Yesterday, Judge Amit Hehta issued a decision in the Trump-Mazar subpoena case. (The one in which the House is trying to get Trump’s accounting records from the Mazar accounting firm.) You can read the ruling here.
The legal quarrel was over whether Congress has authority to request Trump’s personal accounting records. Team Trump argued the subpoena was “invalid & unenforceable.”
The Court, in making its decision, considered the powers of the three branches. Congress’s task is to legislate, which requires oversight. Congress also has the power to remove, which requires investigative powers.
The court concluded the request for documents was valid because Congress is:
- Considering strengthening ethics and disclosure laws;
- Considering amending penalties;
- Monitoring the president’s compliance with the Foreign Emoluments Clauses; and
- insuring the president has no conflicts of interest that would prevent him from carrying out his duties.
Trump argued that Congress is just looking for political dirt. It’s Trump’s usual, “poor me, the Democrats are just out to get me so I’m a victim” argument.
The court didn’t buy it.
The court concluded that inquiry any that might enable Congress to do its job must be permitted; it doesn’t have to be for a specific piece of legislation or formal impeachment inquiry.
After all, when Republicans controlled Congress, they freely used their investigative powers. You don’t get new rules when the House changes leadership. That’s not how Rule of Law works.
In short, the court found that when Congress is acting in furtherance of its constitutional responsibility to legislate, courts must defer to congressional judgement about what it needs to carry out that purpose.
Courts don’t get to second guess Congress’s motives.
Remember how the conservatives used to slam “activist judges,” who “made law” instead of just following the law? Here’s George W. Bush decrying judges who “legislate from the bench” :
Quotation from here.
Now Trump is asking the courts to assign themselves the task of assessing the “motives” of Congress as Congress fulfills its constitutional duties.
What Trump is asking the courts to do goes way beyond mere activism. He wants the Courts to protect him from the Mean Congress.
Conservatives traditionally support what’s called judicial restraint, which means judges shouldn’t interject their own politics and should avoid creating law or second guessing the policy decisions made by other government institutions.
Trump’s request of the courts isn’t “conservative” (and isn’t liberal), but fully in keeping with the thinking of an autocrat, and what we might expect from the Trump-Fox-GOP—which is an authoritarian and not conservative party. What do I mean? See.
Team Trump—as we would expect—immediately filed his appeal.
In his quest to make himself an autocrat, Trump has been pummeling democratic Institutions and what Harvard profs. Ziblatt and Levitsky call the guardrails of democracy:
First, Trump took over the GOP and completed the GOP’s transition to an authoritarian party; he secured the GOP nomination, disproving the decades-long GOP notion that the only way to succeed on a white nationalist agenda was to disguise that agenda.
Next Trump pummeled the GOP leadership, causing them all to cave. From 2016-2018, the Republican led Congress became a shield instead of a check on presidential power.
Comey and others described how Trump corrupts people and gets them on his side.
Comey said: “people lacking inner strength can’t resist the compromises necessary to survive Mr. Trump. . .” Others have talked about how Trump does this, how he pulls people in, manipulates them, and gets them on his “side.”
Now he’s trying his victim game on federal judges.
As I wrote this, two examples of “poor Trump is a victim” popped into my feed. The first one was this tweet from Sen. Lindsay Graham:
Oh, come on. Really, Sen. Graham. You have never seen anyone treated so badly? How do you spell “wealthy white male privilege?”
And this one:
Trump will lose this. We have liberal and conservative judges, but not enough who will fall in line with Trump’s “poor me” schtick.
If you’re surprised by the “they’re out to get me” argument—which also underlies and informs the “deep state” defense—see this thread on victimization and the GOP. I wrote it about Kavanaugh, but it still applies.
I expect the Supreme Court to stay out of this, and if they get involved, to confirm that Courts don’t second guess the motives of Congress. For people who jump in and say, “But SCOTUS is on Trump’s side!” I’ve given two reasons the Court will not create an autocracy.
Here they are again:
The first reason is a cynical one: Why would they give up all their power and make themselves vulnerable to Trump’s attacks? What, for example, would stop Trump from ordering a justice killed and then shutting down the investigation and pardoning the criminal?
The real reason Supreme Court Justices won’t side with Trump: They do, in fact, want to preserve our Constitution. A few of them might want to take the country back to 1789 when white men did as they pleased—but even then, the president didn’t have unlimited powers.
The far right wing is supporting autocracy to wrest the country back from “the myth of deranged diversity.” That means taking America back to a bygone era when white men did as they pleased—not all the way back to autocratic King George.
