Within three days of this week, two federal judges have decided to endorse the right of Congress to summon President Trump's personal financial and business records. The speed of decisions – unusual in complex federal disputes – shows a significant flaw in the government's strategy to combat all subpoenas. More importantly, Trump's strategy of categorically combating all congressional summons will undermine his ability to block Congress in later cases.
Already one of the decisions was challenged by the Trump administration, and the three-judge jury should do so Listen to the case in July. In the meantime, however, we are experiencing profound legal decisions defending the power of Congress. If Trump's stonewalling strategy was to force the Democrats into endless litigation, it seems to do the opposite ̵
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On Monday, federal judge Amit Mehta issued a sweeping decision rejecting Trump's personal challenge to the subpoena of his financial records to an accountancy firm he was using to the House Oversight Committee. The main argument that Trump put forward was that there was no legislative purpose for the summons.
Judge Mehta quickly dealt with this argument, stating that the courts have long been assuming that Congress will legislate. However, Trump's argument went further, claiming that Congress was "prosecuting" and that the President's corrupt behavior was not a "reasonable subject of investigation". Mehta cited Watergate as an obvious refutation.
Trump's argument is doomed to failure in the courts because the constitution gives the House the "full power of impeachment" and could not exercise that authority without investigating the President's wrongdoing. Judge Mehta found it "unbelievable" that "a constitution granting Congress the power to remove a president for reasons involving criminal behavior would deny Congress the right to unlawful conduct in the past or present to investigate, even without a formal opening of a constitution impeachment investigation.
Judge Edgardo Ramos's ruling on Wednesday has worked equally swiftly on Trump's argument that subpoenaing Deutsche Bank and Capitol One for his records did not have a "legitimate legislative purpose". He found this argument "unconvincing." "It was not the role of the judiciary to question motives." He denied any claim from Trump.
What is remarkable about these comprehensive choices are not the expected results, but the speed at which they were achieved were exhibited. Judge Mehta issued his 41-page decision only seven days after the hearing of arguments.
Unless Trump's team is disturbed by the speed and agility of the two judgments against the President (not to mention the almost dismissive tone), so it should be. Trump's strategy on several fronts was to take extreme positions that prevented Congress from investigating the presidency. For example, on Monday, the law firm concluded that the presidential chief advisors are completely immune to subpoenas to testify about their official duties. On page nine of the note, the admission was buried that the only court dealing with this matter had decided otherwise. To hide an unfavorable precedent in this way could work for a law student in the first year, but does not deceive a federal judge.
Last week, the White House lawyer Pat Cipollone argued that he did not have to submit the full Müller report and the underlying data, saying the House Judiciary Committee lacked any "legislative purpose" for investigating Trump's behavior as detailed in the Müller report. He accused the justice system of the House of Representatives of carrying out a "pseudo-criminal investigation". Does that sound familiar to him?
The Achilles heel of Trump's strategy is that his extreme positions are not fictional or nuanced and can easily be dismissed as legally unfounded. Judge Mehta explicitly pointed out that "the legal issues presented do not require the court to resolve factual disputes, as the essential facts are not disputed." Since Trump challenged Congress's right to investigate these matters, these were only facts that the court needed to consider were basic facts that no one could dispute.
This is in stark contrast to previous clashes between the executive and Congress. For example, the dispute over certain materials that Congress had summoned as part of its investigation into Operation Fast and Furious resulted in a lawsuit that took eight years to settle. But the Obama administration was not as categorical and aggressive as Trump. Obama's Department of Justice produced several witnesses and documents and fought for other documents for which it claimed the privilege.
If Trump continues on this path – for example, because the former White House lawyer, Don McGahn, refused to appear before the House 's judiciary – he expects further quick decisions that will oversee his legal arguments in the coming weeks and months. No court will decide that the executive can categorically refuse to provide evidence and witnesses from a criminal investigation by the President of the United States from the House of Representatives.
Trump's team no doubt believes their initial arguments will fail once they fail. They will propose more differentiated arguments to protect only a limited portion of the material from disclosure. However, as any seasoned litigator knows, a judge's impression of a party's position is influenced by the history of the litigation. Since Trump's lawyers did not pay lip service to our constitutional system at the beginning, judges will later be less inclined to take their arguments seriously. In addition, the decisions of judges who reject Trump's challenges will influence other judges who consider similar challenges Trump has imposed on other congressional summonses.
Trump has appointed hundreds of federal judges, many of whom undoubtedly share his expansive views on the executive. (One of his nominees, Neomi Rao, is a member of the DC Court of Appeals that will hear the Mehta verdict.) But Trump has made it difficult for judges to show him the respect that courts otherwise owe to the President.
For this reason, an accomplished litigator does not dodge the risky legal strategy that Trump has developed. A more nuanced approach would be to offer limited scope to Congress and to raise very factual objections to Congressional summons, which would require a court to conduct a lengthy investigation to analyze it. Trump's current strategy lacks that sophistication.
As a result, not only does his strategy quickly lead to negative results, but it can very well convince a court to act with malice. In this case, the Parliament could force the courts to do what it is unable to do – to enforce compliance with Congress summonses. That could start the Congressional investigation or even an impeachment investigation.