Thread by @ZoeTillman

The past week was all about the census (see: buzzfeednews.com/article/zoetil…) but we now return to the Summer of Subpoenas™: The DC Circuit will hear arguments at 9:30am in Trump's fight with House Dems over a subpoena to his longtime accounting firm. Previously: buzzfeednews.com/article/zoetil…

Arguments are getting started in the DC Circuit in the subpoena fight between Trump and House Dems. The judges are Tatel, Millett, and Rao. You can listen live here: uscourts.rev.vbrick.com/#/events/a0f9d…

Trump's personal attorney William Consovoy is up first — he begins by arguing that the House's rules don't give the committee power to subpoena the president personally for financial records, and, if there are constitutional doubts, the power should be construed narrowly

Tatel starts by unpacking Consovoy's args about the committee lacking power to issue the subpoena. Tatel says he thinks cases cited by Consovoy are different from this one, where they dealt with issues like subjecting prez to same standards as agency review and right to sue prez

Tatel asks re: whether there's a "clear statement" in House rules re: the committee's power to issue this subpoena, isn't that resolved by its jurisdiction over the Ethics in Govt Act? Consovoy says no, there has to be a clear statement about committee jurisidiction in the rules

Re: the constitutional avoidance issue, Rao notes that Trump isn't asserting exec privilege or immunity - so what is the constitutional interest of the prez? Consovoy says the big one is whether Congress has a legit legislative purpose in the subpoena (they argue they don't)

Millett asks how a subpoena to the accounting firm to produce docs in its possession would impede on Trump's ability to execute duties as president. Consovoy says the president still has a duty to deal with the issues coming out of that production

If the office of the president is implicated, why isn't DOJ here defending that, Rao asks (Millett notes DOJ was there for Clinton v. Jones). Consovoy said he couldn't speak for them, but b/c the subpoena went to Trump's accounting firm, made sense to bring in personal counsel

Tatel asks about the 4th reason Cummings gave for the subpoena, to see if Trump accurately reported finances. Why isn't that legit, he asks. Consovoy says it's law enforcement, looking for illegality. Tatel replies, isn't that what Congress seeks to do in amending legislation?

Consovoy args the court has to look at the "real object" of the subpoena. Millett presses Consovoy to articulate what standard courts should apply, why statements he cites control over other info from the committee. Consovoy says it's about looking evidence in its totality

Rao asks about precedent saying that there can be an incidental law enforcement purpose on the way to legislation. Consovoy says that it's a "primary purpose" test.

Millett asks (a few times) if, under Consovoy's legal theory, that means the House Oversight Committee lacks any power of oversight over the office of the president. Consovoy says yes, but adds they don't need to go that far to win here re: the subpoena

Millett pushes on the bounds of Consovoy's args, asking if he's saying the House lacks any oversight power over the office of the president. Consovoy says he's not saying Congress could never pass a law that touches the prez, but he's hard pressed to think of a valid example

This goes to the Q of whether there's a legit legislative purpose. Millett says to imagine the most corrupt president known to mankind - what law could Congress pass? Consovoy says it's difficult to think of one, noting courts even struggled with the "innocuous" Prez Records Act

Rao and Tatel ask why there isn't a link between records the committee requested from Trump's accountant and legislative purposes articulated. Consovoy says no relationship between whether Trump's disclosures were accurate and communications, notes, or engagement letters

Tatel is skeptical of this answer — if Congress thought prez was inflating or deflating assets, and wanted to see if current laws adequate to capture that, wouldn't comms and notes be relevant? Consovoy pivots, and says lawmaking can't turn on one individual

This gets Millett started — she presses Consovoy about Congress's ability to investigate an individual vs. an office in the fed govt. Can Congress undertake investigations to expose corruption? Consovoy says for agencies it can, but for the president, it cannot

Things get a little tense between Millett and Consovoy as she says it sounds like he's saying the president is immune from oversight. Consovoy says no, and again brings up the Prez Records Act. Millett asks for another example, Consovoy demurs, and Millett is unimpressed

An hour and 10 minutes after arguments started, Consovoy's round is done - both sides theoretically were given 30 minutes to argue, so the extent of questioning reflects the uphill battle Trump's position faces here before this panel (as well as the significance of this case)

House GC Douglas Letter is now up. Tatel begins by asking how much deference Congress should get. Letter argues for a lot. Tatel probes that, saying cases that articulated such deference in the past didn't involve the president - didn't that raise separation of powers issues?

