Tuesday, April 23, 2019

Trump's finances subject of suit against House Oversight Committee Chair

It’s worth remembering that any time Trump World acts like it has something to hide, it probably does. So, as Steve Benen (MSNBC/MaddowBlog) reports, To keep financial records secret, Trump sues key House Democrat.

Last week, as part of the congressional investigation into Donald Trump’s controversial finances, House Oversight Committee Chairman Elijah Cummings (D-Md.) issued a subpoena to Mazars USA, directing the firm to turn over the president’s financial records. Almost immediately, the president’s new lawyers – hired to keep Trump’s finances secret – sent a letter to Mazars USA, insisting that the firm ignore that federal subpoena.

Today, Trump and the Trump Organization took this one step further.

Lawyers for President Donald Trump and the Trump Organization are suing House Oversight and Government Reform Committee Chairman Elijah Cummings to block a subpoena for years of financial records from accounting firm Mazars USA.

The lawyers filed the lawsuit Monday in the U.S. District Court for the District of Columbia, saying the subpoena “lacks any legitimate legislative purpose, is an abuse of power, and is just another example of overreach by the president’s political opponents.”

To the extent that reality matters, the House Oversight Committee recently heard testimony from Michael Cohen, the president’s former personal attorney and fixer, who altered lawmakers to a series of alleged financial misdeeds committed by Donald Trump.

Lawmakers are also aware of credible allegations of criminal fraud, criminal tax evasion, and money laundering, which the American president exploited to fuel his rise to power.

In other words, the idea that Cummings’ request for information “lacks any legitimate legislative purpose” seems a little silly: the Oversight Committee, which has an expansive purview, is obviously following up on evidence of suspected wrongdoing.

Indeed, it seems this new lawsuit does little except make clear that the president and his team are desperate to keep his financial records, including his tax returns, secret.

And as a rule, when Trump World acts as if it has something to hide, it’s because Trump World has something to hide.

The new litigation, which asks a federal court to block compliance with Cummings’ subpoena, is online in its entirety here (pdf).

"investigations of any matter

The President’s legal team emphasizes two areas of complaint, one legal and one political. First, they argue that without a specific piece of legislation at stake, the House committee has overstepped its authority. Second, they charge that the House Oversight Committee, and specifically its chair, Elijah Cummings, has issued the subpoenas for purely partisan political reasons.

With respect to the first point they argue on pp. 2–3:

Chairman Cummings has ignored the constitutional limits on Congress’ power to investigate. Article I of the Constitution does not contain an “Investigations Clause” or an “Oversight Clause.” It gives Congress the power to enact certain legislation. Accordingly, investigations are legitimate only insofar as they further some legitimate legislative purpose. No investigation can be an end in itself. And Congress cannot use investigations to exercise powers that the Constitution assigns to the executive or judicial branch.

And, on p. 6, they pronounce “… when a subpoena is issued by a single committee, any legislative purpose is not legitimate unless it falls within that committee’s jurisdiction.”

However, Article I, Section 5, of the Constitution states that “Each House [of Congress] may determine the Rules of its Proceedings …”

The Committee on Oversight and Reform is the main investigative committee in the U.S. House of Representatives. It has authority to investigate the subjects within the Committee’s legislative jurisdiction as well as “any matter” within the jurisdiction of the other standing House Committees.

… House Rule X, clause 4(c)(2), provides that the Committee “may at any time conduct investigations of any matter without regard to clause 1, 2, 3, or this clause [of House Rule X] conferring jurisdiction over the matter to another standing committee.”

Thus, on my reading, a legislative end is not required to motivate investigations by the House Oversight and Reform Committee (but see below). Neither is the Oversight Committee prohibited from investigating matters in the jurisdiction of another committee (again, see below).

With respect to the second point in the President’s suit the plaintiffs argue, and I quote:

  • “Its goal is to expose Plaintiffs’ 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.”
  • Beginning on p. 6, they list numerous quotes in evidence of “House Democrats’ Campaign of Abusive Investigations.”
  • For example, on p. 9, “The Mazars subpoena is based on one of the worst examples of the House Democrats’ zeal to attack President Trump under the guise of investigations: Michael Cohen’s testimony to the House Oversight Committee on February 27, 2019. The Cohen hearing was a partisan stunt …”

That reads like a complaint that all this happens in a political environment - a charge that seems unlikely to advance a legal case.

However, and relevant to both of the two points examined above, Talking Points Memo notes that:

In a separate probe involving Trump’s tax returns, [Trump’s attorney] Consovoy accused House Ways and Means Committee Chair Richard Neal (D-MA) of intruding into the President’s private affairs as part of a political witch hunt. In that case, Neal tied the request to Congress’ responsibility to oversee the IRS. The request was linked to the Democrats’ marquee anti-corruption legislation known as H.R. 1, which includes a provision demanding that all presidential and vice-presidential candidates disclose at least ten years of their returns.

So: I think the President’s suit is without merit. But I am open to correction on these matters by those with relevant legal expertise. Write to me at wsmaki@gmail.com.

UPDATE

Steve Benen has additional comments on the viability of the suit in Trump lawsuit hopes to limit the scope of congressional oversight.

… the Washington Post highlighted an interesting tidbit from the lawsuit, which I’d overlooked after initially reading the filing.

In Trump’s lawsuit, his attorneys cited a Supreme Court decision called Kilbourn v. Thompson, which found “no express power” in the Constitution for Congress to investigate individuals without pending legislation.

The problem with that argument, said University of Baltimore law professor Charles Tiefer, is that Kilbourn v. Thompson is a case from 1880.

And it was overruled by a decision in 1927, Tiefer said.

“By reaching back to precedent to the 1880s, they’re seeking … to overturn the entire modern case law that the courts have put together to respect Congress’s investigative power,” Tiefer added, referring to Trump’s lawyers. “It’s a very long shot…. These suits look like an act of desperation by the Trump lawyers.”

It’s obviously embarrassing that the president’s new legal team didn’t realize it was citing a Supreme Court case that was overturned nearly a century ago, …

Dubious legal citations

In his April 23rd Subscriber’s post email, Judd Legum (popular.info) also comments on the Trump team’s legal logic - or lack thereof. (Emphasis added.)

The primary case cited by Trump’s lawyer, William Consovoy, is called Eastland v. U.S. Servicemen’s Fund. But in Eastland, the Supreme Court confirmed Congress’ broad authority to conduct oversight as it sees fit.

In that case, the court found that a Congressional subpoena to determine if a private organization was “undermining the morale of the Armed Forces” was in the “within the legitimate legislative sphere.” The case “oozes” with “deference to Congress” about the proper scope of an oversight investigation. The court found that the “purposes behind the subpoena didn’t matter.”

Consovoy also cites the 1880 Supreme Court case of Kilbourn v. Thompson. That case was overruled in 1927 and “has not been followed for the last 90 years.”

Trump’s lawsuit appears to be less about winning and more about signaling the administration will fight “tooth and nail to resist House Democrats’ efforts at oversight, tie them up in court, and even try to run the clock.”

So it turns out that the two cases presented by Trump’s attorney in support of the suit actually work against the suit.

Benen concludes that the suit “raises anew questions about what it is Trump and his team are so desperate to hide.”

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