Trump moves to resist House inquiries, setting up fight over congressional subpoena powers
President Trump’s attorneys and the White House are moving to resist a growing number of congressional requests for information, increasing the likelihood of a protracted legal fight that could test the power of congressional subpoenas.
The building battle will shape how much material House Democrats will be able to obtain about Trump’s policies and personal finances through multiple investigations launched by various congressional committees.
White House officials are already digging in their heels on a slew of requests related to Trump’s actions as president. The administration does not plan to turn over information being sought about how particular individuals received their security clearances, Trump’s meetings with foreign leaders and other topics that they plan to argue are subject to executive privilege, according to several aides familiar with internal discussions.
White House Counsel Pat Cipollone and the president’s legal team are preparing for an extensive legal battle, if necessary, over subpoenas from Congress, aides said.
On Monday, Trump’s private attorneys warned his accounting firm not to comply with a subpoena from the House Oversight and Reform Committee. Separately, two other House committees issued subpoenas to several banks Monday for information about Trump’s finances — drastically ratcheting up the stakes for the president, who is particularly angry about efforts to pry into his business, aides said.
Rudolph W. Giuliani, one of Trump’s attorneys, said he has urged the president not to cooperate with congressional Democrats’ requests because, he argues, they ultimately want to impeach him. “I wouldn’t cooperate with any of them,” he said. “I’d fight it tooth and nail.”
House Democrats said Tuesday that they are resolute about issuing subpoenas where necessary and pursuing them to the full extent of the law. They said they have little confidence that the Justice Department under Attorney General William P. Barr will enforce contempt actions if their demands are flouted, but they believe subpoenas can be enforced through civil litigation.
“The Trump administration for some reason feels that the subpoena power that’s wielded by Congress is weak and that courts will side with the Trump administration in any kind of dispute about the validity of using that power to produce documents,” said Rep. Raja Krishnamoorthi (D-Ill.), a member of the House Oversight and Intelligence committees. “That kind of overconfidence might be very wrong.”
However, the resulting legal battles could be extensive, expensive and unpredictable, based on past litigation over congressional subpoenas.
“This is clearly going to take time to resolve — the question is how long,” said Mark Gitenstein, who served as chief counsel to the Senate Judiciary Committee in the 1980s.
Going to court over and over again to fight to enforce lawmakers’ demands will take resources and, critically, precious time that Congress may not have. Congressional subpoenas — and any criminal contempt proceedings that may follow — expire at the end of a congressional session, which could make matters moot after the 2020 election.
“Undoubtedly, it will be in the legislative interest to request expedited action by the courts,” said Rep. Jamie B. Raskin (D-Md.). “Here, justice delayed is democracy denied.”
House Democratic legal advisers have been poring over past congressional subpoena litigation as a guide as they map out their strategy.
One key test came in 2007, when a House panel sought information from then-White House counsel Harriet Miers about President George W. Bush’s efforts to fire U.S. attorneys. The White House objected to her providing information, citing executive privilege, and it was two years before she was required to testify.
During Barack Obama’s presidency, then-Attorney General Eric H. Holder Jr. faced a subpoena and a contempt resolution from the House Oversight Committee, which was seeking information about a controversial border law enforcement program called “Fast and Furious.” The effort to secure information from Holder began in 2011 but was not resolved until 2016, long after he left office.
The Senate Permanent Subcommittee on Investigations got faster results in 2015 when it sought information from the company Backpage.com as part of a human-trafficking investigation. The Senate investigators won in court and were able to compel the production of information in about 13 months.
House Democrats believe that their demands for information from the president’s banks and accounting firms could move much faster.
On Monday, the Intelligence and Financial Services committees subpoenaed Deutsche Bank, JPMorgan Chase, Bank of America and Citigroup, seeking information about Trump’s business ventures.
Separately, the House Oversight Committee issued a subpoena late Monday to Mazars USA, Trump’s accounting firm, for all financial information the firm has prepared or reviewed for the president’s company and foundation.
William Consovoy and Stefan Passantino, attorneys for the president and his company, wrote in a letter to Mazars USA on Monday that a subpoena from the Oversight Committee “would have no legitimate legislative purpose” and requested that the firm provide them with 10 days’ notice of its actions “so that we may take appropriate legal steps to protect our clients’ rights.”
