Could Deutsche Bank Even Tell Trump?

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This morning we had news that the Mueller probe had subpoenaed the President’s banking records and perhaps those of his family members from Deutsche Bank, the only major back that has been willing to do business with the President since the early 1990s. Then the President’s television lawyer Jay Sekulow released a statement claiming that he had confirmed with Deutsche Bank and other sources that this was not true.

But TPM Reader CL points out that banks can be ordered not to notify a customer and presumably lawyers who represent them when grand jury subpoenas are issued for banking records.

From TPM Reader CL

The President may want to hire lawyers who are familiar with what grand juries actually do.

https://www.justice.gov/usam/criminal-resource-manual-423-grand-jury-subpoena-exception

The broad wording of the grand jury exception is significant:

Nothing in this title (except §§ 3415 and 3420 of the Act) shall apply to any subpoena or court order issued in connection with proceedings before a grand jury except that a court shall have authority to order a financial institution on which a grand jury subpoena for customer records has been served not to notify the customer of the existence of the subpoena or information that has been furnished to the grand jury, under the circumstances and for the periods specified and pursuant to the procedures established at § 3409. 12 U.S.C. § 3413(i). [Emphasis added].

I’m no expert in this area. But I must admit this basic issue occurred to me as soon as I saw Sekulow’s statement. Are things really set up so that the target of an investigation can simply call up the bank to see what a grand jury has asked to see? This suggests the answer can in many cases be no.

Remember, Sekulow is mainly an activist and a TV lawyer. I don’t remember now whether he practiced criminal law in the distant past. But at least over the last two decades he’s represented clients in cases seeking to expand ‘religious liberty’ law. Is he even that familiar with how these things work?

I should note there’s other potential wiggle room in Sekulow’s statement. Perhaps records tied to the Trump Organization or members of the President’s family were subpoenaed rather than specifically “financial records relating to the president,” as the statement puts it. But again, it seems that the bank may be under no obligation and may in fact be barred from telling Sekulow even if it had happened.

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Josh Marshall is editor and publisher of TalkingPointsMemo.com.
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