Today, Explained - Subpoena season

Episode Date: April 26, 2019

Post-Mueller, President Trump is navigating a sea of subpoenas. He says he doesn't want his aides to testify, setting the stage for a showdown with the House. Vox's Dylan Scott explains. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Bank of America, Deutsche, Wells Fargo, Chase, the Iron Bank. There's all sorts of things you can call your bank. But Aspiration went with Aspiration because they want to like help you save money and maybe help you save the world. They're a financial partner that puts your conscience and the planet first. You can download the Aspiration app to open an account today. Bill and Scott, Politics Vox. The president spent the week raging about subpoenas from the Democrats. Well, the subpoena is ridiculous. I have been the most

transparent president and administration in the history of our country by far. And I thought after two years, we'd be finished with it. No. Now the House goes and starts subpoenaing. They want to know every deal I've ever done. These aren't like impartial people. The Democrats are trying to win 2020. Should we care or is this just like him yelling at the kid with the lawnmower? Well, we've got a government that's set up based on the idea of checks and balances. And one of Congress's chief priorities is providing oversight of the executive branch. So yeah, I think people should care if you think that it's important for Congress to be able to provide a check on the president, the White House and his administration. And we're approaching a situation here that a lot of scholars think is pretty remarkable,

where the president has almost said that he's not really going to cooperate with any of the investigations that they launched into him. So there have been like some major developments in this battle this week. What are they before we get into the details? Yeah, things really took off this week. Two important things happened. One was the president's lawyers filed a lawsuit against House Oversight Chairman Elijah Cummings where they tried to quash a subpoena that Cummings had filed for President Trump's personal financial records and business records from his accounting firm. Well, this is a completely political harassment.

I mean, anybody can see through it. Jerry Nadler, Schiff, Cummings, they've all prejudged the case a year ago. They're arguing now in federal court that the subpoena was a gross overreach of congressional authority and trying to get the courts to stop it from being enforced. House Democrats have said that they want to call several people who figured prominently in the Mueller report before them so that they can get public testimony on these issues. And President Trump gave an interview to the Washington Post and basically said he didn't want any of his aides, staffers, or former aides cooperating with House Democrats as they follow up on the Robert Mueller report, which is a pretty remarkable thing for the president to say.

Is this all happening because of the Mueller report, or was some of this stuff already ongoing? The big action has been on stuff related to the Mueller report and President Trump's personal finances. So, you know, the House Democrats have also instructed the IRS to provide several years worth of President Trump's tax returns. And the administration has been slow rolling that request. But President Trump's comments about prohibiting his aides or former aides from speaking before Congress was definitely targeted to the Robert Mueller investigation. And what exactly are all the subpoenas that he's ducking with regards to personal finances and the Robert Mueller investigation right now? The big one that he has explicitly said he doesn't want to comply with is this one that was issued by Elijah Cummings. Cummings sent a subpoena to this firm called Mazars that has done Trump's finances for a long time and said basically we want all of these documents related to the president's personal finances because there's been suggestions from Michael Cohen and from news reports that maybe the president has not always been on the up and up with how he's filed his taxes and that kind of thing.

And so now the president's attorneys are making a formal legal argument that this subpoena is invalid and that they shouldn't be required to actually comply with it. A different house committee filed a subpoena to a different bank, Deutsche Bank, requesting other financial records of the presidents. And Eric Trump basically signaled that they were ready to fight that as well. House Democrats have asked Don McGahn, the former White House counsel, to come testify before them in a follow-up to the Mueller report. And the White House, according to reports that came out this week, has said that it plans to fight those subpoenas. So some of this is in a weird gray area. Until Congress acts to try to enforce a subpoena, everybody's just kind of posturing. But on this Cummings subpoena that now the Trump folks have countersued to try to stop, that's where we have a real legal fight. And that's where the

administration has kind of drawn a red line and said, this is not something that we're willing to go along with. Were those all Cummings related, those ones you just mentioned? No. The subpoena that was filed to Deutsche Bank came from the House Intelligence Committee and Adam Schiff, who's obviously figured very prominently in the Mueller investigation. OK. But Cummings, as the chair of the House Oversight Committee, is obviously a prominent figure in all of these fights over oversight with the administration.

This administration has done everything in its power and used every means necessary to block the Congress from getting the information that we need to do our job. Not only are they blocking witnesses from coming forward, but they have not given us one document upon our request.

What about Mueller himself? Have they subpoenaed Mueller to come hang out? A collection of House chairs has subpoenaed the Mueller report. They want to get it without any redactions. This report ought to be exposed. We need to read every page of it, every shred of evidence behind it, everything. The CD, right, the original copy that hasn't gone through the William Barr filter. So I don't think they have actually issued a subpoena for Robert Mueller himself,

though I think they have indicated that they would like him to come and testify before them. And something that sometimes happens, it happened in the example with Trump's accounting firm, is entities like that sometimes say, like, would you please file a subpoena so that we've kind of been legally compelled to comply with your request? So maybe it ends up getting to that point with Mueller. I'm not sure. Or he might, as a government official, end up just testifying voluntarily. But they have sought out the full report without redactions through their subpoena power. Okay.

