Opinion

Trump Appeals Ruling Over Congressional Subpoena. His Brief Is a Disaster.

President Donald Trump’s legal team appears to be having trouble course-correcting in its battle over congressional subpoenas of Trump’s financial records. Instead of revamping their legal arguments to include something that might actually convince a judge, Team Trump keeps hammering away with the same losing argument: Congress can’t have the president’s records because only the president’s own people are allowed to investigate him. Trump’s lawyers aren’t just doubling-down on their “Congress lacks authority” argument either – they’re throwing in some threats just to keep things lively.

Trump’s brief to the D.C. Circuit, filed Monday, lays out the primary argument against the congressional subpoenas: by gathering Trump’s records, Congress is illegally encroaching on the executive branch’s turf.  The power to investigate, Trump argues, belongs only to the executive, and Congress should stay in the land of legislation and leave the president and his financial documents alone.

Legal Twitter is doing its part to call out the multiple face-palming aspects of the president’s brief.

  1. So much winning.

U.S. District Judge for the District of D.C. Amit Mehta flatly rejected Trump’s attempt to block a subpoena in this case on grounds that Congress isn’t allowed to investigate unless it is impeaching:

It is simply not fathomable that a Constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct — past or present — even without formally opening an impeachment inquiry.

A few days later, U.S. District Judge for the Southern District of New York Edgardo Ramos issued a mirror-image ruling in a parallel case. And yet, Trump’s people are still peddling this, “Congress can only legislate” argument.

While an appellate court certainly could rule differently, things really don’t look good for Trump. Two federal judges have found that Congress has the authority to issue these subpoenas, and simply repeating that they disagree isn’t likely to work in Trump’s favor. Points for consistency, though.

  1. Impeachment is a dirty, filthy, disgusting word.

Trump’s presidency has been dogged by talk of impeachment. Putting aside the questions of whether animpeachment is warranted, would succeed in ousting Trump, or would be good for the country, Congress obviously has the power to impeach. In Trump’s brief, he attempts to distinguish impeachment proceedings from Congress’s present inquiry into his finances. The resulting mess is an argument that practically begs for impeachment as a solution to the Legislative-Executive turf battle Trump keeps handing the court.

Although a hypothetical impeachment wasn’t the primary focus of either the Mazars or Deutsche Bank ruling, Trump’s people seem determined to bring impeachment front and center. Perhaps not the best idea.

  1. Here’s looking at you, Brett Kavanaugh.

In a so-Trump-it’s-practically-cliché move, the president’s lawyers included an absurdly unsubtle threat in their brief. They argued that if Congress can get its hands on the president’s financial records, it can also get the records of judges.

Like parading Vincenzo Pentangeli into the hearing room, Trump made his point to the bench: come after me, and you guys won’t be safe either. It didn’t go unnoticed how the thug tactics might affect Trump-appointee Brett Kavanaugh, who made headlines last fall over his questionable finances.

Oral arguments in Trump v. Mazars is scheduled for July 12. As is typical practice, we expect Trump’s oral arguments to mirror what’s already contained in his brief — even if those arguments appear destined to fail miserably.

[Images via Mark Wilson/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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