It was barely over a week ago, I wrote about the “unusual”, to be kind, legal theories that Trump’s defenders were having to come up with to prevent the President from being held accountable in almost any way. Well, yesterday, Trump’s lawyers moved beyond out-of-the-mainstream legal theories to what borders on a parody of the law in a legal brief submitted to the courts.
In the DC Court of Appeals, the nation’s second highest court, Trump’s personal lawyers filed an appeal to prevent Trump’s accountant, Mazars, from providing his tax returns to the House Committee on Oversight and Reform. Their core legal argument in that brief was essentially that the Congress has no right to oversee the executive branch. Specifically, their argument states, “[T[his subpoena exceeds Congress’s investigative authority…[T]his investigation is not about legislation. It is about trying to prove that the President broke the law — an exercise of law-enforcement authority that the Constitution reserves to the executive branch. But even if Congress genuinely had legislation in mind,…such legislation would be unconstitutional: it would ‘establish a qualification for his serving as President (to wit, elimination of financial conflicts) beyond those contained in the Constitution’ and would otherwise ‘disempower him’ in the execution of his office…And even if Congress overcame both those hurdles, it could never show that the vast majority of documents it has subpoenaed from Mazars are pertinent to any stated legitimate aim”.
As Neal Katyal tweeted, “This brief is (constitutionally) insane”. He expanded on that cogent analysis by writing, “Trump’s brief complains that ‘Congress could always make this (non-falsifiable) argument [that their request has a legislative person] to justify any investigation. But that’s simply the result of the fact that, as the district court explained, Congress’s ‘power to investigate is deeply rooted in the nation’s history’. Congress, relying on English parliamentary tradition, has performed this function since the founding. To accept Trump’s argument to the contrary — to say Congress can’t look into matters that might involve crimes — would in many cases gut Congress’s ability to gain information it needs to legislate. And perversely, in Trump’s case, it makes a virtue of the fact that he has been accused of committing crimes… The idea that only the president can investigate the president is an argument for autocrats, not Americans”. But that is exactly the argument Trump’s lawyers are making.
The absurdity of that argument seems pretty clear. It also buttressed by the fact that current DOJ policy prevents the President from being indicted, which, if you believe Bill Barr, means that an investigation should therefore never begin. Summarizing the totality of the current Trump legal position, only the president can investigate the president but, since the president can not be indicted, the president should not investigate the president. Yes, it is as totally absurd as it sounds.
But Trump’s lawyers threw in another kicker that is specifically targeted at the Supreme Court, where they clearly intend to take this case when they lose at the DC Court of Appeals. According to Trump’s lawyers, “[T]he district court sided with the Committee. Indeed, it concluded that this subpoena does not even raise ‘serious constitutional issues’. That would surprise the Supreme Court. Congress has expressed an interest in legislating on the conflict-of-interest and financial-disclosure practice of the Justices, too…Yet replace ‘President’ with ‘Justices’, and the ruling below would, without question, authorize a congressional subpoena for the Justices’ accounting records — even for many years before they joined the Court”.
As Ian Millhiser notes, “It’s an audacious play…But Trump’s lawyers are apparently betting that a majority of the Supreme Court would corruptly give themselves immunity to investigation before they require 10 of the most powerful people in the nation — the president and the members of the Supreme Court — to comply with the same rules that every other government official must obey”. In other words, Trump’s lawyers are offering the Supreme Court a bargain that says if you protect me from any investigations into my illegal behavior, you can also protect yourselves from similar investigations of any criminal behavior that you might have engaged in, now or in the past. And this bargain seems particularly directed at Brett Kavanaugh who was never forced to adequately explain how he racked up tens of thousands of dollars in credit card deb t buying Washington Nationals tickets and how that debt was erased just before he was nominated by Trump.
What’s equally incredible is that these legal arguments are being made in order to avoid doing what every serious presidential candidate has done for the last forty years, ever since we found out that Nixon really was a crook. In addition, the argument itself, that the request for tax documents is itself part of a law enforcement effort, is almost an admission that they will reveal criminal activity. Needless to say, millions of Americans are “forced” to provide tax documents to banks when seeking a loan and do not consider that a “law enforcement” function. Moreover, the idea that forcing the President to comply with financial disclosure requirements, which would seem quite necessary in order to ensure no Emoluments Clause violations, would somehow “disempower” him also speaks to a mindset of guilt.
Much in the same way that Trump has totally bamboozled the media with his constant trolling and statements that are totally at odds with reality, so too are Trump’s lawyers as they come close to trolling the courts with legal reasoning that defies centuries of law, even as Trump himself basically dares the legal system to hold him to account for his own violations of law that he freely admits. In these cases, all Trump’s lawyers are really trying to do is to keep these issues tied up until the 2020 election gets close enough that impeachment never gets off the ground. To get there, there is no legal argument that would be considered too absurd.
Originally published at https://thesoundings.com on June 13, 2019.