Legal Arguments

...and squids....

Nancy Pelosi, Speaker of the House, reminds the President of the co-equal branches of government:

“When they are saying, ‘unless you have a legislative purpose, you cannot ask any questions, you can’t investigate unless you have a legislative purpose.’ But one of the purposes that the Constitution spells out for investigation is impeachment and so you can say you need this information to carry out our oversight responsibilities and among them is impeachment,” she said, reiterating impeachment is just a “path” to get the information, not necessarily the endgame.

In other words, you don't need to start impeachment hearings to have the power of investigation the impeachment power provides.

Pelosi is playing the chess game the courts understand. Trump's lawyers are playing Chinese checkers. By themselves. And still losing.

Case in point:  their brief in support of their motion for a preliminary injunction in the case of the Deutsche Bank/Capital One subpoenas.  Once again, they argue this is an attempted "law enforcement" function, and that power is reserved to the DOJ.

Yeah, good luck with that, especially in light of Pelosi's statement, which is probably already in the quiver of the House lawyers in that case.  There is a fun new wrinkle:  whether the Right to Financial Privacy Act applies to a sitting President.  Actually, their argument is that RFPA applies to Congress, which makes this a case of first impression which the court must take pleadings and arguments on, and therefor it must enjoin the subpoenas until that issue is decided at trial.  Of course, this may be a statement they regret:

Never before has Congress used its investigatory powers to rifle through the private financial information of a sitting President, his family, and his businesses.

They may regret it for two reasons:  1) No President in modern history (at least) has failed to divest himself of his business interests while in office, and 2) the emoluments clause certainly gives Congress authority to consider implementing legislation (as the VRA did for the 15th Amendment, for example).  Kind of undercuts their "law enforcement" argument, no?  They even try to make it scary and personal:

 If Congress can conduct limitless, suspicion-free, judicially-unquestionable investigations to conduct “case studies” or find “potential conflicts of interest,” then it can subpoena anyone’s private financial records. It could freely comb through the credit-card purchases, accounting documents, banking records, and investment portfolios of Cabinet heads, private companies, fellow Congressmen, political opponents, and even federal judges—as well the records of their families, and their families’ families. This Court would do well to pause, and at least receive full briefing and argument on the merits of these serious constitutional questions, before endorsing the Committees’ unchecked view of congressional subpoena power.  (emphasis added)

But not necessarily persuasive.  Besides, Congress is not asking for limitless, suspicion-free, judicially-unquestionable investigations.  Congress is conducting an investigation in continuation of the one concluded by the Special Counsel, and it's concerns are hardly "suspicion-free."  Methinks the gentleman doth protest too much.

Not much of a legal argument, either,  They're pounding on the table; they don't have anything else to hit.  Interestingly, they shift arguments (allowed) and try to argue Eastland favors them.  But they say this:

Courts are deferential to Congress only after they ensure that it is not using investigations to transgress the separation of powers.

Which means, of course:  "but her e-mails!"  Er, sorry:  "but law enforcement!"  And again, the narrow (v. broad Congressional oversight powers) response is:  1) impeachment, and 2) emoluments. (They cite Quinn v. U.S., 349 U.S. 155.  I can't find a good text of the case on-line, but it deals with two private citizens called before the House Unamerican Affairs Committee who asserted their 5th amendment rights not to be forced to testify whether or not they were or had been Communists.  They were found in contempt of Congress and tried in federal court.  The Supreme Court reversed, but not on grounds Congress was engaging in "law enforcement."  I mention this because their legal arguments seem to be incredibly weak, and based on either dicta, or just flat taking statements out of context based on keyword searches for those terms in any case that mentions "Congress".)  And besides, Yer 'Oner, it's all political!

This is not a “case study” of a well-known individual who frequently uses banks; it is an attempt to collect private information about a political rival in the hopes of politically damaging him by 2020.

You can't make this stuff up, especially after Giuliani's much publicized trip to Ukraine that finally wasn't, but, as JMM pointed out, still could be (what, they don't have Skype in Ukraine?). Pot calling kettle black is not the kind of argument you expect from lawyers who have a case to make.

The RFPA argument strikes me as a Hail Mary.  They seem to think so, too, as they put it last in their brief, and try to obscure the fact a sitting President is no longer a private citizen who can expect the protections of a private citizen, especially in the face of Congressional oversight powers, impeachment powers, and the emoluments clause.  A private citizens doesn't face those powers; the President does.   The President can't be a private citizens and the POTUS at the same time.  IMHLO, of course.

We'll see how the Court feels, and I am admittedly a biased analyst.  I'd also need to review the House brief in response to this one, to see if they make any legal arguments worth noting.  But this reads more like squid ink than anything else, to me.