Trump’s weak legal case could help him in clash with Congress
WASHINGTON — For all of President Donald Trump’s talk of winning, his lawyers are using a legal argument that many scholars say is a pretty sure loser as his team tries to defy congressional attempts to investigate him. Yet they may end up delaying the investigations with their argument, and that could be a win in itself.
In courts in New York and Washington, Mr. Trump is attempting to beat back subpoenas by Congress to get financial records from accountants and banks Trump and his family do business with. His argument is that congressional Democrats are out to get him and that they have no “legitimate legislative purpose” in seeking his personal records.
Congressional investigations are legitimate only if there is legislation that might result from them, the lawsuits say in identical terms. “There is no possible legislation at the end of this tunnel,” both lawsuits claim.
So far, a federal judge in Washington has seemed unimpressed with Mr. Trump’s attempt to prevent Mazars USA, an accountant for the president and Trump Organization, from turning over subpoenaed records to Congress. U.S. District Judge Amit Mehta held a hearing in the case Tuesday and could rule anytime on Mr. Trump’s request.
Separately, a hearing is scheduled for Wednesday in federal court in New York in a lawsuit Mr. Trump, his business and family have filed against Deutsche Bank and Capital One to prevent them from complying with subpoenas from the House Financial Services and intelligence panels for banking and financial records.
The court argument is part of a broader White House strategy to resist all congressional oversight following special counsel Robert Mueller’s investigation. “Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents,” White House counsel Pat Cipollone wrote in a letter to House members Wednesday .
On Friday, Treasury Secretary Steven Mnuchin said he won’t comply with a congressional subpoena for six years of Mr. Trump’s tax returns. He cited the absence of a “legitimate legislative purpose” as his reason.
The White House approach finds little support among scholars who say Congress’ authority to investigate is broad and that in the past century the Supreme Court has never found a problem with a congressional investigation for lack of legislative purpose. A 2017 report from the policy research arm of Congress found that “courts today generally will presume that there is a legislative purpose for an investigation.”
Charles Tiefer, who served as a lawyer for Congress for 15 years, said lawyers have given up on making the kind of argument Mr. Trump’s lawyers are making. Mr. Tiefer, now a University of Baltimore School of Law professor, described the argument as “one of those medieval notions that are not taken very seriously now.”
But even if judges in both cases rule against Mr. Trump, he won’t go down without a fight that might take months or even years of appeals to resolve. Ohio State law professor Peter M. Shane, who studies the separation of powers, described it as Mr. Trump’s lawyers “trying to run out the clock until the election.”
“Why should this misleading argument be any different from any other misleading argument?” Mr. Shane said, adding: “The reason they’re not making stronger arguments is because stronger arguments aren’t available to them.”