Rep. Elijah E. Cummings (D-Md.), chairman of the Oversight Committee, called the letter “the latest attempt by the President and his companies to throw the kitchen sink at Congress to prevent us from obtaining critical information as part of our constitutional oversight responsibilities.”
“But unlike the President, these outside entities understand that congressional subpoenas are mandatory, and they understand their legal obligation to comply with the law rather than obstruct it,” he added.
Rep. Jim Jordan (Ohio), the ranking Republican on the committee, accused Cummings of using the panel’s “limited resources to attack President Trump for political gain.”
For its part, Mazars USA said in a statement that it “will respect the legal process and fully comply with its legal obligations.”
Deutsche Bank said in a statement that it is “engaged in a productive dialogue” with the House committees. “We remain committed to providing appropriate information to all authorized investigations in a manner consistent with our legal obligations,” the bank said.
The other financial institutions declined to comment.
The Trump Organization declined to comment. But a person close to the company on Tuesday called the subpoenas for the president’s financial information “a new low” and said they set “a dangerous precedent.”
House lawyers are confident that any executive-privilege claim Trump’s lawyers might try to assert over the financial records would be inapplicable and that the banks will not be cowed from providing Congress with records.
A senior Democratic aide, speaking on the condition of anonymity to describe internal strategy, said Democrats expected it would be “weeks, not months” before Deutsche Bank turned over the requested materials.
“We don’t foresee any issue with them responding appropriately to our lawful and legitimate subpoena,” said the aide. “I would be very surprised if any bank did not comply with a lawfully authorized subpoena from a congressional committee.”
Two former House counsels said House Democrats have a good shot at winning since they could cut Trump’s lawyers out of the equation entirely.
Charles Tiefer, who served as deputy House counsel in the 1990s and now teaches at the University of Baltimore School of Law, said Trump’s lawyers would have to sue the financial institutions to keep them from complying with Congress’s subpoena for Trump’s information. But even then, he was not sure what their argument would be for squashing such a demand.
Some legal experts suggested that a judge could knock down the subpoena because it relates to a private matter, not broader government oversight. But Kerry W. Kircher, who served as House counsel for the Republican majority from 2011 to 2016, said he was not sure such an argument would hold up.
“That’s a tall order. Congress’s oversight powers are pretty sweeping and pretty extensive,” he said. “You can try that; I think that’s a loser.”
The Democrats’ strategy to try to compel the production of information has developed over the past several months in close consultation with House Speaker Nancy Pelosi (D-Calif.), according to people familiar with the plan. Each panel has been urged to develop a clear legal predicate for its inquiry and give the administration and related entities multiple chances to comply with their requests.
All of the House’s requests for information are overshadowed by what one lawyer called “the big kahuna”: the request by the House Judiciary Committee for access to the unredacted report by special counsel Robert S. Mueller III, an effort that drew participation from the chairs of half a dozen House committees.
The slew of demands from the House committees has infuriated Trump, who has told aides that he does not want to cooperate with the inquiries, according to people familiar with his thinking.
He is particularly angry about the efforts by the Ways and Means Committee to obtain his tax returns, telling aides he will fight that demand all the way to the Supreme Court and adding that, by then, the 2020 election will be over.
“You’re never going to see his tax returns,” Anthony Scaramucci, a former White House official and Trump adviser, said on MSNBC on Tuesday. “He’s not going to release them.”
The White House also plans to hold back information being sought about how particular individuals received their security clearances, and will reject requests for notes on the president’s meetings and phone calls with foreign leaders, senior adviser Jared Kushner’s interactions with foreign leaders, and the president’s conversations with Cabinet members about initiatives, among other topics, according to the people with knowledge of his thinking.
Cabinet agencies have been told to seek White House permission before giving any documents to Congress, and lawyers in the counsel’s office are closely monitoring the requests, aides said.
The White House declined to comment.
House Democrats who have been bracing for a legal battle with the administration said Trump’s stonewalling was maddening.
“They are fighting us on everything now. They’re fighting us on release of the uncensored Mueller report, they’re fighting us on the president’s taxes . . . they basically have decided that they want to thwart congressional oversight power,” said Raskin. “It’s an assault on the separation of powers and specifically the congressional oversight function.”
Authors: Tom Hamburger, Karoun Demirjian, Josh Dawsey, Rachael Bade
Contributors: David A. Fahrenthold and Renae Merle
PC: Adam Betcher/Getty Images