Presidential Chutzpah: Trump’s Subpoena Battles
Trump declared that his administration will fight every House Democrat subpoena.
The first showdown came yesterday in the courtroom of D.C. federal judge Amit Mehta.
The subpoena was for 8 years of Trump’s financial records from the Mazars accounting firm.
Trump sued Mazars to stop them from complying with the subpoena. Judge Amit Mehta expedited the case (ordinarily these things take a long time).
Trump’s lawyers filed a motion to delay arguments. Specifically they said that the “short notice” would undermine Trump’s constitutional due process rights. They wanted the hearing canceled or moved to a later date.
This of course ignited speculation that Trump knew he’d lose and just planned to tie this all up in the courts until after 2020.
The judge rejected the motion to delay or cancel the hearing, and heard the arguments yesterday.
Trump’s lawyers argued that the subpoena was “not a valid exercise of legislative power.” Their argument was that Congress makes the laws, and the Executive branch enforces them; this is a law enforcement matter, so it belongs to the Executive branch.
Recall that Attorney General Barr’s 4-part argument in his Senate testimony for why Trump cannot be indicted for obstruction of justice went like this:
- Trump is head of the executive branch;
- Trump therefore has “constitutional” control over the executive branch;
- If Trump believes an investigation is based on false claims, he can shut it down out of concern for the effect the “false accusations” might have on his administration;
- Trump even has the power to shut down investigations into himself.
Recall also that DOJ regulations say that a sitting president can’t be indicted.
Consider the audacity of this. First, the Attorney General argues in the Senate that Trump has complete control over the Executive branch, including the power to shut down investigations into his own conduct.
Then his lawyers waltz into a federal court in the oldest democracy on earth and argue that Congress has no business investigating the president; that should be left to the Executive branch.
That’s pure chutzpah (not to mention an autocratic power grab).
The claim that the U.S. is the oldest democracy on earth was rated true by Politifact, even though in 1776, the US had slavery and only white men could vote. Politifact concluded this:
This is important while we consider whether American democratic government will survive Trump’s onslaught. Harvard Prof. Daniel Ziblatt says that the older and more established a democracy, the better chance it has of surviving Trump.
People compare Trump to the rise of Hitler. But when Hitler seized power, Germany had been democratic for a very short time (since the end of World War I). The institutions were not firmly in place. As far back as people could remember, they’d lived under kings and emperors.
Americans know how to get out from under tyranny and strengthen democracy (or establish democracy, depending on your viewpoint). Women did it, led by activists like Susan B. Anthony and others. African Americans did it, led by activists like Thurgood Marshall and others.
When America was founded, it was a democracy for white men only. We changed that, so we know how. (That’s why I’m volunteering and why I keep telling everyone to get busy.) Also we have centuries of Supreme Court precedent and traditions.
Everything in this tweet is true:
The problem is people can misread a tweet like that and think we’re already Russia. We’re tipping that way. We’re not there yet. The distinction is important: If we’re already there, there’s nothing we can do without risking our lives.
Remember: a goal of Putin’s Active Measures is to get people to lose faith in democratic systems. Because when enough people lose faith (despair and give up) it’s all over.
And it’s not all over. Just look at how Judge Mehta reacted to Trump’s lawyers’ arguments yesterday.
The judge (clearly skeptical) asked Trump’s lawyers if they believed Congress can’t investigate if the president illegally failed to report his finances or was involved in a corrupt enterprise. They said yes: Only the DOJ can investigate.
Is this going to fly? No, of course not. Federal judges can’t be fired so they don’t have to worry about making Trump angry and can do what they think is right. (That doesn’t mean they always do what’s right. There have been some pretty terrible federal court decisions.)
This particular judge appeared not inclined to rule for Trump. Judge Mehta pointed out that there isn’t a single Supreme Court case or appellate case since 1880 that found a congressional subpoena overstepped its bounds.
Will Trump appeal if he loses? Certainly.
Will the Supreme Court hear the case? I doubt it. The law governing Congressional subpoenas is settled.
For people who jump in and say, “But SCOTUS is on Trump’s side!” I’ve given 2 reasons the Court will not create an autocracy.
The first reason is a cynical one: Why would they give up all their power and make themselves vulnerable to Trump’s attacks? What, for example, would stop Trump from ordering a justice killed and then shutting down the investigation and pardoning the criminal?
The real reason Supreme Court Justices won’t side with Trump: They do, in fact, want to preserve our Constitution. A few of them might want to take the country back to 1789 when white men did as they pleased—but even then, the president didn’t have unlimited powers.
The far right wing is supporting autocracy to wrest the country back from “the myth of deranged diversity.”
That means taking America back to a bygone era when white men did as they pleased—not all the way back to King George.
May 15, 2019