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Supreme Court could reshape congressional subpoena power in Trump case

The case is a microcosm of the rancorous partisan divide in Washington

President Donald Trump and House Democrats don’t agree on much these days, but both sides will tell the Supreme Court during oral arguments Tuesday that the fate of four committee subpoenas could redraw the limits of congressional investigative power.

Trump’s personal lawyers and the Justice Department have warned the justices that Congress needs to be stopped. They say lower court rulings that allow the House to demand Trump’s personal and business financial information from an auditing firm and two banks will open up a new political weapon for Congress to harass a president and keep him from doing his job.

“This would grant Congress easy access to, among other things, the President’s financial, legal, medical, and educational records,” Trump’s lawyers wrote. “Given the temptation to investigate the personal lives of political rivals, legislative subpoenas targeting the private affairs of presidents will become routine in times of divided government.”

[House faces historic test of congressional subpoena power]

But the House and former members have warned the Supreme Court that Trump and the DOJ are asserting a new power to thwart congressional probes, which have long been a way to legislate, appropriate funds and secure the nation.

“They have often done so by focusing on specific individuals, including sitting Presidents and their families, and by collecting personal financial information,” the House wrote in a brief.

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The oral arguments, which will be conducted remotely over the telephone because of the COVID-19 pandemic, mean the high court will step into a case that is a microcosm of the rancorous partisan divide in Washington when it comes to oversight of Trump’s presidency.

Subpoenas at issue

Trump’s personal legal challenges in New York and Washington have already for more than a year frustrated congressional oversight through the four subpoenas, which tour some of the most contentious parts of Trump’s financial opacity.

The whole time, Trump has not prevailed in any of the lower court rulings that led to this Supreme Court challenge.

In April 2019, the House Oversight and Reform Committee issued a subpoena to Mazars USA, the accounting firm for Trump and several of his business entities, for eight years of accounting and other financial information from both before and after he took office.

The House says the probe relates to three areas: Concerns about Trump’s business interests in the federal Old Post Office Building for the Trump International Hotel in Washington; the adequacy of Trump’s financial disclosures because of the omission of $130,000 paid by the president’s former personal lawyer, Michael Cohen, to adult film star Stormy Daniels; and testimony from Cohen that Trump inflated and deflated real estate values to reduce his tax burden.

The House points out that a House-passed bill would strengthen existing ethics laws with more disclosure and prohibit contracts between the government and the president — and points to other similar proposed legislation.

Also in April 2019, the House Financial Services and Intelligence committees issued three subpoenas to Capital One and Deutsche Bank for records related to Trump and his family members, part of an industrywide investigation into financial institutions’ compliance with banking laws, the House told the Supreme Court.

The Financial Services Committee pointed to reports of links between the banks, money laundering enforcement, loans to Trump and Trump businesses, and “questions regarding Deutsche Bank’s suspicious or high-risk transactions involving Russia, President Trump, or both.”

Two of the subpoenas are identical and ask for information about seven business entities and the personal accounts of Trump, Donald Trump Jr., Eric Trump and Ivanka Trump.

The Intelligence Committee says it is part of an investigation into efforts by Russia and other foreign entities to influence the U.S. political process during and since the 2016 presidential election.

Legit legislative purpose

The House points out that it passed bills on the topic of money laundering, and another bill to require the director of national intelligence to report to Congress about the financial holdings of Russian President Vladimir Putin and top Kremlin-connected oligarchs.

But Trump’s attorneys say the House lacks a legitimate legislative purpose for obtaining the records. They point to those events, public statements from Speaker Nancy Pelosi and other members of Congress and the details of the subpoenas to argue that the real purpose is to find out if the president broke the law.

“These Committees are not legislating; they are avowedly engaging in law enforcement,” Trump’s lawyers told the Supreme Court in a brief. “All of them — to one degree or another — have acknowledged that the purpose of the investigations is to determine whether the President engaged in wrongdoing.”

And Trump’s attorneys argue that using Trump and his family as a case study for broader legislative overhauls is a blatant effort to “expose for the sake of exposure” and is not relevant.

“These subpoenas are no more valid than would be demands for the President’s medical records so Congress may consider healthcare reform,” the Trump lawyers said of the bank subpoenas.

The Justice Department proposes that federal courts should scrutinize “with care” whether Congress has a legitimate purpose when seeking information against the president, and that information should be “demonstrably critical to the legitimate legislative purpose.”

“A congressional committee cannot evade those heightened requirements merely by directing the subpoenas to third-party custodians,” the DOJ wrote in a brief.

Such subpoenas pose “a serious risk of harassing the President and distracting him from his constitutional duties,” the DOJ argues.

The House counters that nothing in the text of the Constitution or previous Supreme Court rulings supports either of those arguments, and it pointed to eight times Congress has obtained records about a president.

That includes subpoenas to at least one accountant of President Bill Clinton during the Whitewater investigation beginning in 1995, as well as Hillary Clinton’s law firm billing records. The investigation also examined decades of the Clintons’ tax returns and obtained personal financial statements and held hearings on their bank loans, the House lawyers wrote.

“In 230 years, this Court has never invalidated a Congressional subpoena that was part of an ongoing Congressional inquiry,” House lawyers wrote. Trump’s lawyers and the DOJ “give this Court no valid reason to do so for the first time here.”

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