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.