming inquiry to parse through. Trump’s current strategy lacks that sophistication.

As a result, his strategy is not only generating adverse results quickly, but it could very well convince a court that he is acting in bad faith. If that happens, the House could get the courts to do what it is ill-equipped to do itself—enforce compliance with Congressional subpoenas. That could get Congressional investigations, or even an impeachment inquiry, off the ground.

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