Trump Lawyers Makin' Sh*t Up Again 'Cause It's A Day
In the wake of Judge Mehta's epic smackdown, the Trump legal braintrust has filed a very serious response and it is THE PEOPLE DON'T REALLY NEED TO KNOW WHETHER OR NOT THEIR PRESIDENT IS A CROOK. And if they do, they should rely on the president himself to tell them. Because it is UNLEGAL for Congress to investigate, and thus Judge Mehta is completely ...
Yes, this is a very serious brief that is not about to get summarily laughed out of the DC Court of Appeals. You bet!
Without a whiff of irony, the brief opens, "The separation-of-powers implications of this appeal are profound." That's a rather odd stance for an appellant complaining that the trial judge refused to interfere in the legislative process, but go on!
At trial, Judge Ahmit Mehta reasoned that the impeachment power necessarily included the power to investigate the president. But Trump's lawyers know that Congress is only allowed to impeach the president if the Attorney General says he did crimes, and Bill Barr says NAH.
How is that consistent with Watergate and Whitewater, you ask? Never fear, Gumby and Pretzel, attorneys at law, have worked that out for us.
Congress is simply not allowed to conduct law-enforcement investigations of the President, and the district court's invocations of Whitewater and Watergate do not suggest otherwise. Congressional committees were formed to investigate those scandals, but the district court identified no subpoenas that the committees issued to private individuals or the President—much less subpoenas that were resisted, litigated, and upheld. That is because the lion's share of the Watergate and Whitewater subpoenas were issued by actual law-enforcement authorities (special prosecutors, independent counsel, and grand juries), not Congress. When some of those subpoenas were upheld, the courts were careful not to suggest that Congress had similar power. [Citations omitted.]
So, if we've understood that pellucid logic, we can infer from the existence of congressional committees to investigate Presidents Nixon and Clinton that such committees are illegal. And because the court enforced law enforcement subpoenas on the president but explicitly didn't reach the validity of congressional subpoenas, we can infer that congressional subpoenas on third parties who are not the president are, in fact, illegal.
Then they suggested that Congress can only investigate the president in an impeachment investigation, which is FINE BY US. But it's a strange position for people who argued 20 pages later that Judge Mehta committed reversible error by bringing up impeachment when the defendants hadn't mentioned it. Trump lawyers gotta go to war with the garbage army they have, we guess. That's how they wound up arguing that Judge Mehta, that goofball, mixed up "motive" and "purpose."
The district court (at times) confused the required inquiry into legislative purpose with a search for hidden "'motives of committee members.'" The difference between "purpose" and "motive" is important. The court knew it needed to identify the "purpose of the Mazars subpoena" to decide if that purpose is legitimate. [Citations omitted.]
AH SO. These champions of the sacred separation of powers want the judge to disregard the facially legal rationale that the Oversight Committee needs Trump's financial disclosures to investigate his compliance with the Emoluments Clause and to determine if he submitted false financial disclosures to the federal government, but if Judge Mehta had assessed their real purpose -- not their motives, heaven forfend -- it would be clear they just want to let the public know about Trump's finances. Which is ILLEGAL because holding hearings and informing the public is ... not Congress's job?
(Astute observers will note that the president has taken exactly the opposite position when it comes to government litigation, arguing that Wilbur Ross's ability to say with a straight face that the citizenship question is being added to make sure minorities are accurately counted so they can vote outweighs the abundant evidence showing exactly the opposite. And Donald Trump can tweet that he's trying to ban Muslims, but if his lawyers claim the Travel Ban is for national security, then it is entirely inappropriate for courts to assess Trump's motive. Or purpose. Because those two are completely different.)
Also, too, the Ethics in Government Act is illegal and Donald Trump is just complying with it to be nice. So, if he lied on his financial disclosures about, say, an outstanding liability to Michael Cohen to reimburse him for a hush money payment to a porn star, it's totally kosher!
Last, the provisions of the Ethics in Government Act that require the President to disclose his finances to Congress once he is in office are unconstitutional, so any effort to "strengthen" or "enhance" them is too. The President has voluntarily complied with those statutory requirements. But compliance is not the measure of constitutionality. That Congress can require other executive-branch officials and lower-court judges to submit financial disclosures, does not mean it can require the President or the Justices to do so. It is unfortunate that the Committee is forcing this Court to test "the limits of Congress's power," in this regard. But the Constitution was designed so the President (like the Supreme Court) would operate "free from risk of control, interference, or intimidation by the other branches."
And finally, should this case wind up before the Supreme Court, Messrs. Pretzel and Gumby have a subtle message for Justice Kegstand.
Yet replace "President" with "Justices" and the ruling below would, without question, authorize a congressional subpoena for the Justices' accounting records—even for many years before they joined the Court. There would "be little doubt" that "Congress's interest in the accuracy of the [Justices'] financial disclosures falls within the legislative sphere."
Look out, Boof, they're coming for your tax returns!
If bullshit were music, these guys would be a brass band. And, okay, fine, their names are Consovoy, Passantino, and Strawbridge, not Gumby and Pretzel. WHAT. EVER.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.