Deutsche Bank appeal -- oral argument audio available

The audio recording of last Friday’s oral arguments in the Deutsche Bank subpoena case appeal is now available from the 2nd Circuit website.

Biggest takeaways —
Trump’s lawyer (Strawbridge) was questioned extensively (and skeptically) about the bases of their claims. It’s pretty clear that neither the “separation of powers” argument, or the “it’s law enforcement, not legislation” argument, are considered serious by any of the judges.

But the judges questions for the House lawyer (Letter) were “leading” – designed to give Letter the opportunity to rebut Strawbridge’s argument, or dealt mostly with minutia. For instance, the court wanted to know if there was a problem with potential HIPAA (health care confidentiality) violations – the example cited was a check to a gardener who was injured at work.

The biggest thing I learned was that Trump’s lawyers are requesting that the court require “negotiations” between the House and Trump. This is clearly a delaying tactic designed to slow down any decision that would compel document production. But when asked, Strawbridge couldn’t provide a single example of any documents he’d be willing to hand over.

It’s pretty clear that the court is going to side, by and large, with the House. Prior to a final ruling, they might order limited negotiations (perhaps a week) to preclude an appeal to the Supreme Court based on the “negotiations should have been ordered” argument. But the point of the negotiations will be to establish that Trump is unwilling to provide the documents most relevant to the committee’s investigation while excluding records about credit card purchases of a Diet Coke, thereby demonstrating that the “subpoena is overbroad” argument for an appeal is a red herring.

And they will probably require that the House and the banks work together to preclude any HIPAA violations.

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Another major takeaway is that Strawbridge is a complete jerk, and has no legitimate legal argument. (I am not even all the way through yet, but I cannot imagine that it gets better for him.)

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Part of what Strawbridge seems to be arguing is that the people or committees issuing the subpoenas need to know exactly what they are looking for in terms of evidence and outcomes before they get to see anything. That is absurd on its face.

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what I liked about the hearing is that the judges clearly knew the law and relevant precedents, and seemed to be toying with/taunting Strawbridge.

Strawbridge is doing what lawyers do, i.e serving the client’s interest. That doesn’t make him a jerk.

But the fact that he clerked for Clarence Thomas does weigh heavily in favor of the “jerk” characterization.

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Perhaps I am reading into it, but Strawbridge also sounds a bit nervous. I suspect that he knows he really doesn’t have a strong case. He is saying that the material requested in the subpoena is too broad, but isn’t giving any indication of what would would be acceptable. (The subpoena stating a concern for money laundering via real estate deals should be limited to real estate transactions, which prevents a broader picture of the context in which the real estate transactions take place.)

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My definition of a jerk includes people trying to weasel their way through the law to protect bad parties.

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The judges do seem very well aware of the law and precedents. (Answering their own question when Letter seems uncertain, was an interesting moment.)

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It does sound as if they are going to want some measure of effort at negotiations. If that happens, I hope it has a tight restriction on the amount of time allowed for what is clearly just going to be a delaying tactic from the Trump side.

It is a tiny bit disconcerting to hear Letter assert an inherent legitimacy for Congress as some kind of responsible party after Benghazi and all the other Republican nonsense, but I suppose one has to try to think of it in general terms.

Edit: I like the fact that Letter specifically makes the point that the Trump side is being disingenuous in pleading for negotiations. Of course they are. As he states, the Trump side thinks that nothing is the reasonable response to what they should have to provide.

I feel the same way. Congress’ power to investigate has been expanded beyond all reason. In practice, there is no longer a “legitimate legislative purpose” required.; all you need is a pretext of a legislative purpose, and the courts will decline to intervene, based on an unwillingness to be “mind readers”. (for instance, if a subpoena is issued by a committee, and some of those who voted to issue the subpoena had “legitimate” reasons in mind, and others did not – what is the court supposed to do?)

And the result of that is a dangerous expansion of Executive privilege. The Fast and Furious case resulted in a definition of “executive privilege” that goes well beyond “Presidential communications”, and now covers “deliberations” throughout the executive branch when the have an impact on Presidential actions.

ETA:

Yeah, that was pretty good. I suspect that at least one of the judges wishes they had asked Strawbridge about Trump’s “no cooperation” statements… but maybe they just took pity on the guy…

Am I misunderstanding Strawbridge in arguing that the subpoenas are an attempt to do law enforcement rather than investigation for legislation? If they are looking for law enforcement, presumably a violation of a law that already exists, isn’t that only a problem if you fear that they will find something of that sort? If the subpoenas are granted based on the context of an investigation for legislation, and in looking at the information obtained, what happens if they do find evidence of a crime against existing law?

The information can be made public, for starters.

Its not so much that Congress is forbidden from doing law enforcement investigation per se. Its that they can’t use the powers derived from the power to legislate to conduct a law enforcement investigation. In other words, a subpoena issued as part of an investigation that was aimed solely at investigating misdeeds by Donald Trump, without any legislative pretext, would be ruled invalid…

EXCEPT, that is, when impeachment powers were invoked. Because just as Congress needs information to properly exercise its legislative powers, it also needs information to exercise its impeachment powers fully and appropriately.

The big reason I listened to the whole recording was to see if the judges would ask about the potential use of the information in an impeachment inquiry. They didn’t, which I found disappointing.

That’s not quite right. Congress is not a law enforcement agency, and thus it will never conduct a so-called 'law enforcement investigation". But the Supreme Court has held that Congress has extremely broad investigative powers. For example,

The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.

Basically, if Congress has legislative authority over a subject it may conduct investigations that are related to that subject and issue subpoenas in support of its investigations. Congress can investigate the deeds and misdeeds of Donald Trump as they relate to matters under its legislative authority – and that legislative authority is very broad. The case under discussion is not based on Congress’s impeachment powers, yet Congress is seeking Trump’s tax returns.

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