It is hard to believe I am actually writing this, but, back in the early part of the Trump administration, there were actually people like Jim Mattis, Don McGahn, and, incredibly, Jeff Sessions who felt it was important to at least provide a veneer of legal authority and credibility to actions taken by the administration. That was not because they were good people who were actually driven by the desire to protect the rule of law. In fact, they were solely interested in using the power provided by Trump to advance their own agendas. But they had been immersed in a system that always demanded a sheen of legality and that gloss could still be provided by career staff who were proficient in that very task.
All those people, including the career bureaucrats, are largely gone from the administration now and, accordingly, the legal arguments thrown out by the Trump administration these days are a parody of law, a charade of legal positions whose details often contradict the very case the administration hopes to make.
Treasury Secretary Steve Mnuchin has refused to respond to the clearly lawful request by the House Ways and Means Committee to provide Trump’s tax return s. The statute that is the basis for this request simply states that the Treasury “shall furnish” tax information when it is requested and there is actually no requirement that the request be part of some legislative purpose, although having such purpose makes the request more forceful. Nevertheless, Mnuchin has refused, saying, “in reliance on the advice of the Department of Justice, I have determined that the Committee’s request lacks a legitimate legislative purpose, and…the Department is therefore not authorized to disclose the requested returns and return information”. Mnuchin then directed reporters to the Justice Department for the actual legal opinion to back up his refusal. When contacted by the media, the Justice Department referred reporters back to the Treasury Department. In other words, there is currently no legal opinion to support Mnuchin’s position from the DOJ, despite having weeks to prepare one. Mnuchin, however, seems to be hoping the Attorney General will reach into his bag of Barr’s unknown mythical legal theories in order to bail out the Treasury Secretary in the same way he bailed out the President. But as it stands now, Mnuchin is basing his refusal on a legal opinion that apparently does not exist.
The President’s own personal lawyers are also trying to prevent two House committee’s from obtaining financial records concerning Trump, his family, and his business associates from Deutsche Bank (DB) and have sued accordingly. His lawyers are using the same grounds as Mnuchin for attempting to block DB from providing those documents, claiming the request has no “legitimate legislative purpose”. In support of their case they cite a prior case, Eastland v. US Servicemen’s Fund, which concerned an effort by a Senate Committee to receive the financials on a non-profit that set up coffeehouses where views opposing the Vietnam War could be expressed. In support of their case, Trump’s lawyers cite a footnote that merely states that “a court may inquire to determine whether a legitimate legislative purpose is present”, but does not require Congress to actually have such a purpose. Moreover, the Supreme Court ruled in that case that “We conclude that the actions of the Senate Subcommittee…are therefore immune from judicial interference”. Further, the Court wrote, “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’”.
In other words, Trump’s lawyers are basing their objections to DB releasing the information to Congress on a case that rules that Congress is perfectly entitled to ask for and receive that information. It is a repeat of what the DOJ has done in their brief to support the absurd challenge to constitutionality of the ACA. In that filing, the DOJ cited the dissents in the case NFIB v. Sibelius that, wait for it, ruled the ACA constitutional. Now, Trump’s personal lawyers are entitled to make their own frivolous claims. The DOJ, on the other hand, is not, but is expected to respect precedent and existing law. It is doing neither when it comes to the ACA suit.
Late last night, discussions between the DOJ and the House Judiciary Committee over getting the full unredacted Mueller report broke down and AG Barr threatened to invoke executive privilege over all the materials the Judiciary Committee is seeking if the Committee votes to hold him in contempt of Congress. Barr writes, “In the face of the Committee’s threatened contempt vote, the Attorney General will be compelled to request that the President invoke executive privilege with respect to the materials subject to the subpoena”. The absurdity of Barr’s threat is hard to overstate. First, executive privilege covers governmental deliberations between the President and his advisers. It clearly does not cover all the “personal privacy” redactions that Barr made to the Mueller report unless those involved contact with the President. Nor does it cover grand jury material not related to interactions with the President, although the effort to obtain those materials could be challenged on other grounds. Nor should executive privilege be used as a cudgel to force the legislative branch into certain actions. In addition, to be fair, there are also real, actual legal questions as to whether the President has waived executive privilege by allowing administration officials to testify to Mueller. But, as Matthew Miller describes Barr’s position, “‘Please don’t force me to engage in this cover up’ is a pretty transparent argument”.
At least in the above instances, the Trump administration is offering up some legal theories for their actions, as empty and vapid as they might be. In other cases, the administration is simply not responding at all. The administration is required to submit a report on its imposition of sanctions on Russians under the Magnitsky Act at the beginning of each year. The administration has yet to release that report, now four months late, citing bureaucratic delays. That excuse might have been plausible in February or March because of the government shutdown in January. But is increasingly implausible now that we are in May.
In New York, Attorney General Letitia James has filed a lawsuit against the IRS and the Treasury Department, accusing them of “failing to respond to records requests as required by law”. The suit focuses on a change in standards implemented by the IRS in June, 2018 which eliminated disclosure requirements for those who give over $5000 to non-501(c)(3) tax exempt organizations. According to James, “My office depends on these critical donor disclosure forms to be able to adequately oversee non-profit organizations in New York. Not only was this policy change made without notice, the Treasury and the IRS are now refusing to comply with the law to release information about the rationale for these changes”. Accordingly, James then filed a FOIA request to obtain that information which was also ignored by the IRS, and which has now led to this lawsuit. To summarize, the IRS changed an important rule with no hearings and no notice that effected states’ ability to oversee non-profits, and is now refusing to provide the rationale or necessary guidance to the states for implementing that rule.
Similarly, the Commerce Department seems to be blowing off the requests from the House Oversight Committee for documents and testimony about the decision to add the citizenship question to the 2020 Census. The DOJ has refused to honor a related subpoena of John Gore, head of the Justice Department’s Civil Rights Division, because the Committee would not allow a DOJ lawyer to be present at the hearing, thereby providing at least the thinnest of rationales for its refusal to comply, something the Commerce Department apparently has not even bothered to do.
The sum of all of these cases and others is that, far from objecting to specific Congressional oversight requests and providing legal and administrative rationales for not doing so, the administration is simply ignoring the requests entirely. When they do finally proffer some kind of defense for their refusal, it is often baseless. Citing legal cases that reached the entirely opposite conclusion of what the administration is arguing may be pathetic, but at least it is an amateurish defense of some kind. In so many cases, the Trump administration is not even bothering to do that. And that is pretty much the definition of a lawless government.
Lastly, there is this constant media refrain that Trump’s attempts to force Congress to litigate all these oversight requests are likely to be successful because the courts cases will drag on until after the 2020 election. As I have written previously, why should any of us accept that result as justice in any sense, despite it having been provably successful in the past. Delaying a judicial decision past the point it makes any difference is not justice in any sense of the word. Moreover, as Jill Wine-Banks points out, that media refrain that delay will be successful is refuted by other cases, especially when part of an impeachment inquiry. Wine-Banks notes, “In Watergate, we subpoenaed tapes for trial on April 16, got rulings from trial court, Appeals Court and Supreme Court ruled for us on July 24. Took just over 3 months…On March 1 we gave road map to Judge Sirica. He heard arguments ruled in our favor, defendants appealed, arguments were heard on and Appeals Ct ruled in our favor same day. On March 26 the full evidence went to the House Judiciary Committee. All it took was 25 days!”
Originally published at https://thesoundings.com on May 8, 2019.