Trump Digs In for Battle Over Congress's Power to Investigate
(Bloomberg) -- President Donald Trump is digging in for a protracted legal fight with congressional Democrats using a strategy that could tie up their investigations in court as he turns toward his 2020 re-election bid.
The battle took clear shape this week as a Justice Department official and a former White House official rebuffed subpoenas tied to the census and security clearances. Addressing a separate Democratic request for Trump’s tax returns, Treasury Secretary Steven Mnuchin told Congress in a letter Tuesday that its “investigatory power is not unlimited.”
“I say it’s enough,” Trump told reporters Wednesday as he departed the White House for an event in Atlanta. “We’re fighting all the subpoenas.”
To wage that fight, the White House is taking a position that challenges almost a century of legal precedent protecting Congress’s broad authority to investigate. The crux of the argument surfaced in identical language at least twice this week -- in Mnuchin’s letter and in a lawsuit by Trump’s personal lawyers challenging House Oversight Chairman Elijah Cummings’s subpoena seeking eight years of Trump’s financial information from his accounting firm.
According to the administration, it needn’t comply because there’s no “legitimate legislative purpose” to the inquiries.
Lawyers say the argument -- with its assumption that a president can decide what’s legitimate for Congress to investigate -- is unlikely to win in court. But it’s still likely to keep Democrats’ myriad inquiries tied up for months, if not longer.
The delay alone could be key for Trump to avoid a steady flow of damaging news as he turns to his re-election campaign. Speaking Wednesday, Trump said spurious investigations were Democrats’ sole hope to defeat him.
“The only way they can luck out is by constantly going after me on nonsense,” Trump said.
Democrats are making good on their vow to bombard the Trump administration with inquiries after winning a majority in the House in the 2018 midterm elections. House Democrats say the Trump administration has either refused to respond or slow-walked document requests at least 35 times since January. Administration officials have also refused to appear before House committees at least nine times this year, they added.
Mnuchin’s letter was a clear signal he doesn’t intend to comply with Democrats’ demand for Trump’s tax returns. The same day he sent it, the Trump administration said Carl Kline, the former director of White House personnel security, wouldn’t testify about granting security clearances. Kline had received a subpoena after a longtime employee in the security clearance office told lawmakers that supervisors overturned 25 applications for clearances that had been denied.
A day later, the Justice Department said John Gore, the principal deputy assistant attorney general for the Civil Rights Division, wouldn’t testify before Cummings’s committee unless he’s accompanied by another DOJ lawyer. Cummings had sent a subpoena to Gore as part of an inquiry into the inclusion of a citizenship question in the U.S. census.
And yet the biggest fight will be over findings from Special Counsel Robert Mueller’s Russia investigation. House Judiciary Chairman Jerrold Nadler has sent subpoenas to some of Mueller’s key witnesses -- including former White House Counsel Don McGahn -- in his own inquiry into whether Trump obstructed the investigation.
In the case of Cummings’s subpoena for records from Trump’s long-time accounting firm, Mazars LLP, Trump’s lawyers argue that Congress doesn’t have a general right to use its investigative powers to fish for information without an articulated legislative purpose, such as updating laws or writing new ones. House and Senate panels can’t act like the Justice Department or a grand jury, they argue.
"There is no possible legislation at the end of this tunnel," Trump’s attorneys said in the lawsuit filed Monday to challenge Cummings’s subpoena.
Cummings said he is seeking the material to help determine "the accuracy" of Trump financial filings prepared by the accounting firm. That includes whether Trump manipulated the value of his assets and liabilities on statements, he said.
In this instance, Trump’s lawyers assert, the Oversight Committee’s real goal is to expose Trump’s private financial information “for the sake of exposure, with the hope that it will turn up something that Democrats can use as a political tool against the president now and in the 2020 election.”
Republicans on the committee, in their own legal memo, similarly said: “Chairman Cummings has cited no specific law or legislative proposal for which he requires eight years of sensitive, personal financial information about President Trump.”
Political and legal scholars and historians say the White House position stands little chance of success. But that doesn’t preclude a lengthy legal battle.
“It’s a long dance, and it’s all in the executive’s favor because they have the information," said University of Virginia law professor Saikrishna Prakash. "The standard practice is to delay and stall."
Supreme Court decisions giving Congress a broad scope of inquiry can be traced back to the 1929, when the court ruled that the Senate had the authority to investigate possible violations of law -- in that case, a no-bid contract to lease federal oil fields in Teapot Dome, Wyoming.
Yet, the court has also said that the subjects of any inquiry must be one “on which legislation could be had.”
The White House, though, would need to establish that Congress doesn’t have a legitimate legislative purpose, which would require courts to delve into lawmakers’ motives. According to Irv Nathan, a former general counsel for the House, that’s an area protected by the Constitution’s Speech and Debate clause, which says lawmakers “shall not be questioned in any other place” than the legislature to prevent interference by the executive and judicial branches.
“The courts don’t examine the motives for legislative actions,” said Nathan, who worked in the House from 2007 to 2010 when it was controlled by Democrats. “I don’t see any court giving any credence to it.”
Cummings argues that his committee has full constitutional oversight authority to investigate Trump’s legal conduct before and during his tenure in office. In an April 12 memo on its quest for Trump’s financial records from before he was president, Cummings said he wants to determine whether Trump has undisclosed conflicts of interest, and if his federal disclosures are accurate.
"The Committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction, and to suggest otherwise is both inaccurate and contrary to the core mission of the Committee to serve as an independent check on the Executive Branch," Cummings wrote.
In a March 4 letter, White House Counsel Pat Cipollone -- citing Supreme Court cases Watkins v. United States and McGrain v. Daugherty -- said the committee in its pursuit of documents on security clearances had failed to justify “how your regulatory needs depend on the particular information you seek.”
The committee “has failed to point to any authority establishing a legitimate legislative purpose for the Committee’s unprecedented and extraordinarily intrusive demands -- including the demand to examine the entire investigative files of numerous individuals whom the President has chosen as his senior advisors,” Cipollone wrote.
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