The Waiting Game

The main argument of Trump's team is that the Oversight Committee subpoena of Trump's financial records is meant as a "law enforcement" effort, rather than a legislative one. Mehta doesn't seem to be buying it.

— Kyle Cheney (@kyledcheney) May 14, 2019

So let's start with separation of powers:

The Senate Subcommittee on Internal Security, pursuant to its authority under a Senate resolution to make a complete study of the administration, operation, and enforcement of the Internal Security Act of 1950, began an inquiry into the various activities of respondent organization, to determine whether they were potentially harmful to the morale of United States Armed Forces. In connection with such inquiry, it issued a subpoena duces tecum to the bank where the organization had an account, ordering the bank to produce all records involving the account. The organization and two of its members then brought an action against the Chairman, Senator Members, Chief Counsel of the Subcommittee, and the bank to enjoin implementation of the subpoena on First Amendment grounds. The District Court dismissed the action. The Court of Appeals reversed, holding that, although courts should hesitate to interfere with congressional actions even where First Amendment rights are implicated, such restraint should not preclude judicial review where no alternative avenue of relief is available, and that, if the subpoena was obeyed, respondents' First Amendment rights would be violated.

Held: The activities of the Senate Subcommittee, the individual Senators, and the Chief Counsel fall within the "legitimate legislative sphere," and since it is determined that such is the case, those activities are protected by the absolute prohibition of the Speech or Debate Clause of the Constitution against being "questioned in any other Place," and hence are immune from judicial interference. Pp. 421 U. S. 501-511.

That's Eastland v. U.S., 1975.

Now, the 1st Amendment didn't come up in arguments before the bench this morning, but "legitimate legislative purpose" did.  This, in summary, is what the Court in Eastland said about that:

(e) The subpoena cannot be held subject to judicial questioning on the alleged ground that it works an invasion of respondents' privacy, since it is "essential to legislating." P. 421 U. S. 508.

(f) Nor can the subpoena be held outside the protection of speech or debate immunity on the alleged ground that the motive of the investigation was improper, since, in determining the legitimacy of a congressional action, the motives alleged to have prompted it are not to be considered. Pp. 421 U. S. 508-509.

That's the separation of powers issue.  This is the point the court this morning picked up on:

Consovoy [Trump's lawyer] argued throughout Tuesday’s hearing that Congress has no basis for investigating whether Trump’s financial disclosures are accurate, contending that it’s a “law enforcement issue” that’s not tied to a specific legislative agenda.

[Judge] Mehta cast serious doubt on those claims, suggesting at one point that investigations of such financial violations are “strictly” under Congress’ purview and that the courts have “very little, if any” discretion over Congress’ asks.

“I almost wonder whether I have no role,” Mehta told Consovoy at one point. 

Is that the whole of Trump's argument:  "legitimate legislative purpose"?  It seems to be:

Trump lawyer CONSOVOY says he wants "a week or two" to ask whether Rep. @Jim_Jordan might voluntarily turn over Oversight Committee documents to the Trump legal team that might support the argument that the investigation of Trump's finances lacks a legislative purpose.

— Kyle Cheney (@kyledcheney) May 14, 2019

The court did, by the way, agree to hold the record open for four more days for any additional information the parties wanted to submit, but added:  “We’re not going to drag this out.”

Which, clearly, is all Trump's lawyers were there to do.  Consider this exchange, and take it from a former trial lawyer of very limited experience (no brag, just fact):  you never want to have to admit this to the bench.

At a hearing on Tuesday in D.C., U.S. District Judge Amit Mehta grilled Trump’s lawyer William Consovoy about his arguments that the subpoena exceeded Congress’ constitutional authorities.

At one point, Mehta asked Consovoy if it was his view that Congress’ investigations into Whitewater and Watergate were beyond the scope of their authority.

Consovoy stammered a bit, before telling the judge he would need to look more closely at the bases of those investigations.

More proof this didn't go well for Consovoy?

Judge Mehta also grilled Consovoy on the relevant case law and asked the lawyer specifically whether there was a case more recent than one decided in 1880 that found a congressional subpoena overstepped its authority.

After some quibbling, Consovoy went on to concede that the 1880 case, Kilbourn v. Thompson, was the most recent one dealing with that particular issue but he stressed that the case was “good law” and relevant to the Trump lawsuit. 

It's the "quibbling" part that's interesting.  Consovoy didn't want to admit the paucity of the case law (it means he's trying to break new ground, never a good look in the land of precedent) on his argument.  And it does seem the House counsel had better factual arguments on his side:

During the hearing, Mehta also asked pointed questions of the House Democratic side. Mehta noted that Cummings suggested at the outset of his subpoena request that he wanted to “determine whether the president may have engaged in illegal conduct” before taking office.

“This is not an impeachment proceeding. What’s the basis to investigate illegal conduct before his tenure in office?” Mehta wondered.

Letter replied hypothetically that there could be significant questions about whether Trump was under the thumb of a foreign power.

“President Trump has conceded, I believe, that he was trying to get a hotel in Moscow. Had he not been elected he would have pursued that,” he said, noting that the president may have taken questionable steps to secure that hotel.

“It may very well be that the Russians know that. It may very well be that the Russian oligarchs know that. We need to know that … Is the president of the United States beholden to foreign interests who can hold certain things over his head?” Letter continued.