President Donald Trump has said his administration will fight all subpoenas Democrats file. | Win McNamee/Getty Images
Administration lawyers have rejected several House subpoenas and requests, all but ensuring long legal battles.
President Donald Trump may successfully drag out many of his legal battles with Congress beyond 2020, denying Democratic investigators much, if any, political bounty before the next election.
With Democrats pressing on multiple fronts, from demanding Trump’s tax returns to seeking the testimony of current and former administration officials, some Trump allies see a White House working to buy time.Story Continued Below
Administration lawyers have rejected a variety of Democratic requests and subpoenas, taking steps that seem to ensure protracted legal battles, which past presidents have used to run out the clock on their congressional adversaries.
Asked whether Trump could keep his legal blockade up through November of next year, one former senior White House official said: “One and a half to two years is a safe bet.”
Eric Columbus, a Justice Department and Department of Homeland Security attorney during the Obama administration, said: “The pace tends to be very slow. It might end up going all the way to the Supreme Court.”
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That creates the prospect that Trump won’t be forced to turn over explosive documents or provide witnesses for hearings until after his reelection bid is complete.
And while Trump’s defiant posture — including his declaration on Wednesday that he will fight “all the subpoenas” Congress has issued — could look like stonewalling, the president has shown little concern for appearances.
“One of the goals [for Trump] is to delay things as much as possible — and you can do that when fighting a subpoena, if you’re not worried about being perceived to be blocking information from reaching the public,” Columbus said.
Rudy Giuliani, the president’s personal lawyer, told POLITICO on Wednesday that a stalling effort was wise given what he called the partisan motives of congressional Democrats.
“I think it’s exactly the right legal strategy. … I doubt there’s anybody in America that thinks this has some legitimate governmental purpose,” Giuliani said, noting that he is not shaping the White House’s legal strategy for handling official requests. “It’s a joke. I mean, they really have to be very naive.”
“This is like a judge saying I’m going to hang you, but I’ll give you a trial first,” he added. “We generally don’t go for that in America, and you’d have to be a fool to cooperate with it. It’s obviously a political effort. Congress shouldn’t be used for it. Let’s see if a court wouldn’t agree.”
Trump is hardly the first president to vigorously contest congressional oversight, even if Democrats insist he is stonewalling to an unprecedented degree. Similar showdowns between Congress and the White House under prior presidents have lingered for years as the two sides haggled in court.
A standoff between the House Judiciary Committee and President George W. Bush’s administration over the November 2006 firing of several U.S. attorneys dragged into 2009, for instance, resulting in a deal for the testimony of former White House officials that President Barack Obama’s White House negotiated after Bush left office.
And an Obama-era fight in which a Republican House demanded information on the gun-trafficking probe known as Operation Fast and Furious was joined in 2011, with the House voting in 2012 to hold then-Attorney General Eric Holder in contempt. The fight lingers in court to this day, with information emerging in dribs and drabs over the past seven years.
All too aware that Trump can invoke constitutional arguments like executive privilege to fend off inquiries that touch on his presidency, House Democrats are also going after Trump where he has fewer legal defenses.
Both the House Judiciary Committee and the House Oversight and Government Reform Committee are seeking information not only from government agencies and members of Trump’s inner circle, but also from businesses, banks and private individuals who were involved in special counsel Robert Mueller’s investigation or in business dealings with the Trump Organization.
While White House officials and federal agencies may defy a congressional subpoena at the White House’s direction, businesses and others outside the government are unlikely to do so. That puts the onus on Trump’s attorneys to challenge such subpoenas, rather than waiting for the House to act to enforce them.
“It’s the right strategy,” one former White House official said of the House effort. “Private companies don’t want bad publicity. They may have ongoing relationships with the government or congressional committees and don’t want to affect that.”
The White House and government agencies sometimes decide not to comply with a subpoena, but “banks are not generally inclined to do that,” the former official added.
The House strategy of seeking information from alternative sources led to a new battle this week as Trump’s lawyers went to court to try to block one of his accounting firms from handing over records in response to a House subpoena. The suit, filed against Oversight Chairman Elijah Cummings (D-Md.), accuses the panel of acting with no legislative purpose and as partof a political vendetta against Trump.
The case was assigned to U.S. District Court Judge Amit Mehta, an appointee of President Barack Obama. Mehta has set a hearing for May 14 on Trump’s demand for an injunction.
The suit seems like an uphill battle for Trump. Last year, House Republicans tried a similar tactic to the one that House Democrats are pursuing now. After Fusion GPS — the research firm that helped prepare the widely disputed dossier on Trump’s ties to Russia — refused to comply with a subpoena for records about payments it made, the House Intelligence Committee subpoenaed similar information from the firm’s bank. Fusion GPS sued to block the bank from disclosing the info, but a judge turned the company down.
