I got curious, so I found a copy of the Trump suit against Deutsche Bank and Capital One. I got curious because David Cay Johnston says it's a suit aimed mainly at providing talking points for FoxNews.
The complaint appears to mostly be aimed at creating talking points for Fox News hosts. A diligent person would have sued as soon as investigations were announced, not long after the banks began cooperating.
By "cooperating" Johnston means the banks have already given information to the New York Attorney General. Trump has done nothing to stop that flow of documents.
The timeline is this: Deutsche Bank and Capital One are set to release documents to Congress (pursuant to subpoena) on May 6. The suit requests declaratory judgment that the subpoenas are invalid. The suit names a raft of individuals, as news reports have noted. However, the suit only names two defendants: the banks to which subpoenas have been issued. Which raises a question of why the Congressional committees are not parties to the suit, since the subpoenas give them an interest in the matter. The answer, of course, is: Deutsche Bank and Capital One have no interest in enforcing the subpoenas, and Trump (et famille) don't want Congress involved in this case. Why not? Because Congress will seek to defend its interests, and the banks won't, because they have no interest to defend. The plaintiffs also seek a TRO and a temporary injunction against the subpoenas, again without joining the issuer of those subpoeanas. What that means is, they want an ex parte proceeding all the way around, where they don't face any party with an interest or standing to enforce these subpoenas.
Nice work if you can get it. Now let me explain why you can't.
A temporary restraining order is what is called "extraordinary relief." It is issued ex parte, that is, without both parties present at a hearing where the order is issued as a result of the hearing. That's why it's "extraordinary." Courts don't hand these out the way they allow lawsuits to be filed (any fool can file a lawsuit). It takes a showing of immediate and irreparable harm to get one issued, and it also requires notice to the affected party so all parties can attend a hearing on making the TRO a temporary injunction that will last until the case is finally resolved. Both a TRO and a temporary injunction require a showing that the relief must be granted to prevent irreparable harm to the party moving for the relief.
But that relief can't be granted against Deutsche Bank and Capital One, as they haven't issued the subpoena, and will suffer no harm if it is quashed. They can be enjoined from compliance, and so are proper parties to the suit. But the adverse parties whose interests are affected by a TRO or an injunction (or declaratory judgment) are not the banks. The issuing Congressional committee have to be joined to the suit in order for the court to issue a TRO that a responsible party can respond to. It's Congress' subpoena, they have to be allowed to defend it. The plaintiffs also can't seek declaratory judgment without joining the affected parties (i.e., Congress through its committees) who have to have notice and hearing from the adverse parties affected by a declaratory judgment.
Which means, without the legalese, that Trump is trying to slice this so thinly it has only one side; and the courts won't allow that. Either he amends his pleadings to include the appropriate committees of Congress behind these subpoenas, or the case gets tossed on a failure to state a justiciable claim. And they don't want Congress in this lawsuit because they know Congress will fight it (why should the banks waste money defending a subpoena they didn't issue?).
This isn't a delaying tactic; this is legal malpractice. And it's as frivolous as it gets (pace, Professor Vladeck) because it excludes the very parties affected by the relief sought. That means the court can't grant the relief even if it wants to. Not, at least, until plaintiffs amend their pleadings; and I think plaintiffs really don't want to do that. If they do, it will certainly delay any relief they seek.
Ironic, no?
Hmmmm...NEW: Judge sets oral arguments in the Trump v. Deutsche case for May 22 at 2:30 p.m. pic.twitter.com/svnHQSAufc— Adam Klasfeld (@KlasfeldReports) May 2, 2019
This is not an order for relief; not even a TRO, apparently(IIRC, TRO can only l as 10 days before a hearing with all parties concerned). Wonder what the oral arguments are for. Ah, found it:
Here's the document screenshot-ed at the top of the thread. https://t.co/BUqNZ5l7R6— Adam Klasfeld (@KlasfeldReports) May 2, 2019
This makes clear several points:
1) The House is filing to intervene in the suit (deadline May 3, 2019).
2) Plaintiffs have to file a Motion for Preliminary Injunction by that date.
3) Response to the subpoenas is held, by agreement with the House of Representatives, until 7 days after the court rules on the Motion for Preliminary Injunction.
In other words, Congress (via the House) has to be a party to this suit in order for anything to happen. A hearing on this motion will basically be a trial on the merits, as the moving party has to prove they will prevail at trial and the relief granted now will be relief granted at trial (but must be granted now because of irreparable harm). If the court declines to grant the injunction, the case is pretty much over.
Not much of a delay, really.
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