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May 21, 2019

CAFE Brief 05/21: House oversight victory, unprincipled pardons and Amash v. Trump

Preet Bharara and Anne Milgram had much to discuss on the newest episode of the CAFE Insider podcast: the push to overturn Roe v. Wade; President Trump’s unprincipled approach to granting pardons, newly un-redacted court documents that reveal unknown information about Michael Flynn’s cooperation with Mueller, and more. To listen, join the CAFE Insider community. Thank you to everyone for supporting our work!


During the past few days, a federal judge held that a House Oversight subpoena for Trump’s financial records is within Congress’s investigative powers, former White House counsel Don McGahn was blocked from testifying, and Rep. Justin Amash became the first Republican to say Trump engaged in impeachable conduct. Let’s dive in!

UNITED STATES – MAY 9: Rep. Justin Amash, R-Mich., walks up the House steps for a vote in the Capitol on Thursday, May 9, 2019. (Photo By Bill Clark/CQ Roll Call)

House oversight victory

On Monday, U.S. District Court Judge Amit Mehta ruled that Trump’s longtime accounting firm, Mazars USA, must comply with a Congressional subpoena demanding the President’s financial records dating back to 2011. The Judge accepted the Committee’s stated reasons for requesting the documents—to strengthen ethics and disclosure laws and to monitor the President’s compliance with the Foreign Emoluments Clause—as “facially valid legislative purposes,” stating that “it is not for the court to question whether the committee’s actions are truly motivated by political considerations.”

According to a news analysis by The New York Times, the ruling is “an early judicial test of the president’s vow to systematically stonewall ‘all’ subpoenas by House Democrats,” and “the legal fight is far from over,” as Trump plans to appeal the ruling.

McGahn won’t testify

The Justice Department’s Office of Legal Counsel (OLC) released an opinionon Monday, stating that Congress “may not constitutionally compel” former White House counsel Don McGahn to testify about his official duties. White House counsel Pat Cipollone then referenced this OLC opinion in a letter to House Judiciary Committee Chairman Jerry Nadler, stating that “[b]ecause of this constitutional immunity, and in order to protect the prerogatives of the Office of the Presidency, the President has directed Mr. McGahn not to appear at the Committee’s scheduled hearing on Tuesday.”

Amash v. Trump

In a series of tweets on Saturday, Rep. Justin Amash (R-MI) announced that after reading the Mueller report in its entirety, he concluded that Trump “engaged in impeachable conduct,” making him the first Republican member of Congress to raise the specter of impeaching the President. Trump took to Twitter on Sunday, calling Amash a “loser” and a “total lightweight.”

Congressman Amash put out another series of tweets on Monday countering a common Republican talking point that Trump couldn’t have obstructed justice because there was no underlying crime of conspiring with the Russians. “If an underlying crime were required, then prosecutors could charge obstruction of justice only if it were unsuccessful in completely obstructing the investigation. This would make no sense,” Amash wrote.

As his closest allies in the GOP have coalesced around Trump over the last two years, Amash continues to be fiercely critical of the President, earning him the title of “the loneliest Republican in Congress.” Politics blogger Jim Newell sees Amash’s support of impeachment as an anomaly that is unlikely to trigger similar reactions from other Republican lawmakers.

The President’s finances

The New York Times reports that in 2016 and 2017 Deutsche Bank’s anti-money-laundering specialists identified potentially suspicious transactions involving legal entities controlled by President Trump and his son-in-law, Jared Kushner, but the bank’s executives rejected the compliance team’s advice to submit a Suspicious Activity Report (SAR) to the Treasury Department’s financial crimes unit.

Former bank employees told the Times that Deutsche Bank executives had a pattern of “rejecting valid reports to protect relationships with lucrative clients,” such as Trump and Kushner. Trump attacked the Times’ reporting, calling the story “phony” and disputing the paper’s characterization of his relationship with the bank.

The release of Trump’s 2018 annual financial disclosure form provides a glimpse of Trump’s finances: the President claimed $434 million in income, the majority generated from his golf courses around the world, and reported at least $315 million in loans. Jordan Libowitz, spokesman for Citizens for Responsibility and Ethics in Washington, a watchdog group, raised concernsabout the President’s debt: “[h]e owes a lot of money…[w]e don’t know exactly how much, but it’s a huge amount. And when you own that much, there are questions about how you can be influenced.”

President Holding Get Out of Jail Card Isolated on White Background.

Pardons for war criminals

The Trump administration is reportedly considering pardons for several American military members charged with or convicted of war crimes, including U.S. Navy SEAL Special Operations Chief Edward Gallagher who is due to stand trial later this month for allegedly shooting unarmed civilians and killing a prisoner. Trump intends to issue the pardons on Memorial Day, requesting that the Justice Department and the appropriate military branches expedite the required paperwork. The view among some conservatives is that the troops in question have been “unfairly punished for doing their job.”

Waitman Wade Beorn, a historian and an Iraq war veteran, writes in The Washington Post that “[w]hen Trump champions war criminals as brave patriots who are simply victims of political correctness, he seems to push for a climate that condones unethical and criminal behavior.”

What else?

  • In newly-released transcripts of roughly 15 hours of Michael Cohen’s closed-door testimony before the House Intelligence Committee in February and March 2019, Cohen alleges that prior to his 2017 Congressional testimony, Trump’s personal lawyer Jay Sekulow encouraged him to testify falsely that negotiations to build a Trump Tower in Moscow had ended in January 2016. Cohen also informed lawmakers that Sekulow told him that pardons were under consideration for him and other possible witnesses. House Democrats are now investigating whether Sekulow and other Trump attorneys influenced Cohen’s 2017 testimony.
  • Treasury Secretary Steven Mnuchin defied a House Ways and Means Committee subpoena for Trump’s tax returns, claiming that the request “lacks a legitimate legislative purpose.” In response to Mnuchin’s refusal, Committee Chairman Richard Neal issued a statement saying that “the law provides clear statutory authority” for the Committee to “receive access to tax returns and return information,” and that he is “consulting with counsel on how best to enforce the subpoenas moving forward.”
  • SDNY prosecutors are examining “tens of thousands” of documents recently turned over by Trump’s Inaugural Committee. Prosecutors are looking into whether any of the donations received by the Committee were misspent, utilized to improperly benefit insiders or came from foreign donors in violation of campaign finance laws.
  • Bill Barr told The Wall Street Journal that the probe into the origins of the investigation into Russian interference in the 2016 elections could result in rule changes for the FBI’s counterintelligence investigations of political campaigns. Barr claimed that “government power was used to spy on American citizens,” and that the investigation—led by Connecticut U.S. Attorney John Durham—is necessary to ensure that government officials did not “put their thumb on the scale” during the 2016 election. Barr further defended himself in an interview with Fox News, saying that House Speaker Nancy Pelosi’s accusation that he lied to Congress is “a laughable charge” that was “made to try to discredit” him.
  • On Monday, the Supreme Court declined to take up a case challenging a Massachusetts law banning for-profit companies from making political contributions. By refusing to hear the case, the Court turned down the opportunity to expand businesses’ rights to donate to political candidates and causes. In the landmark Citizens United v. FEC decision in 2010, the Court held that political spending is a form of free speech that is protected under the First Amendment and that the government cannot prohibit it, although certain restrictions apply.

Stay Informed,

Adrienne Cobb & the CAFE team

We hope you’re enjoying the CAFE Brief. Email us at [email protected] with your suggestions of articles and analysis of legal and political news. We look forward to your feedback as we continue to expand CAFE content.

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