Donald Trump suffered his first loss in a series of fights with Congress over demands for records production, this time involving his private financial records. Federal judge Amit P. Mehta ordered accounting firm Mazars to comply with a House subpoena that demands several years of Trump’s business records, rejecting the argument that the subpoena served no legitimate legislative purpose. The constitutional authority to impeach carries the implication that Congress has a broad investigative authority when it comes to the executive branch, Mehta ruled:
In his decision, Mehta flatly rejected arguments from the president’s lawyers that the House Oversight Committee’s demands for the records from Trump’s accounting firm, Mazars USA, were overly broad and served no legitimate legislative function.
“It is simply not fathomable,” the judge wrote, “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.”
Mehta relied heavily on Watkins in crafting this decision, a strategy which seems clearly aimed at having this opinion survive on appeal. The quote above comes at the end of a lengthy consideration of the 1957 Supreme Court decision that limited congressional authority for investigations when it comes to private individuals. Mehta took care to rule that his decision fits well within that precedent, noting that presidents are not private individuals and that their private behavior before and during their tenure in office can be grounds for impeachment.
In the same paragraph, Mehta notes that Congress went unchallenged in its authority to open such investigations in two previous administrations:
Twice in the last 50 years Congress has investigated a sitting President for alleged law violations, before initiating impeachment proceedings. It did so in 1973 by establishing the Senate Select Committee on Presidential Campaign Activities, better known as the Watergate Committee, and then did so again in 1995 by establishing the Special Committee to Investigate Whitewater Development Corporation and Related Matters. See S. Res. 60 (93rd Cong., 1st Session) (Feb. 7, 1973) [hereinafter Watergate Res.]; see also S. Res. 120 (104th Cong., 1st Session) (May 17, 1995). The former investigation included within its scope potential corruption by President Nixon while in office, while the latter concerned alleged illegal misconduct by President Clinton before his time in office. Congress plainly views itself as having sweeping authority to investigate illegal conduct of a President, before and after taking office. This court is not prepared to roll back the tide of history.25
That’s an impressive argument, although perhaps not bulletproof. For one thing, the Supreme Court was never asked whether the Whitewater investigation exceeded Congress’ authority, and this court might take a very different view of that question. Second, there was already malfeasance exposed in Whitewater which prompted the investigation by Congress, whereas the Mazars subpoena is based on nothing more than investigative curiosity. Nonetheless, Mehta has made an appeal very tricky for Trump.
Presumably to no one’s great surprise, Trump was less than impressed with Mehta’s reasoning. He called the ruling “crazy” and accused Mehta of playing politics, noting who appointed Mehta to the bench:
Trump called the 41-page ruling from U.S. District Judge Amit P. Mehta of the District of Columbia “crazy” and said he would appeal, adding: “We think it’s totally the wrong decision by, obviously, an Obama-appointed judge.”
That’s not going to be a winning legal strategy on appeal, needless to say. Trump might hope that the courts will consolidate these fights and deal with them in their totality, at which point his attorneys can argue that Congress has set up a pattern of hostile investigations to cripple his authority as president. Allowing that to continue without limit will, as I argued last week, create a de facto parliamentary system and allow future congresses to stop constitutional governance through sabotage.
For now, this will go off to the DC Circuit Court of Appeals, where Jay Sekulow promises to aggressively pursue a reversal. He’d better hope that the appeal doesn’t draw the attention of another Obama appointee — Merrick Garland, who serves as chief judge there and who almost certainly won’t appreciate Trump’s characterization of the decision.
Update: It didn’t take long for Trump’s attorneys to file an appeal:
President Donald Trump’s attorneys are appealing a ruling by a federal judge ordering an accounting firm to turn over his financial records from before he was President to the Democratic-controlled House Oversight Committee.
The President’s attorneys have filed the notice of appeal Tuesday, less than a day after losing their case against the subpoena in DC District Court.
It’s almost as though they anticipated losing the challenge. Actually, Mehta had given enough hints to make the decision predictable, so Sekulow probably had the appeal written last week already.
Also, I called Merrick Garland an Obama appointee, which he was — to the Supreme Court, not his current position. Obama appointed him chief judge for the DC Circuit as well, but Bill Clinton appointed him to the DC Circuit originally.