Congress urges Supreme Court not to delay House committees’ access to President Trump’s financial records (updated)

Lawyers for Congress urged the Supreme Court on Wednesday not to delay House committees’ access to President Trump’s financial records, saying the information could be crucial to investigating foreign involvement in American politics and legislative protections for next year’s elections. House asks Supreme Court not to delay access to Trump’s financial records, citing threat to 2020 elections:

“Nothing is more urgent than efforts to guard against foreign influence in our systems for electing officials, particularly given the upcoming 2020 elections,” House General Counsel Douglas N. Letter said in a filing to the court. “There is bipartisan agreement that such interference is an imminent threat.”

Trump has asked the high court to review a decision from the U.S. Court of Appeals for the 2nd Circuit in New York that upheld Congress’s broad investigative authority, and ordered Deutsche Bank and Capital One to comply with House subpoenas for the president’s financial information.

It is one of three similar cases awaiting Supreme Court action, which could come as soon as Friday. [The Court’s next scheduled conference day.] Trump and his personal lawyers have asked the justices to accept the cases for formal briefing and a decision this term, saying they present potentially landmark questions about the separation of government powers.

Lower courts have ruled that another House committee and Manhattan District Attorney Cyrus Vance Jr. have a right to financial and personal records maintained by Trump’s longtime accounting firm, Mazars USA.

Letter and Vance have told the Supreme Court that the decisions do not break any new legal ground and that the high court’s review is unwarranted. They have urged the justices to let the rulings go into effect so that prosecutors and members of Congress can do their jobs.

“It cannot be the case that the president has the right to stall any congressional subpoena to which he objects through the months or years” of legal battles, Letter said in Wednesday’s filing. “If that were true, the House — which has only a two-year term — would be severely constrained in its ability to conduct oversight or to collect information relating to the executive branch.”

In the Deutsche Bank case, the House Intelligence and Financial Services committees are seeking more than 10 years of financial records on Trump, his three oldest children — Eric Trump, Donald Trump Jr. and Ivanka Trump — and the president’s businesses.

The committees say they need the records as part of broad investigations into Russian money laundering and potential foreign influence involving Trump.

The investigations by Vance and the House Oversight and Reform Committee began following allegations that Trump’s former personal lawyer Michael Cohen made hush-money payments during the 2016 campaign to women who claimed to have had affairs with Trump years prior. Cohen is serving a three-year prison sentence for financial crimes and lying to Congress.

While Trump’s lawyers have said the cases raise fundamental questions that require Supreme Court attention, Letter said the lower courts found they were easily answered by precedent. They are no separation-of-powers questions for the high court to weigh, he said.

“The committees have not requested any documents pertaining to the official functions of the executive branch,” he wrote. “Nor have they sought to require the president, his family, or any member of the executive branch to take any action. Instead, they issued subpoenas to financial institutions seeking non-privileged records maintained in the ordinary course of business.”

As I’ve said previously, it is not at all certain that the U.S. Supreme Court will grant certiorari in these cases, given the long-standing legal precedents, including Supreme Court precedents, which support enforcement of congressional subpoenas in pursuit of its constitutional oversight function.

There is no basis at law for the Trump administration’s expansive “unitary executive” theory that there can be no investigations and no prosecution of the president, including congressional investigations, i.e., that he enjoys “absolute immunity” which extends to his businesses and business associates, and others with whom he does business (in this case his banks and accountants).

Not even the Roberts Supreme Court is going to accept this radical theory. If the court agrees to consider this appeal, it will be for the purpose of rebuking the Trump administration’s radical theory, and likely in an expedited fashion. To do otherwise would eviscerate the rule of law and constitutional separation of powers, and usher in an authoritarian dictatorship. Chief Justice John Roberts does not want the end of the Republic to be his historical legacy.

UPDATE: In a separate, but related matter, a trio of lawsuits claiming that Trump’s business dealings are violating the Constitution’s emoluments clause are now advancing to critical stages. NPR Reports, Trump Still Faces 3 Lawsuits Over His Business Empire:

On Thursday, the full U.S. Court of Appeals for the 4th Circuit in Richmond, Va., will hear arguments to reconsider a ruling from a three-judge panel of the court, which in July dismissed the case over lack of standing.

