Tuesday, April 23, 2019

Out for Popcorn; Back Soon

Yeah, Trump may imagine it's that simple, but it isn't.  As David Cay Johnston said:

“Trump’s complaint goes on to assert that Congress has no power to investigate him for anything he declares to be his conduct as a private citizen. This sounds like what you might hear from a random drunk in a bar,” the author writes. “Accepting Trump’s theory would mean that he can block any inquiry into ‘possible violations of federal law’ by himself. That’s the kind of self-preserving power held by the lawless rulers Trump says he admires—Duterte, Erdogan, Kim, Putin and Xi.”

Johnston points out, “As I’ve long said, Trump has no idea what is in our Constitution. This lawsuit is proof. The reason that his lawyers, who took required courses on our Constitution to qualify for their law degrees, signed on to this is a mystery. Whatever the answer, it is worth considering whether their licenses to practice law should be revoked for ignorance.”

“Trump is saying, in effect, let’s ignore the oversight function of Congress, such as examining whether our constitutional executive, currently Trump, is faithfully executing the duties of his office. He’s not, so of course he wants no oversight,” he continued.

To put that in context, a nice summary of the relevant Supreme Court decision on Congressional subpoenas:

In Eastland v. United States Servicemen’s Fund, a private anti-war organization challenged a congressional subpoena aimed at its bank, claiming that the subpoena violated its First Amendment rights. The Supreme Court held that the subpoena was “immune to judicial interference” under the Constitution’s speech-or-debate clause, because the subpoenaing committee’s actions fell within the “legitimate legislative sphere.”

As the Court noted, the purpose of that clause — which prevents members of Congress from being “questioned in any other place” about their “Speech or Debate in either House” — is to “insure that the legislative function the Constitution allocates to Congress may be performed independently.” And, make no mistake, the legislative function is not confined to debating and passing legislation. The legislative function includes investigation. Here’s the Court in Eastland:

The power to investigate and to do so through compulsory process plainly falls within that definition. This Court has often noted that the power to investigate is inherent in the power to make laws because “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” . . . Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate.

“Where the legislative body does not itself possess the requisite information — which not infrequently is true — recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.” [Internal citations omitted.]

Moreover, the demand for Trump’s returns clearly pertains to an area where “legislation could be had.” The private business activities of American presidents are subject to congressional regulation (within constitutional limits), and knowledge about those activities is relevant to congressional decision-making. Impeachment, too, is clearly and unequivocally a legislative function. Indeed, it’s exclusively a legislative function.

In short:  the subpoena would have to be especially egregious for the Court to interfere with it.  Hard to see how they would, actually.

So Trump's Treasury Secretary is going to refuse a Congressional request made under applicable law, also.   As you can see from the quoted language above, and the analysis of same, they don't really have a leg to stand on in either case.  It's a delaying tactic, pure and simple; a lawsuit will be filed when the Congress subpoenas the Treasury Secretary, though I'll be curious to see if the DOJ files the suit (who else would?  But why would the DOJ join a suit against Congress?).  How effective a delay it is, is anybody's guess.  Yes, the courts usually grind very slowly, but the suit against the House is asking for a TRO, which means they have to get to court PDQ to prove they are serious.  And a TRO, if issued, requires a hearing on a temporary injunction in a matter of days, a hearing where both parties must be present (TRO's are usually issued ex parte).  Which means in this case it's a Perry Mason-esque setup.

For those of you benighted and ignorant of Raymond Burr's greatest role, Perry almost always wins his client's freedom in the preliminary hearing, where all the prosecution has do to is present enough evidence to have the defendant bound over for trial (a probable cause standard, well below proof beyond a reasonable doubt).  My favorite episode recently is one where Perry is trying a case out of town, and the judge is unaccustomed to his defense tactics.  The judge complains it's the longest preliminary hearing he's ever held, since it goes into another day.  But the Congress, resting almost solely on Eastland, can win its case in the hearing on the preliminary injunction, if the judge doesn't refuse to grant the TRO on Eastland grounds to begin with.  The D.C. Circuit would have to take the appeal, but the Supremes could summarily deny it easily, just in the interest of staying out of this particular dogfight.

Trump has 18 months or more left in office; these suits could end easily within that time frame.

Pass the popcorn.

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