Letter says that it doesn't matter who is on the other side of the litigation, the Speech or Debate Clause in the Constitution means members of Congress can't be questioned about how they carry out role as legislators. He says there can be court review of action, but it's limited

Millett and Tatel ask about significance of the subpoena going to a third party but where records involve the president. Letter says third party means little, if any, impact on duties of the prez, but court can't ignore that the president is involved

Rao asks about signifiance of Nixon v. GSA, which said prez had privacy interest in financial records. Letter said that's true, but still scenarios where the Prez Records Act would apply, for instance, if prez planned to lie in disclosures and asked WH aides to help do so

Millett asks how they write an opinion that accounts for the fact that the president is involved, per Letter's acknowledgement of that. Letter says it doesn't matter practically — that Congress has articulated a legitimate legislative purpose

Rao asks given lack of precedent for the committee issuing compulsory process (the subpoena) against a prez, doesn't that raise constitutional questions about whether it's allowed? Letter says no, and notes Trump created an unusual situation by not disclosing financial records

Rao asks about Consovoy's claim in a reply brief that the House forfeited args about the emoluments clause and GSA lease as being part of reason for committee probe. Letter says that's "absolutely and completely factually wrong" and reads excerpts from district court record

Tatel asks, if they find Cummings' 4th reason for the subpoena is valid (whether Trump accurately reported finances), do they need to look at the rest. Letter says they don't have to, but they help, and starts to address emoluments, and Tatel asks if they need to even get to that

Re: Trump's engagement letters with Mazars, Letter says it is relevant because it goes to the concept of "garbage in, garbage out" — understanding the scope of the accounting firm's obligations and responsibilities in looking at the other financial records

Re: whether Trump is violating the emoluments clauses, Rao asks what the connection is between that and seeing personal financial records. Letter says they'd need to know what Trump considers *his* assets with respect to the DC hotel

Rao presses, asking why gauging a violation of the emols clause isn't a subject for an impeachment inquiry — what is the legislative purpose that? Letter says Congress could look at its definition of emoluments, since Trump presents more difficult Qs than any modern prez

Millett has an exchange w/ Letter about why the committee gets to go back so far past Trump's presidency in asking for docs. Letter says they need to know when certain financial trends began/ended, whether things carried over, etc. Millett seems skeptical - why not 18, or birth?

Letter indicates there would be a line at some point in terms of what's pertinent, but he pointed to Trump's comments about being under audit for years, saying that shows he realizes these things carry over for years. If something disappears in the records, they need to know when

Rao and Letter have an exchange about whether the committee should handle things differently when they involve the prez. Letter says there could be a situation where a committee abuses power to the point of interfering with prez's duties. Rao Qs whether that puts the bar too high

Letter is done. His round also took an hour, and we saw a lot more engagement from Judge Rao - her questions reflected concerns about separation of powers issues and Congress interfering with the prez. Millett and Tatel seemed less skeptical, but not a clear slam dunk

And that's a wrap. Consovoy concluded rebuttal by saying the fundamental question is whether this is about Congress finding evidence of wrondoing or coming up with legislation, and it wasn't a "hard call" (they're arguing it's the former and that it's a problem)

There is no way to know when the court will issue its opinion, but given that they agreed to put the case on an pretty expedited schedule, I imagine they'll try to have something out as quickly as possible