WASHINGTON – On Friday, personal attorneys for President Trump and his family argued in front of a federal appeals court that it should block a congressional subpoena into the Trumps’ personal and business finances.
The oral argument, scheduled for an hour but lasting well over two hours, was the most high-stakes court hearing yet in the ongoing legal war between Trump and the Democratic House over Congress’ ability to conduct oversight of him.
A district court has already upheld the subpoena of Mazars, Trump’s accounting firm. But Trump appears ready to fight the case to the bitter end. While the appeals court appeared extremely skeptical of Trump’s arguments, they also had tough questions for the House Oversight Committee, which issued the subpoena. The case will likely be appealed to the Supreme Court.
Here are some key takeaways.
1. Trump is still making the incredible claim that, as President, he is almost entirely immune from any congressional oversight or regulation.
William Consovoy, the lawyer who is representing Trump and his family, doubled down on arguments made at the lower court that Congress has essentially no oversight authority over the President. He also suggested that almost any law that seeks to address ethical issues with the presidency would be considered unconstitutional.
The breadth of Consovoy’s arguments at times took the judges aback.
“Imagine, in the future, you have the most corrupt president in humankind, openly flaunting it, what law could Congress pass?” Judge Patricia Millett, an Obama appointee asked.
“I think it’s very hard to think of one,” Consovoy responded.
2. The two Democratic-appointed judges were the most skeptical of Trump’s arguments.
Millett and Judge David Tatel, a Clinton-appointee, didn’t seem to be buying many of Consovoy’s arguments. Right off the bat, Tatel said the case law Consovoy was citing seemed “very different” than the case that was in front of them. Tatel and Millett also zeroed in on the fact that, because the subpoena was of a third party, it wasn’t imposing a significant burden on Trump’s constitutional obligations as President. They were perhaps most aghast at Consovoy’s arguments that Congress could almost never seek to regulate the ethical behavior of the President.
Millet’s voice raised when Consovoy couldn’t provide examples of types of laws Congress constitutionally could pass as part of its oversight authority over the President.
“I don’t want a litany, I want an example!’ she said, shocked he couldn’t provide one.
3. The Trump-appointed judge on the court was more hostile towards the House.
Judge Neomi Rao, a Trump-appointee who replaced Brett Kavanaugh on the appeals court, was relatively quiet when it was Consovoy’s turn in front of the judges. Many of the questions Rao asked Consovoy were softballs, though occasionally she sounded troubled by how extreme Consovoy’s arguments were. Rao grilled Consovoy on the lack of Justice Department’s attorneys representing Trump in the case, given that Consovoy was making arguments specific to the office of the presidency.
Rao had many more questions for Doug Letter, the lawyer representing the House. Rao was particularly fixated on the absence of a House floor vote to explicitly approve the Oversight Committee’s subpoena. Rao said it was “unprecedented” that the committee would go forward with the subpoena without getting explicit approval of the full House to target the President.
4. Consovoy suggested the House was lying when it said there was potential legislation related to its probe into Trump.
Trump’s lawyer insisted that the court should not take the House at its word when it explained that the subpoenas would assist lawmakers in legislating. The argument didn’t get very far with Tatel and Millett, who pointed out that there were several pieces of legislation — some already passed in the House, some still pending — that appeared related to ethical issues around Trump.
Consovoy insisted that the “primary” purpose of the subpoena was a law enforcement one — i.e. to uncover criminal conduct — and for that and other reasons it was illegal.
5. After some hassling from the court, the House put some limits on what would be an appropriate subpoena.
Millett seemed to struggle with the time period the subpoena covers, as it extends well before Trump was running for president and even before he entered into a lease with the federal government to turn the old U.S. Postal Building in Washington, D.C., into a hotel.
Letter at first was reluctant to say that there were any limits on what Congress could find to be an appropriate time period for a subpoena of a president’s records. Letter even tried to think of a hypothetical for when it would be appropriate for the House to subpoena from a third party the diary a 70-year-old president wrote when he was 7 years old. But, after more prodding from the judge, Letter promised the House would not subpoena such a diary.
I think I’ll await the 2-1 vote before saying anything else!
A GOP House response
Every-time someone says “I am voting green, voting for who you really want is the most important thing” remember that the “democrats are as bad as republican” meme was pushed by the Russians in 2016, and it has now elected both Trump in 2016 and Bush in 2010. What the far left in the US has done is give us judges like Rao.
This is weak–but it does put me in mind of a potentially very important power that the House has, what with it being a co-equal branch of government and all, which for some reason Pelosi has not not used. House floor votes can be used to state, by resolution, the official position of the House on factual-political matters. For example, the House could resolve that we have a climate emergency. Or it could resolve that we have a constitutional crisis. Or it could resolve that we have a national security emergency in terms of the vulnerability of the USA to foreign attacks related to the 2020 election. These resolutions would be founded on actual facts, would have to be accepted by the courts in the same way that the courts are basically bound to facially accept the executive’s findings, and could form the basis for all kinds action. At the very least, they could form the basis for legitimately launching forceful measures of various kinds and insisting on full compliance with subpoenas, requests for documents, etc. It’s, shall we say, curious that this kind of aggressive, creative approach has not been attempted.
For shame, @tierney . No less an authority than Chief Justice Roberts has assured us “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”