Monday, April 22, 2019
President Trump filed suit today to block a House committee subpoena to Trump's accountant, Mazars USA, LLP, for Trump's financial records. The move is a response to House Oversight and Reform Committee Chair Elijah Cummings's April 12 subpoena for records from 2011 to 2018.
The memo supporting the subpoena claims that "[t]he Committee has full authority to investigate whether the President may have engaged in illegal conduct before and during his tenure in office, to determine whether he has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions, to assess whether he is complying with the Emoluments Clause of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities."
President Trump argues in the filing that the subpoena exceeds the Committee's authority, because it is not in furtherance of a "legitimate legislative purpose"; that it violates the separation of powers by seeking to enforce the law, not legislate; and that it's just part of a larger House effort to investigate "anyone with even the most tangential connection to the President" in order to embarrass him. He notes that the time-period covered by the subpoena includes time when he was not yet in office.
In support of his claims, Tump's filing cites Eastland v. U.S. Servicemen's Fund. That's a little surprising, given the deference to Congress that oozes throughout that ruling. Recall that Eastland tested a congressional committee's subpoena of a bank for financial records of a private non-profit, U.S. Servicemen's Fund, that "further[ed] the welfare of persons who have served or are presently serving in the military." The Court ruled that the subpoena was a valid exercise of congressional authority because it fell within the "sphere of legitimate legislative activity," that the Speech and Debate Clause protected against the suit in order to preserve "the integrity of the legislative process by insuring the independence of individual legislators," and that the purposes behind the subpoena didn't matter. Moreover, the U.S. Servicemen's Fund challenged the subpoena under the First Amendment, not just under the separation of powers. The Court said that this challenge "ignores the absolute nature of the speech or debate protection."
Applying well established and deferential standards for congressional investigations and subpoenas--and in particular the Eastland case--to Cummings's subpoena, it's hard to see how Trump wins, at least on his arguments. But winning on the merits may not be the (only) thing that Trump is trying to do. With this move, the administration signals (again) that it's going to fight tooth and nail to resist House Democrats' efforts at oversight, tie them up in court, and even try to run the clock.