We don't know what Mueller is going to do yet. What about the president's former White House counsel, Don McGahn? He's a pretty big player here, yeah? So McGahn himself has not commented on the subpoena as far as I know, but the Trump administration has said, you know, through anonymous leaks to reporters that they plan to fight the subpoena that was issued for McGahn and other administration officials, and they will cite executive privilege in arguing that these folks don't have to testify before Congress. Is the president allowed to say something like, you know, my tax returns, Don McGahn, anything I touched in the past couple of years is executive privilege, and thus you can't touch it? So there are two things here. One, yes, there's just executive privilege,

and this kind of goes back to the Watergate days and Richard Nixon. The president does have some authority to say that certain information is privileged for national security reasons or for other reasons. And Cummings, is whether Congress's oversight authority is sort of unlimited or whether it needs to be tied to some kind of specific legislative intent. And so the Trump folks are arguing in their lawsuit trying to quash the subpoena into his personal financial records that there's no legislative endpoint here. Like Elijah Cummings is not going to write a law based on what he finds in Donald Trump's personal financial records. And so this is not a legitimate exercise of Congress's oversight authority. What's interesting is like that's sort of just an unanswered question by the courts at this point and why this case could end up being so important. I was listening to a podcast recently.

The Lawfare folks were talking about how the Supreme Court has never really said exactly how far Congress's oversight authority extends, whether they can just seek any information battle over exactly how much oversight Congress is able to exercise over the executive branch. And that's what makes this fight so important. The showdown between President Trump and Congress might feel really, really bad for American democracy, but for what it's worth, it's the latest in a long line. The origins of executive privilege and the partisan tradition of serving the White House subpoenas after the break on Today Explained. The bank formerly and also currently known as Aspiration has been featured in Forbes, the New York Times, and Money Magazine. The last time I talked to you about Aspiration, I said, like,

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Aspiration doesn't give any money to support the drilling of fossil fuels. Dylan, can you explain what it's like to get subpoenaed by Congress? What does that look like? A subpoena is just a piece of paper that tells you either you need to come testify before a congressional committee at X date and Y time, or you need to produce X, Y, Z documents by a certain deadline. It's meant to be sort of a flex, right? Like it's Congress saying like, hey, we have the legal power to compel you to produce information for us and you're going to do it. And how often do sitting White House officials or the president himself get subpoenaed? It's definitely a thing that happens. It happens a lot more, I'd say, when Congress is controlled by one party and the White House is controlled by another.

The first big subpoena fight was during the Watergate drama when Congress was looking into President Richard Nixon. But early in Ronald Reagan's administration, an EPA official was subpoenaed by Congress and ended up being held in contempt of Congress because the administration tried to fight it. When Newt Gingrich and House Republicans came into power during Bill Clinton's years, they promised and followed through on issuing subpoenas left and right. There were a couple of high profile subpoena fights during George W. Bush's administration and under Barack Obama. And obviously now President Trump and House Democrats find themselves at odds over the

same issue. So this is an escalation maybe. President Trump saying that he doesn't want any of his aides ever testifying before Congress is maybe on a different level than some of the fights we've seen before. But this is certainly not the first time that the executive and legislative branches have found themselves at odds. Yeah, you're saying this basically happens all the time. Yeah, it's a thing. It happens. Well, let's go back to some of those examples you cited and find out how things went previously. How did it go for Nixon? Ultimately, we all know how it played out for Nixon. Yeah. But how did Nixon handle it? The Watergate investigation was historically important because it was the first time that Congress actually sued the administration

to try to compel the administration to comply with a congressional subpoena. The president of the United States has told the Judiciary Committee, the House of Representatives, and the American people to go to hell. He has been contemptuous of our invitation to ask him to come forward and to shine some light on the criminal activities which took place in the White House. That was the first time that Congress had to go to the courts to try to compel the White House to comply with the subpoena and sort of opened up this new front where Congress and the White House could find themselves in court battling out whether or not the executive branch is actually required to comply with the subpoena that's been issued by Congress. That's really interesting, though. It was through the Watergate subpoenas and the investigation into Nixon, that executive privilege as a concept was even like invented. Yeah, basically. Um, there was the United States versus Nixon, um, Supreme court case,

which actually ended up finding that Nixon did need to, um, comply with much of what Archibald Cox, the special counsel was, was seeking. He needed to produce that information, but they did allow as part of that decision, the idea that there is some kind of executive privilege where the White House would be allowed to say, this information is out of bounds for national security reasons, or for a very limited set of other rationales. But that was where that whole idea was born out of was was Watergate. What did people say before that when they wanted to say, well, like the president just has a little bit of privacy

or ability or leeway? There was just a much different set of norms. Okay. It was just like, if Congress subpoenaed you, you were going to comply. Watergate and the way President Nixon decided to handle those investigations just sort of set a new sort of like adversarial norm

between the two branches. So what was the next big battle over executive privilege after Nixon? In 1982, House Democrats subpoenaed some information from the Environmental Protection Agency under Ronald Reagan. And Reagan and his EPA administrator refused to comply with that subpoena citing executive privilege. And so what the House did at that moment was they filed a motion arguing that the EPA administrator was in contempt of Congress for refusing to comply with their subpoena. But what happened was in order for somebody to be prosecuted for being in contempt of Congress, in this case it would have actually been Neil Gorsuch's mom who was in charge of the

