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When the president goes to war with Congress for a subpoena, time is usually on the side of the president.
In most cases, the Congress looks for information held by the president himself or by one of his allies in the executive branch. So, until a court expressly orders the executive to disclose this information, the president can withstand the subpoena simply by doing nothing. During the Obama administration, for example, the Congress requested documents from the Ministry of Justice in 2011. Although Congress eventually won the legal battle over the discovery of these documents, the first judicial decision ordering the administration to comply with the summons was not issued until 2016.
Which brings us to Trump c. Supervisory and Reform Committee – and, more precisely, the role of the accounting firm Mazars USA in this case. Mazars is not the hero that America deserves, but it is perhaps the hero we need. And he could become this hero simply by refusing to play with President Donald Trump's massive resistance to congressional oversight.
To explain, various House committees are seeking documents revealing Trump's finances and likely to reveal conflicts of interest that affect Trump's governance. One of these committees is the House Monitoring and Reform Committee, which has assigned Mazars – Trump's accounting firm – to search for "documents and information on the
the establishment, review and audit of the financial statements of Trump and its business.
entities. "
According to the committee, the purpose of this investigation is to examine "several specific cases in which the statements of assets and liabilities of President Trump differ significantly from what was subsequently reported in his disclosure statements." required as a candidate and as a federal public servant. , "And to determine whether new legislation is needed" to broaden the scope, sentences and periods covered by financial disclosure laws "and to supplement" criminal laws governing the communication of financial information to financial institutions ".
Mazars, for its part, offered only symbolic resistance to this subpoena. Before the appearance of the summons, the committee asked Mazars whether it would voluntarily transmit Trump's financial documents. Mazars responded with a very brief letter explaining that he could not do so because of various laws and regulations prohibiting "the disclosure of confidential information about the customer without the consent of the customer or the receipt of" 39, a validly delivered and enforceable summons ".
The committee took the remark and issued such a summons.
Since then, Mazars has declared its neutrality in the dispute between Trump and Congress. In a document filed in Asset In the litigation, the accounting firm explained that "the dispute in this action concerns the plaintiffs and the committee" and that "Mazars USA does not take a position on the legal issues raised by the plaintiffs and does not ask for the time necessary to the pleadings before the Court ".
The neutrality of Mazars is a big problem. If the documents requested by Congress were only in Trump's possession, he could deploy all the possible obstructive tactics to prevent Congress from obtaining these documents – and he would succeed until Congress obtains a court order. compelling him to comply. Even after Congress had obtained such an order, he would probably not be able to execute it until Trump had exhausted his appeals.
But Mazars does not seem to have an interest in joining Trump's resistance to the subpoena. On the contrary, his declared neutrality suggests that he will comply with the summons to appear unless a court orders them not to do so. The neutrality of Mazars, in other words, reverses the balance of power between Trump and Congress. Instead of being able to count on the clock, Trump now needs to get a court order preventing Mazars from complying.
In the absence of doubt, Trump's legal arguments are extremely weak. As the Supreme Court has ruled in Eastland c. United States Servicemen's's Fundsthe speech and debate clause of the Constitution generally prohibits courts from defeating congressional oversight. "Once it is determined that the deputies are acting in the" legitimate legislative field "", according to the Eastland, "The clause of speech or debate is an absolute obstacle to any interference."
In this case, there is no question of whether Congress is acting in the "legitimate legislative field" because it seeks to know if additional legislation on ethics is necessary – and also because it detects conflicts of the President of the United States, which: Congress must deal with all legislative matters. Congress also has the power to dismiss the president, so an impeachment investigation would provide another legitimate basis for this subpoena.
Judge Amit Mehta, a district judge appointed by Obama and hearing the Asset case, issued an order Thursday stating that he plans to settle this case very quickly. Although Trump's lawyers have sought a preliminary injunction – a temporary form of reparation that judges sometimes give to a party likely to prevail at the end of a full trial – the l & # 39; Judge Mehta's order indicates consolidate it with the hearing on the motion for preliminary injunction. This hearing will take place next Tuesday.
It is therefore likely that we will know very soon if Judge Mehta will cancel the subpoena of the House of Representatives, an unlikely result given the strong legal arguments that are invoked by the House. It remains to be seen, however, whether a highly partisan Supreme Court will ignore cases such as Eastland to bail Mr. Trump.
At the very least, however, the Supreme Court will have to act quickly enough if it plans to join Trump's massive resistance campaign. Judge Mehta is expected to rule very soon and Mazars will voluntarily comply with the subpoena unless Mehta ignores binding precedents such as EastlandTrump lacks time to keep his finances secret.
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