Congress wins one, loses one against Trump
House closes in on his financial records; ex-aide won’t testify
WASHINGTON — The fight over President Donald Trump’s systematic stonewalling of Congress escalated on two fronts Monday, as a federal judge upheld a subpoena for his financial records even as the White House instructed its former top lawyer to defy a subpoena to testify before lawmakers.
In the first court test of Trump’s vow to resist “all” subpoenas by House Democrats, a judge ruled that his accounting firm, Mazars USA, must turn over his financial records to Congress — rejecting his lawyers’ argument that lawmakers had no legitimate power to demand the files.
Trump separately moved to block Congress from receiving testimony by former White House counsel Donald McGahn at a hearing scheduled for Tuesday, denying House Democrats one of the most important eyewitnesses to Trump’s attempts to obstruct the Russia investigation. McGahn will not appear, his lawyer said later.
The fights raise separate but overlapping issues: how far Congress’ power to subpoena information extends, what Trump can apply executive privilege to in order to keep secret, and whether a president’s senior aides are “absolutely immune” from subpoenas, meaning they do not even have to show up when ordered to appear before lawmakers.
Both disputes grew out of weeks of trading threats and rival interpretations of where to draw the line between the president’s
power to keep information secret and Congress’ power to obtain records and testimony for oversight investigations.
They are still far from resolved. Trump said he will appeal the ruling that his accounting firm must turn over his financial records, raising the prospect of lengthy litigation. The dispute over McGahn’s testimony seemed similarly destined to end up in court.
Asked why he was telling McGahn to defy the subpoena, Trump suggested that his lawyers were just trying to protect the institution of the presidency.
“They’re doing that for the office of the presidency, for future presidents,” he told reporters on the South Lawn of the White House before departing for a campaign rally in Pennsylvania. “I think it’s a very important precedent. And the attorneys say that they’re not doing that for me. They’re doing it for the office of the president. So we’re talking about the future.”
‘Resounding victory’
In the financial records case, Trump’s legal team, led by William Consovoy, had argued that the subpoena by the House Committee on Oversight and Reform exceeded its constitutional authority because it had no legitimate legislative purpose in seeking Trump’s data. Lawmakers were just trying to dig up dirt — such as finding out whether the president broke any laws — for political reasons, Trump’s lawyers argued.
But Democrats have said they need the records because they are examining whether ethics and disclosure laws need to be strengthened. In a 41-page ruling, Judge Amit Mehta of the U.S. District Court for the District of Columbia, an appointee of President Barack Obama, said that justification was sufficient to make the subpoena valid.
“These are facially valid legislative purposes, and it is not for the court to question whether the committee’s actions are truly motivated by political considerations,” he wrote. “Accordingly, the court will enter judgment in favor of the Oversight Committee.”
Rep. Elijah E. Cummings, DMd., chairman of the oversight panel, hailed the decision as a “resounding victory” for the rule of law and constitutional checks and balances.
“Congress must have access to the information we need to do our job effectively and efficiently,” he said in a statement, “and we urge the president to stop engaging in this unprecedented cover-up and start complying with the law.”
Consovoy did not respond to an email requesting a comment. But Trump denounced the ruling as “totally the wrong decision by obviously an Obama-appointed judge.” He also said was “crazy because if you look at it, this never happened to any other president.”
Democrats say their attempts to obtain Trump’s financial records were driven by the fact that he, unlike all previous modern presidents, has refused to disclose his tax returns and has declined to divest from his extensive business dealings, including with foreigners abroad, or to place his assets into a blind trust. And Michael Cohen, his former lawyer, has testified that he fraudulently inflated or deflated the value of the same assets in transactions, depending on what was expedient.
The Trump administration is making similar arguments about Congress lacking a legitimate legislative purpose to back its subpoena for battles related to information related to the investigation by special counsel Robert Mueller — including for McGahn’s testimony.
Since last month’s release of the 448-page redacted report by Mueller, Democrats have sought for McGahn to publicly give his account of Trump’s attempts to thwart investigators. While those conversations are laid out in the report, Democrats hope that hearing directly from McGahn in a televised hearing would help galvanize public opposition to Trump.
Because McGahn’s information relates to his former official duties, unlike Trump’s financial records, the White House also has two additional weapons to deploy against Congress.
The first, which it unleashed Monday, is to claim that the Constitution gives close personal aides to a president “absolute immunity” from congressional subpoenas trying to compel them to come testify about their official duties — even if, like McGahn, they no longer work for the president and forcing them to show up at the Capitol would not interfere with their ability to assist him.
Administrations of both parties have taken that position, and the Justice Department on Monday unveiled a new 15-page legal opinion from Steven Engel, head of the department’s Office of Legal Counsel, asserting that “Congress may not constitutionally compel the president’s senior advisers to testify about their official duties.”
‘Disdain for the law’
Pat Cipollone, the current White House counsel, sent the Judiciary Committee a letter saying that the president had directed McGahn not to appear, and invoking that rationale as justification.
Rep. Jerrold Nadler, D-N.Y., chairman of the House Judiciary Committee, denounced Trump’s move as “the latest act of obstruction from the White House that includes its blanket refusal to cooperate with this committee.”
“It is also the latest example of this administration’s disdain for law,” Nadler added.
McGahn’s lawyer, William Burck, said in a letter to the committee that he viewed the dispute as one between the White House and the committee, adding that he hoped the committee would decline to hold McGahn in contempt for obeying Trump and not showing up.
“It is our view that the committee’s dispute is not with Mr. McGahn but with the White House,” he wrote.
McGahn has already defied the committee’s subpoena once. The panel had also called for him to hand over documents that he shared with Mueller and that the committee said were relevant to its own inquiry into potential abuses of power. The White House similarly instructed McGahn not to comply.
Trump’s willingness to appeal the ruling in the financial records case underscores that he could attempt to drag out the legal process as long as he can, running out the clock before the 2020 election.
At a May 14 hearing, Consovoy had asked Mehta, were he to rule against Trump, to stay his ruling until an appeals court completed its review. But the judge declined.
While Consovoy is now likely to ask an appeals court to stay the ruling anyway, Mehta called the Trump arguments too thin to raise a “serious legal question” and said that delaying the subpoena further would unjustifiably interfere with the constitutional powers of Congress.
“The court is well aware that this case involves records concerning the private and business affairs of the president of the United States,” he wrote. “But on the question of whether to grant a stay pending appeal, the president is subject to the same legal standard as any other litigant that does not prevail.”