EPA at the time. The Justice Department has to be willing to prosecute that person. And you can imagine why would Ronald Reagan's attorney general ultimately decide to prosecute Ronald Reagan's EPA administrator in order to appease House Democrats who are trying to get presumably some kind of information that the Reagan administration does not want to become public. And then things are basically peaceful until Donald Trump shows up? Yes. I mean, you know, so like, first of all, Congress, especially, you know, new majorities that are coming in in opposition to the White House, they love to flood the administration with subpoenas.

You know, like Newt Gingrich, after House Republicans took power in 1994, they ended up, I think there was one specific House chairman who issued more than a thousand subpoenas, you know, looking into like Whitewater and Travelgate and Vince Foster and all the stuff that had kind of preoccupied Republicans and their voters at that time. So like that's just – it's important I think to understand that like what House Democrats are doing right now is kind of what new House majorities do when they've just been elected in the midterms. But I think there are two other kind of telling examples. One is, back in the 2000s, Harriet Myers, under George W. Bush, was subpoenaed by Congress to come testify.

There was a whole scandal back then that's mostly been forgotten about whether there had been politically motivated firings of U.S. attorneys under President Bush's attorney general. In a move that has only further angered critics of the Bush administration, the White House has ordered former counsel Harriet Myers to defy a subpoena, calling her to testify before a congressional committee about the firing of eight federal prosecutors. House Democrats kept fighting through civil litigation to try to force Myers to come up and testify. But, like, it wasn't resolved until she was out of office and there was a new administration. And it was basically a moot point. And that happened again with Eric Holder, President Obama's attorney general. And House Republicans subpoenaed him trying to get a bunch of information on another mostly forgotten scandal, the Fast and Furious scandal that had to do with whether arms had gotten into the hands of Mexican drug cartels from American authorities. The Republican-led House of Representatives has voted to hold the Attorney General of the United States,

Eric Holder, in criminal contempt of Congress. Some Democrats, a lot of them, in fact, simply walked out of the House in protest just before the contempt vote. They refused to even vote. Holder ultimately did not comply with that subpoena and obviously did not decide to prosecute himself. And so House Republicans were left trying to fight it out in the civil courts. And that case also didn't resolve until Holder was a private citizen and became a moot point. So how does this current fight then compare to all these partisan fights we've had previously?

Is it the most dramatic escalation since, you know, you saw Nixon in the Supreme Court kind of creating this executive privilege idea? The presumption, I think, is that we might be heading towards another moment like that, whether it's on like Trump's tax returns and, you know, if the IRS, you know, Democrats, I think, in that case, think they have a really solid legal argument for soliciting Trump's tax returns. They've found this law that they think gives them pretty much blanket authority to ask the IRS for anybody's tax returns. And so if the Treasury Department ultimately refuses to comply as they have thus far, then like that case could very much end up going to court and then you know, maybe the Supreme Court weighing in on whether Congress is really allowed to solicit this kind of information or not. And maybe bring us to a point where we have to define a little bit more

how broad Congress's oversight authority is, which I think is like a really important question for our democracy. It's sort of like we have checks and balances, but like how, how much check do we want? The courts haven't spent a ton of time in part because they're reluctant to get involved, kind of defining how aggressive Congress can be in investigating the White House or an administration. And we may be barreling towards a landmark case where that question has to be defined a little bit more specifically. But we're also barreling towards an election. We are.

I mean, not really. But as Matthew Iglesias said on The Weeds, we're only nine months out from Iowa. Right. Is this going to get in the way of that? Will that leave House Democrats reluctant to pursue this further because they want to focus on the election? I don't think they see it as an either or composition, right? First of all, nine months is either a short or a long amount of time, depending on how you look at it.

A pregnancy. It is a pregnancy. It's going to be a subpoena, baby. I think House Democrats see it as sort of their duty, especially after two years of Republicans not really performing much oversight over the administration and also see like some political salience and sort of creating this image of a president who is sort of soaked in scandal and you know who there's all these sort of questions about possible corruption and so like

the more House Democrats are keep beating this drum the more that they can kind of take that message to the American people. And he in in turn, would like to keep reminding his base that like, hey, these Democrats are carrying out this hit job on me because they want to win the 2020 race. Yeah, he's great with a persecution complex. And this feeds right into that. Like, we saw it during the midterms last year, like, it was Republicans who were like ginning up the idea of impeachment. And like, if Democrats take the House, they're going to impeach Trump. Like, I think Republicans clearly see a value in sort of scaring the president's base with the threat of House Democrats investigating the president. And yes, clearly, you know, they see that as a kind of narrative that they can run Thank you. years old. If you want to celebrate the occasion, Vox recorded a pair of live podcasts this week in

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