President Donald Trump’s “we’re-fighting-all-the-subpoenas” strategy threatens to stall congressional oversight with protracted legal fights, but House Democrats have options to try to avoid those delays and pry loose information.
Lawmakers need to push judges for quick action, legal experts say. They can also press forward with subpoenas that seek testimony from witnesses who aren’t in the government, putting them outside of Trump’s executive privilege reach. Forcing the Trump administration to go to court to try to stop their efforts can also work to their advantage if the courts allow the requests to stand while the legal process churns forward.
If the first major legal showdown is any indication, House lawyers might not even have to ask. On May 9, unprompted by Congress, a federal judge in Washington streamlined consideration of Trump’s lawsuit to block an accounting firm from supplying years of his financial records to the House Oversight and Reform Committee.
On the sole question before the court — whether the committee’s subpoena to Mazars USA was a valid exercise of legislative power — “the court can discern no benefit from an additional round of legal arguments,” U.S. District Court Judge Amit Mehta wrote in a two-page order.
“Nor is there an obvious need to delay ruling on the merits to allow for development of the factual record,” Mehta wrote.
His decision transformed what was supposed to be just a May 14 hearing into the whole enchilada — skipping the need for other motions and deadlines that could have drawn out the case for weeks or months longer and opening the door for lawmakers to get the information ahead of the 2020 election.
While House Democrats said in a court filing Monday that they had no problem with Mehta’s move, Trump’s lawyer objected. The quick schedule would harm Trump’s due process rights, the lawyer said in a filing Monday, and would do a disservice by “ensuring this unprecedented constitutional dispute between the president and Congress is decided” without a full court process.
A rapid ruling at the district court level doesn’t necessarily mean the case will be over quickly, since both sides are likely to push their argument all the way to the Supreme Court if needed. Appeals courts can work fast, but they sometimes take their time.
“Ultimately the court determines the schedule,” said Neil Eggleston, a partner at Kirkland & Ellis and a White House counsel in the Obama administration.
Flashback: ‘We’re fighting all the subpoenas,’ Trump says
Eggleston co-wrote an op-ed in The New York Times encouraging judges to quickly hear cases about congressional oversight of Trump, “given the obvious stakes” for the presidential campaign.
Rudy Giuliani, Trump’s personal attorney, argued after Trump filed the Mazars lawsuit that the congressional investigations have no legitimate governmental purpose and were a political attack on the president.
The administration had cooperated with the investigation by special counsel Robert S. Mueller III, Giuliani said, adding, “Enough is enough.”
Whether the subpoena is a valid use of legislative authority — the question in the Mazars case — is a very limited issue that courts could handle quickly, Eggleston said.
“That can be teed up with one side gets five days to brief it, the other side gets three days to respond and then there’s an argument. This is not hard stuff,” Eggleston said.
The administration’s blanket delay strategy could also backfire in the courthouse. It is “kind of thumbing their nose at the courts,” former North Carolina Democratic Rep. Brad Miller said, because it suggests the courts are “too inept” to move fast enough for judges’ decisions to matter for the 2020 election.
That might offend the judges, and if the administration’s arguments “are flimsy, as they have been so far, then Congress, the House should be able to get a fairly quick decision,” said Miller, now at Guttman, Buschner & Brooks law firm. “There are legal procedures that allow for pretty quick resolution when the law and the facts are really one sided, as this appears to be.”
Brianne Gorod, chief counsel at the Constitutional Accountability Center, said the House can also show “good cause” to get faster court proceedings. A motion to enforce one subpoena could be bolstered by identifying other Trump administration obstruction efforts to block oversight more broadly, such as refusing to turn over Trump’s tax returns to lawmakers.
There also could be shortcuts in the fight over a subpoena for the full special counsel report and the investigative materials, the high-profile showdown where the House Judiciary Committee voted May 8 to hold Attorney General William Barr in contempt.
Eggleston said the issue about the report itself should be “pretty quick” because the Justice Department already went through the report and indicated why various pieces were redacted, so any lawsuit would largely be an issue of whether Congress gets access to the grand jury material or information related to ongoing investigations.
If a judge needs more time, Miller said, “then it would not be unreasonable to say, okay set that aside but give us a partial judgment on what you agree with us, we’re clearly entitled to.”
But Trump’s assertion of executive privilege over the materials covered in the subpoena, a move made just before the Barr contempt vote, could complicate any congressional lawsuit to enforce it.
Michael Dorf, a professor at Cornell Law School, said part of the problem with asking for everything from the Mueller investigation is that there are “legitimate objections to parts of that material and it’s going to take some time to sort that through.”
The narrower the request, the easier it is for Congress to successfully enforce the subpoena quickly, Dorf said.
Congress can quickly enforce subpoenas against people who are not current or former Trump administration officials. Those witnesses have no legal ammunition to defy a congressional subpoena, so the courts will be on Congress’ side.
Donald Trump Jr., who fits that category, is now facing a subpoena from the Senate Intelligence Committee in its investigation into Russian interference in the 2016 presidential election.
It’s more complicated for former officials such as ex-White House Counsel Don McGahn, particularly when the president could invoke executive privilege over some of the testimony. Even then, the issue could be less about whether McGahn has to show up to testify and more about what questions he can answer.
Miller said Congress could use its inherent contempt power to impose a daily monetary fine and ask a court to empower a private attorney to prosecute criminal contempt of Congress.
Historically, a resolution for contempt of Congress against an administration official goes to federal prosecutors, who use their discretion and don’t pursue charges.
House Democrats also could be successful if they focus on areas where they force the administration to go to court to stop their oversight, Dorf said.
“Inertia can count for a lot in these cases,” Dorf said. “And it’s better to be sued than doing the suing because then if the courts do nothing, you benefit.”
House Democrats could issue subpoenas for witnesses and companies who want to cooperate, putting the onus on the Trump administration to get a judge to block that cooperation, Dorf said.
One example: If House Democrats subpoena Barr to testify and he refuses, it’s not realistic to arrest him, so Congress has to go to court to enforce the subpoena, Dorf said.
On the other hand, if Congress subpoenas Mueller after he’s no longer a Justice Department employee and he’s willing to testify, Dorf said, then “Barr has to go to court to block Mueller and now, until the court does block that, he can testify.”
First things first, however, because the House has not yet indicated when they might go to court to enforce their subpoenas.