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Legal Analysis

Top 5 Ways Democratic Control of the House Poses ‘Significant’ Legal Problems for Trump

Whither the Blue Wave and its shade?

Whether Carolina or cobalt, the Democratic Party is hoping to retake the House of Representatives by something above middling margins (or more) come Tuesday night.

As CNN legal analyst and attorney Ross Garber noted, Democratic gains in the House would mean they gain subpoena authority and the “ability to control  Congressional investigations of Trump.”

In an interview with Foreign Policy, Rep. Eric Swalwell (D-Calif.) was quite open about what House Democrats would seek to do with such control. Asked what Democrats would investigate if they “take over Congress and control of the House Intelligence Committee,” Swalwell replied, that the first thing on the agenda would be to “fill in the gaps that exist between what we wanted to pursue in the Russia investigation and what the Republicans allowed us to pursue, which was almost zero when it came to using subpoena power to get documents, bank records, cell-phone records, travel logs, etc.”

“There are a lot of gaps to fill in there,” he said.

With that in mind, here’s how this could affect President Donald Trump and his administration in legal terms.

1. The tax returns are coming.

This is pretty straightforward. A provision of the Internal Revenue Code provides that the chair of the House Ways and Means Committee is authorized to request any American’s tax returns from the IRS in order to conduct an investigation. Treasury Secretary Steve Mnuchin has announced he will comply with any such requests and Fox News Channel’s Andrew Napolitano was sanguine about the prospect. He said:

Yes, they can. Will they get them? Yes, they will. Doesn’t mean they will make them public–but they can look at them and draw conclusions, and then ask witnesses like his former lawyer, Michael Cohen, and his present and former accountants, questions about them.

Okay, so Democrats get the tax returns. Then what? Why does that matter? Answer: the Emoluments Clause. While long-dismissed as the fantasy of quixotic liberal detractors, if an investigation finds that Trump has received money from foreign heads of state–in violation of the Constitution–then all bets are off.

2. Spotlight on Trump’s Anti-Immigrant Crusade

Stephen Miller is the anti-immigrant administration apparatchik widely-considered to be the architect behind some of the Trump administration’s most xenophobic policies–including the Muslim ban. Miller also reportedly lives in an apartment complex built in accordance with Islamic sharia law.

Over the past two years, Trump has repeatedly turned to Miller for advice on enacting his “America First” agenda. Some Democrats say this program is explicitly white nationalist in orientation and have pledged to put a stop to the administration’s hard-line anti-immigrant policies. Rep. Jimmy Gomez (D-Calif.) gamed out the possibilities in an op-ed for NBC News. He wrote:

A Democratic takeover in the House will finally give my colleagues and me the ability to leverage the Oversight Committee’s investigatory power, putting a bright hot spotlight on Miller’s crusade against immigrant communities. We’ll be able to determine how and why decisions are made, as well as the players behind them. More importantly, it’ll give us a fighting chance to push back against the hatred and xenophobia that defines Miller’s policies and those of this administration.

3. Kavanaugh won’t call it a comeback.

Remember when Brett Kavanaugh was accused of sexual assault and then sworn in to the nation’s high court? Democrats certainly do. Not only has the so-called “Kavanaugh effect” ignited Democratic voters to record-levels of midterm engagement, House Democrats are convinced the newly-minted Justice lied his way onto the Supreme Court. Longtime legal observers have noted that lying under oath isn’t exactly a recent allegation leveled against Kavanaugh. Democrats in the Senate have long been convinced that Justice Kavanaugh has a problem with the truth.

The Democratic Party’s emboldened base is convinced that Kavanaugh’s confirmation hearings were plagued by lies. Democrats and progressives took a look at the brevity of an FBI investigation, plus Trump’s involvement in the whole affair, and concluded this, too, was a thinly-veiled sham. The wild card here is whether Democrats are keen on rewarding their base’s anger–while history suggests not, Nancy Pelosi said, hey, impeachment could happen.

4. Robert Mueller Redux.

Special counsel Robert Mueller has been having quite a successful time getting smaller fish to roll on larger ones. This is true. And without expressing any sort of opinion on the necessity of doubling up on Mueller’s work, expect Democrats to do exactly that. Again, here’s Fox News’s Napolitano discussing the upshot with journalist Shepard Smith:

Smith: Reportedly there have been 87 communications between members of Team Trump–campaign Team Trump–and Russians. That would be up for grabs as well?

Napolitano: Yes. I would think it absolutely would. And Paul Manafort, who does not have a Fifth Amendment right any longer because he’s already pleaded guilty will be their star witness, as will Rick Gates, as will the president’s former lawyer Michael Cohen, as will his former confidante Roger Stone.

Just like Mueller, however, Democrats likely have their eyes set on good old fashioned graft and corruption. Already, House Democrats have attempted to look into fraud, waste and abuse but were repeatedly shut down by Congressional Republicans on the Hill. Those investigations are definitely on the menu in the event of a Democratic win.

5. Subpoenas and More Subpoenas.

One thing about subpoenas is you actually have to comply with them. Another thing about them is that Congress isn’t particularly restrained in what they can look into. Recall: a nigh-endless series of investigations into Benghazi. While the Benghazi tree of inquiry never bore any legal fruit whatsoever, the distractions it provided kept cable news channels in furs.

Expect something along those lines if and when the Democrats get the gavels — except there may be with a bit more potential for their investigations to reveal crimes. House Democrats have a commendable track record here. From Watergate to Iran-Contra to the myriad scandals and investigations plaguing the George W. Bush administration, when Democrats have been in charge they have tended to get quite a few indictments and criminal convictions.

Aside from a slew of potential sentencing memos, subpoenas will likely serves as Democrats’ “bodies on the gears” of the Trump White House itself. Neil Eggleston previously served as White House counsel for both Clinton and Obama. In comments to the Axios blog, he described how this might work:

Subpoenas flowing into a White House create paralysis. The whole system stops while everyone tries to comply with subpoenas and prepare to testify.

[MANDEL NGAN/AFP/Getty Images]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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