“This court will not — and indeed, may not — engage in a line-by-line review of the committee’s requests,” wrote U.S. District Court Judge Richard Leon, a George W. Bush appointee. Leon also cited a Supreme Court ruling saying he had no authority to consider the “motives” behind Congress’ action.
However, despite that decision, one House Republican committee source suggested that courts might find limits on Congress’ ability to enforce subpoenas, especially if a judge deemed it to have “the intent of abusing or embarrassing the person being investigated.” The source also suggested that courts, which have historically granted Congress enormous latitude to demand information from the executive branch and private sector, might view the personal records of the president differently.
“I’m not sure there’s a lot of precedent for a scenario just like this one,” said the source, who spoke on the condition of anonymity. “It’s probably a pretty novel question.”
Another battle seems to be looming over the testimony of former White House counsel Don McGahn. The White House appears set to fight any House subpoena for McGahn, which could trigger a court fight over executive privilege.
However, Trump may have undercut his privilege claim by allowing McGahn to be interviewed by Mueller for 30 hours about all kinds of internal deliberations, including direct conversations with the president. Some lawyers say the claim was further undermined when the White House signed off on the release of Mueller’s report without any redactions on executive privilege grounds.
“It may be that executive privilege would have applied, but I think the waiver argument is very compelling,” said Ron Weich, dean of the University of Baltimore School of Law, who served as head of the Justice Department’s legislative affairs shop during the Obama administration.
Other lawyers say court rulings suggest that the waiver could be more narrow, limiting what Congress could ask McGahn. And some also say that legal precedents suggest the House could bolster its claim to testimony from McGahn and others by formally opening an impeachment inquiry, which Speaker Nancy Pelosi has been reluctant to do.
The Bush White House’s attempt to resist subpoenas for former White House counsel Harriet Miers and other officials about the U.S. attorney firings resulted in an initial ruling that went against the president. U.S. District Court Judge John Bates rejected the administration’s position that the officials were completely immune from testifying and did not even have to show up.
Bates ordered them to appear for depositions, although he left open the possibility that they could refuse to answer certain questions. His ruling was on appeal to the D.C. Circuit when Bush left office. The Obama administration, in consultation with Bush representatives, cut a deal to have Miers and former Bush aide Karl Rove submit to interviews behind closed doors. But the battle took almost two years.
The appeal was withdrawn, and the D.C. Circuit never ruled on whether Bates was right.
Lawyers said one wild card in the forthcoming fight was how willing McGahn would be to appear and tell his story. As White House counsel, he was notoriously taciturn in public, speaking publicly only once or twice a year but displaying a wry sense of humor when he did.
If Congress tries to force McGahn to testify, that process could be complicated.
“Many years ago, Congress ceased trying to enforce its own subpoenas and instead generally seeks to outsource enforcement to the other branches,” said Ross Garber, a legal expert in government investigations and impeachment. “Here, the executive branch will not come to its aid, and the judicial branch … will generally show great reluctance to intervene in a dispute between the executive and legislative branches. Civil litigation, which the path the House is now contemplating, can be long and uncertain, both of which favor the president.”
While McGahn has praised Trump and seems ideologically aligned with the White House, it’s unclear whether Trump’s recent public attacks on McGahn might push the conservative lawyer into a more adversarial stance toward the president.
If McGahn wants to testify, it might be difficult for the White House to stop him by racing to court.
“It would be a drastic step. I can’t think of any prior example,” said Mark Zaid, an attorney who advises government employees on their confidentiality obligations.
Zaid noted that because executive privilege covers all presidential advisers, not just White House lawyers, any legal move to stop McGahn from speaking publicly about his tenure at the White House would seem to open the door to silencing White House aides more generally.
In theory, McGahn could be risking some bar sanction if he revealed confidences he learned while in the White House. In 2017, acting Attorney General Sally Yates raised a similar concern about a congressional demand for her testimony about discussions that led to her resignation over Trump’s travel ban policy. The White House eventually agreed to let her testify.
“There are tons of people who have written books about being lawyers in the government, they have possibly crossed that line and nothing happened to them,” Zaid noted.
McGahn’s attorney didn’t respond to requests for comment, but his team seems to be seeking some protection on that front, either in terms of White House permission or a court ruling blessing his testimony.
It’s also unclear how Trump’s public intransigence will play with judges. In past fights in other administrations, judges have traditionally urged both sides to try to negotiate some resolution. If Trump rejects any such effort, it’s possible he could unwittingly prompt faster action by the courts.
“The executive branch usually does not want to be seen fighting transparency,” said Columbus, the former government attorney. “If the president is OK with that, he may feel no harm to just fighting everything.” But, he said, the pressures for some negotiation could lead Trump to waver on his vow to defy Congress.
“He says that now, but he may — or may not — continue to take that position.”
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