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Will Trump’s Latest Lawsuits Keep Congress From Investigating Future Presidents?

This is the Trump Docket, where we track some of the most important legal cases of the Trump presidency and how their results could shape presidential power. Questions, comments or thoughts about cases to cover? Email us here.

A separation-of-powers showdown has been brewing since Democrats took control of the House in January. And with two new lawsuits directly attacking House Democrats’ oversight authority, President Trump is now challenging whether one of Congress’s most potent checks on the executive branch can be used to probe his finances.

Over the past month, several House committees have issued subpoenas to banks with ties to Trump and an accounting firm that prepared several years of his financial statements, demanding a variety of documents. Trump has already declared that the White House won’t cooperate with any of the Democrats’ investigations, but he has little control over whether an external organization like a bank complies with a congressional subpoena. So he sued the banks, the accounting firm and House oversight committee Chairman Elijah Cummings. Trump is asking the courts to invalidate the subpoenas and arguing that they are an illegitimate exercise of Congress’s oversight power.

It’s a bold — and possibly even unprecedented — argument. Several legal experts told me that this appears to be the first time a sitting president has responded to a congressional inquiry by suing a member of Congress. They predicted that the cases will likely be difficult to win in court. Instead, they said, the lawsuits’ real power lies in politics and delay: They help Trump feed a political argument that House Democrats are unfairly persecuting him, while the subpoenas could be tied up in the courts for months or even years. And the ripple effects could be much bigger — if Trump successfully evades congressional scrutiny in these cases and others, future presidents could be emboldened to challenge Congress in similar ways.

Democrats are arguing that the contested subpoenas to Deutsche Bank, Capital One and Mazars USA, the accounting firm, fall squarely under their oversight powers. Congress can conduct investigations related to legislation and the functioning of the executive branch, and Democrats say they’re trying to learn whether Trump or his businesses are dependent on Russian money in a way that could influence his presidential decision-making. They’ve also said the banking subpoenas are part of a broader effort to determine whether the banks are helping Russian clients get money out of Russia. This wider investigation could theoretically trigger further congressional action if it reveals that the banks were involved in illicit money laundering.

But Trump is arguing that Democrats are seeking details of his private financial dealings merely to score political points and that the subpoenas to the banks violate privacy laws. In the lawsuit against Cummings and the accounting firm, Trump’s lawyers say that Democrats have “declared all-out political war” against the president, with subpoenas as “their weapons of choice,” and are trying “to expose [Trump’s] private financial information for the sake of exposure.” And in the lawsuit against Deutsche Bank and Capital One, they write that the subpoenas are intended to “harass” Trump and “ferret about for any material that might be used to cause him political damage.”

These claims of overreach might play well with Trump’s base, but the case itself is a long shot, said Cornell University law professor Josh Chafetz, who studies the relationship between Congress and the executive branch. “Congress has incredibly broad oversight powers, and there are any number of areas where these records could be relevant,” he said.

This doesn’t mean it’s a completely open-and-shut case, however. Lance Cole, a law professor at Penn State University and an expert on congressional investigations, said that because courts have ruled in the past that Congress can’t use its power to peer into citizens’ private lives without some legitimate justification, a judge might be sympathetic to Trump’s argument, particularly if Democrats are asking for lots of old financial documents. However, in the 1990s, Congress probed the details of a 15-year-old real estate deal involving Bill and Hillary Clinton as part of the Whitewater investigation, dredging up personal details from long before Clinton was president. That may bolster the argument that a president can’t really be compared with an ordinary citizen. “You can debate the merits of the investigation, but it’s hard for Trump to say that Congress has never done this before,” he said.

Trump doesn’t need to prevail in these cases to deal the Democrats a significant setback, however — he just needs to ensure that the lawsuits are not immediately dismissed. That’s because it can take months for a case to wend its way through the judicial bureaucracy before it goes to trial, and the subpoenas will likely be put on hold until the case is resolved. “It’s completely possible we won’t have an answer until after the 2020 election,” said Margaret Taylor, a fellow at the Brookings Institution.

So the lawsuits are likely to help Trump whether or not he ultimately wins them. In the short term, they’re feeding a broader political narrative of Democratic overreach. In the medium term — possibly through the entire election cycle — they will delay Democrats’ efforts to access his financial records. The million-dollar question is what the impact will be on our political system in the long term. Taylor told me that it’s deeply unusual for a president to argue that he’s simply not subject to congressional oversight. “Since Watergate, presidents have had their disagreements with Congress, but they have recognized that Congress has a valid oversight role,” she said.

Regardless of what happens with Trump’s finances, this fight could be a sign of things to come. “If Trump continues to stonewall and the Democrats don’t push back or their pushback is ineffective, future presidents will decide that they basically aren’t answerable to Congress unless they want to be,” Chafetz said.

Other cases

President Trump

A case alleging that Trump is unconstitutionally accepting “emoluments” from foreign countries will be allowed to move forward. A federal judge in Washington, D.C., ruled that congressional Democrats’ definition of emolument — which broadly encompasses any gift or payment from a foreign power — is more convincing than Trump’s attorneys’ narrower definition of an emolument as a payment received for services performed in the president’s official capacity. Another emoluments case filed by the attorneys general of D.C. and Maryland is currently pending in an appeals court, but the scope of the Democrats’ lawsuit is much broader — rather than focusing on Trump’s Washington, D.C., hotel, it implicates all of Trump’s businesses worldwide.

The Trump administration

  • One of the cases challenging Trump’s national emergency declaration was voluntarily dismissed by the plaintiffs, who said they were withdrawing from the suit because the money obtained through the declaration wouldn’t be used to build barriers in the places where their clients are located. Many other lawsuits involving the national emergency declaration are ongoing.
  • The Supreme Court heard oral arguments in April on a case about whether the Trump administration can add a question about citizenship to the 2020 census. Many observers reported that the court’s conservative majority seemed willing to allow the addition of the question.
  • The Department of Justice filed a brief in a case involving the constitutionality of the Affordable Care Act, arguing that the entire law is unconstitutional, which is a reversal of its previous position that some, but not all, of the ACA should be struck down. A federal district court judge in Texas ruled in December that the ACA is unconstitutional because a 2017 law removed the tax penalty for not having health insurance. The case is now pending appeal.
  • A federal judge in Maryland denied the Trump administration’s request to dismiss a new set of lawsuits against the travel ban to the U.S. by residents of seven countries, including several where most of the citizens are Muslim. The Supreme Court allowed the policy to take effect last summer, but the new travel ban lawsuits are challenging the legality of its design and enforcement. The judge’s ruling will allow the plaintiffs to obtain evidence about how the process of administering the ban is unfolding.

From ABC News:


Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

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