President Trump’s attempted destruction of America’s legal and constitutional order has now reached an unprecedented level, with a bold claim to “fight all the subpoenas” congressional Democrats issue, regardless of their legal merit.
That fight will likely result in several former Trump officials being found in contempt of Congress, unleashing lawsuits that will likely reach the Supreme Court. Yet it won’t make a difference what Trump says, because, as they did with the Muslim ban and the Census scandal, the court’s conservatives will simply ignore the president’s boasts and take his minions’ pretexts at face value.
It’s hard to keep track of all the alleged instances of lying, obstruction, and fraud that the House is trying to investigate. But there are, at present, four outstanding subpoenas that are being stonewalled.
First, the House Judiciary Committee has subpoenaed former White House Counsel Don McGahn to probe possible instances of obstruction of justice described in the Mueller report. (Trump allegedly told McGahn to fire the special counsel, then create a false record denying he ever did such a thing.) The New York Times reported Wednesday that White House lawyers have told McGahn not to comply.
Second, the House Committee on Oversight and Reform has subpoenaed John Gore, a Department of Justice official who supposedly asked Commerce Secretary Wilbur Ross to add a question about citizenship to the census in order to help DOJ enforce the Voting Rights Act.
According to documents unearthed in litigation, however, that letter was a sham. Ross actually requested that DOJ write the letter and had already decided to add the question—which is projected to cause 6.5 million people not to return their census forms in a boon for Republicans– at the behest of White House advisers Steve Bannon and Kris Kobach.
Gore also received an email advising him not “to say too much” about whether census data might be shared with other government agencies—which is illegal. Obviously, this is exactly the concern of immigrant families: that their answers to the citizenship question could trigger legal enforcement actions.
Both of those matters—the fake letter and the shocking email—are central to the Census scandal, but this week the Justice Department said Gore would not comply with the subpoena.
Third, the House Oversight Committee also subpoenaed former White House personnel security Carl Kline over Jared Kushner’s security clearance. (Trump personally demanded that he receive top secret clearance despite concerns about Kushner’s foreign ties, then lied about having done so). The White House has ordered Kline not to testify, and the committee chair, Elijah Cummings, has initiated contempt procedures against him.
Fourth, the House Oversight Committee issued a subpoena to one of Trump’s accounting firms, Mazars USA, to testify and turn over documents regarding Trump’s alleged inflation and deflation of his business asset values, which, if true, enabled Trump to cheat on his taxes to the tune of tens of millions of dollars. In response, Trump’s personal lawyers sued Rep. Elijah Cummings, the chair of the committee, to quash the subpoena.
That’s in addition to the House Ways and Means Committee’s request that the IRS turn over Trump’s tax returns themselves—not formally a subpoena, but a request issued pursuant to tax code rules. Treasury Secretary Steven Mnuchin has said he is reviewing the request, although his April 23 letter on the subject left no doubt that the request will be denied.
In all of these cases, Trump’s underlings have set forth supposed reasons for the refusals.
For McGahn, it’s executive privilege—even though the subpoena is about issues made public in the Mueller report, and thus no longer privileged.
For Gore, it’s because the House committee won’t let him have DOJ lawyers, as well as personal lawyers, in the room with him.
For Kline, it’s because the subpoena “unconstitutionally encroaches on fundamental executive branch interests,” according to a letter obtained by The Washington Post.
And for Trump’s tax documents, it’s that there’s no valid reason for the subpoena, and, per Mnuchin, it’s unlawful to disclose tax returns simply to expose the taxpayer.
But Trump, as is his wont, has been blunter. In a statement made outside the White House, Trump described the McGahn subpoena as “ridiculous.” He then continued, “we’re fighting all the subpoenas. These aren’t, like, impartial people. The Democrats are trying to win 2020.”
Now, in an ordinary world, that admission against interest (as it’s legally known) by the central figure in a cluster of controversies would be dispositive. Never mind the legal niceties: Trump has clearly said that his reason for fighting “all the subpoenas” is that he doesn’t believe the Democrats are sincere. He believes the subpoenas are political.
That’s fine, but it’s also not a legal argument. Whatever their motives, if Democrats are legally justified in conducting an investigation—surely true in the cases of McGahn and Kline, maybe so in the tax matters—then complying with congressional subpoenas is a legal obligation.
That justification is not unlimited, of course. It’s settled law that Congress must make a good-faith effort to accommodate the needs of the executive branch. (Among other things, that probably means DOJ gets their lawyer in the room with Gore.) These questions will be litigated in the lawsuits sure to follow declarations of contempt of Congress for failing to testify or turn over documents.
But when the president of the United States says that he’s fighting all the subpoenas because the Democrats are just playing politics, that ought to undermine the subtle legal arguments of his subordinates.
Except for the fact that the Supreme Court under Chief Justice John Roberts has shown itself to be inclined to take the Trump administration at its word, whatever Trump himself may say.
The most infamous example of this was Trump v. Hawaii, the case over the “travel ban.” Even though Trump had said numerous times that he wanted to ban Muslims from coming to America, even though he described the final version of the ban as merely “watered down” from the original, Roberts and the court’s conservatives set those statements aside, focusing instead on the security rationales proffered by the administration.
Pay no attention to the orange man behind the curtain, Chief Justice Roberts said, the great and powerful Department of Homeland Security bureaucrats have spoken.
Chief Roberts took the same approach to the census citizenship question this week. Even though there are smoking guns all over the place—emails from Ross and Gore, notes from Bannon and Kobach—Roberts focused in oral arguments on the proffered rationale that citizenship data is relevant to Voting Rights Act enforcement. (In yet another irony, Roberts and the Trump administration have both eviscerated the VRA in the past, yet here regard it as an urgent national priority.)
If this pattern holds, it’s easy to see the Supreme Court—if the subpoena challenges make it all the way there—again disregarding Trump’s blatant statements in favor of the legalistic rationales cooked up by others.
Lawyers used to joke that Trump was the worst client in the world, because he just can’t resist blurting out incriminating statements and making matters worse for himself.
Fortunately for him, however, Chief Justice Roberts just plugs his ears.