Trump’s Lawsuit against Cummings May Not Be Successful—But That Might Not Be the Point

President Trump’s lawsuit against Congressman Elijah Cummings—to block a congressional subpoena seeking Trump’s financial records from his accounting firm, Mazars—may be smart politics.  Legally, it faces an uphill battle.

The Speech or Debate Clause of the U.S. Constitution makes it tough to avoid responding to a congressional subpoena.  As the Supreme Court has explained, “once it is determined that Members are acting within the ‘legitimate legislative sphere’ the Speech or Debate Clause is an absolute bar to interference.”

When it comes to issuing a subpoena in connection with a congressional investigation, all a Member needs to show is “that the investigation upon which the [committee] had embarked concerned a subject on which ‘legislation could be had.’”  At least in D.C.—where Trump brought his lawsuit—even if “Americans might suffer injustices (perhaps even unconstitutional ones),” so long as a subpoena is issued in a “procedurally regular manner,” the Speech or Debate Clause protects it.

The true purpose of President Trump’s lawsuit may be why his complaint reads more like a political document than a legal one.

The complaint describes the Democratic Party as in an “all-out political war” against the President—with “[s]ubpoenas as their weapon of choice.”  The lawsuit also identifies a who’s who of Democratic boogeymen (and boogeywomen), including Speaker Nancy Pelosi, Congressman Adam Schiff, and, of course, Congresswoman Alexandria Ocasio-Cortez—whose goal, according to the lawsuit, is to “make Trump’s life a living hell.”

Politics likely also played a role in the decision to name Cummings himself as a defendant in the lawsuit.  Trump could have just named his accountants at Mazars—and asked the Court to prevent the firm from producing the information Cummings demands.  Last year, that’s what Fusion GPS did when Congressman Devin Nunes sought records from its bank.  Because, if there’s a way to get around the protections the Speech or Debate Clause affords Members of Congress, parties typically give it a shot.

The decision to sue Cummings in D.C. may also indicate that the primary goal of the lawsuit is political, rather than legal.  The D.C. Circuit takes an expansive view of the Speech or Debate Clause.  The President may have had a better shot suing Mazars in New Jersey—where the accounting firm has an office and where the Third Circuit Court of Appeals appears open to looking into Members’ motives for issuing a subpoena.

That’s not to say this lawsuit isn’t smart politics.  If the intent of this lawsuit was to amplify President Trump’s strategy to turn House Democrats into his foil ahead of the 2020 election, it may already be paying dividends.  The Wall Street Journal, for example, wrote Monday afternoon that, “Trump Organization Sues House Panel’s Chairman Over Subpoena”—accompanied by a photograph of Cummings.

And none of this is to say that President Trump doesn’t put up a good legal fight.  The lawsuit puts quotes from individual Members to good use—hitting hard the contention that what the Democrats in the House really care about is scoring political points, not seeking to advance a legitimate legislative purpose.

But in a memo he wrote to members of his committee when he informed them he would be issuing his subpoena, Cummings explained that “the committee has full authority . . . to determine whether [President Trump] has undisclosed conflicts of interest that may impair his ability to make impartial policy decision, to assess whether he is complying with the emoluments clauses of the Constitution, and to review whether he has accurately reported his finances to the Office of Government Ethics and other federal entities.”

These would all seem areas in which legislation “could be had” and thus seemingly will provide the federal court in D.C. ample reason to dismiss President Trump’s lawsuit.  But that’s unlikely to be Trump’s measure of success.

April 23, 2019