Lawyers representing the attorneys general of Washington, D.C., and Maryland, which brought the lawsuit, are optimistic. They are hoping the court will hand them a victory in the form of a court order declaring that Trump is in violation of the Constitution’s Emoluments Clause, an anti-corruption provision that prohibits federal officials from receiving gifts or money from state and foreign governments.

“From the first moment he became president, Trump was in violation of the Foreign Emoluments Clause,” says ethics lawyer Deepak Gupta, who is on the legal team representing the states that are suing. “He is openly doing so in a rather brazen way, in a way no other American president has ever done.”

Trump’s global business empire includes hotels, golf clubs, condominiums, patents, licensing deals and other ventures.

The case in front of the appeals court on Thursday centers on Trump’s International Hotel, just blocks away from the White House. Officials from Georgia, Kuwait, Saudi Arabia and other countries have collectively spent hundreds of thousands of dollars at the hotel, profits the lawsuit says are funneled directly to Trump’s business coffers.

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In a legal filing, Trump’s lawyers said the president’s company is in discussions to possibly sell the rights to the Trump hotel blocks away from the White House. If it is sold to a new owner, the case brought by the District and Maryland would have a challenging time keeping the legal battle alive, since, without Trump’s stake in that hotel, the central pillar of the case will collapse.

Right now, the Trump administration is hoping to persuade the appeals court to hand them a victory for arguing that the states do not have standing, or the legal right to sue in the first place.

“These claims also are speculative because first, they assume that the operation of a single luxury hotel in downtown Washington, D.C., would have an extraordinarily wide-ranging impact on D.C.’s and Maryland’s economies, and second, they are necessarily dependent on the independent choices of third-party customers not before the Court,” the Trump administration wrote in a brief.

The arguments on Thursday will be in front of the full 4th U.S. Circuit Court of Appeals. The hearing follows a ruling in July in which a three-judge panel of the court sided with Trump and ordered the dismissal of the lawsuit over a lack of standing. All three judges on that court were appointed by Republican presidents. The full appeals court has judges appointed by presidents of both parties.

If the legal teams suing Trump get their wish, a full look at Trump’s business dealings with foreign governments will be exposed.

In addition to the case before the appeals court on Thursday, Gupta is on the legal team on another pending emoluments lawsuit in New York filed against Trump by competing restaurants and hotels.

That case is before a federal district judge and nearing the discovery phase, which is when parties can begin issuing subpoenas and start other types of evidence gathering.

But the Trump administration has successfully delayed that process for months by fighting through appeals.

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A third case filed by more than 200 Democratic members of Congress is alleging violations of the Emoluments Clause. The lawmakers point to a section of the provision that says foreign emoluments require the consent of Congress, and they argue that the president has not sought their approval.

On Monday, Trump’s legal team argued in front of an appeals court that individual members of Congress do not have the right to sue the president, and the panel appeared sympathetic to that position.

Legal scholars say that just getting these cases to survive procedural hurdles is so tricky because it is completely uncharted waters. Before Trump, federal courts had not tested emoluments lawsuits leveled against a U.S. president.

Sen. Richard Blumenthal, D-Conn., who is the lead plaintiff in the emoluments case brought by Congress, says he is hoping for a judicial victory in his case, but that he would be happy to see any one of the three lawsuits force Trump to disconnect himself from his businesses.

“You cannot continue accepting payments and benefits at the hotels and condominiums and rental properties and permits and trademarks all around the world,” Blumenthal said in an interview after a court hearing this week, describing the legal outcome he is seeking. “It is not ‘you must pay back money.’ It is not ‘you go to jail.’ It is simply ‘stop violating the law.'”

Trump has made his view of the Constitution’s emoluments clause apparent, telling reporters back in October: “You people with this phony Emoluments Clause.”

Trump’s contempt for the Constitution and the rule of law is boundless. He is the most corrupt and lawless president in American history.