Terry H. Schwadron
July 15, 2019
Reporters at a court hearing this last week on one of the myriad cases filed to make information about Donald Trump public did us a favor: Apart from reflecting the news of this case, they showed us the extent to which this president is going off the deep end to shut out any public questioning.
The setting was an appeals court hearing the case of whether the House Oversight Committee can subpoena records from a accounting firm handling Trump finances.
What they heard from William Consovoy, Trump’s personal lawyer, is that Congress — the public — has almost no right to investigate or regulate Trump’s conduct.
For those of us concerned about our numbing slide into autocracy, the report felt like blaring trumpets.
In a hearing that lasted more than double the allotted one hour, Consovoy told the court that there is almost no legislation Congress could constitutionally pass to rein in any unethical behavior by the President. Because of that, Consovoy argued, there were no legitimate legislative reasons for the Oversight Committee to subpoena Trump’s accounting firm for his finances.
According to Talking Memo.com, the judges at times appeared surprised by how extreme Consovoy’s theory was. They offered some snippets from judicial questions:
“Imagine, in the future, you have the most corrupt president in humankind, openly flaunting it, what law could Congress pass?” Judge Patricia Millett asked.
Consovoy: it was “very hard to think of one.”
The appeal here was of a Trump lawsuit against the accounting firm Mazars to keep it from complying with a subpoena for Trump family and business financial records. The House Oversight Committee has intervened in the case to defend the subpoena, and a district judge already rejected the President’s arguments.
House Democrats believe that they well may have some legislation in mind, but argue that even if the do not having specific legislation pending, they have a Constitutional duty to pursue oversight of government behavior.
In this case, the committee has serious questions about Trump’s finances and whether he is, for example, beholden in some way to Russian or overseas lenders, information to help inform questions about why the administration seems so bent on supporting policies that may favor Russians.
Consovoy insisted that Congressional demands were groundless, and challenged whether Congress might be able to pass a law based on what it learned of Trump’s finances. He said that even if Congress could, the House’s claims that it’s looking at potential legislation were not to be trusted.
“I take it your theory is that he’s absolutely immune to any oversight? Is that right?” Judge Millet asked Consovoy, who would only offer the Presidential Records Act as an example of whether Congress could regulate the President.
“Is that it?” she asked, her voice raised, as Consovoy struggled to offer another example of where Congress could address the President’s conduct.
“I don’t want a litany! I want an example,” Millet demanded.
Talking Memo reported that throughout the hearing, Millett and Judge David Tatel, floated several different types of laws that could be inspired by a probe into a President’s finances. What about new financial disclosure law? It would be unconstitutional, Consovoy claimed. They pointed to the ethics-in-politics legislation the House has already passed, and Consovoy said that measure raised constitutional issues, too. “When it comes to [presidential] conflict of interest, [is there] nothing Congress can do?” Millett asked. Tatel asked about the constitutionality of a law that strengthened the enforcement ability of the Office of Ethics, perhaps with more funding; Consovoy would only say that was a harder question.
In essence, Consovoy argued that that in assessing the legality of the House’s subpoena, the court was required to assess the legality of any potential legislation that could arise from the lawmakers’ investigation.
The judges brought up Congress’ authority to investigate the executive branch’s compliance with the law. Consovoy claimed that the office of the President is not part of the executive branch in that way. He said that Congress could investigate corruption with regards to an agency, but not with regards to the President.
It’s not the first time that Consovoy has argued this philosophy.
In the earlier trial, Consovoy told a federal judge that Congress was powerless to hold the president’s feet to the fire, and that the Watergate and Whitewater hearings exemplified congressional overreach. As for a House committee’s subpoena to Trump’s accountants, Rep. Elijah Cummings and all those damn Democrats might as well pound sand. The Oval Office was out of bounds for congressional oversight — even in the face of presidential corruption.
This argument holds that Congress is barred from investigating the president because that is a proper function of law enforcement, not Congress, and in turn, law enforcement may not investigate President Trump because he is immune from prosecution.
The Trump legal playbook leaves us with the obvious conclusion that Trump and family are above the law.
That cannot stand.