A Couple of Tuesdays Ago…
President Trump went off-script recently to publicly complain about his legal fees and one doesn’t know whether to laugh or cry.
A couple of Tuesdays ago Trump disputed the notion that he’s profiting off the Presidency, arguing instead that lawsuits alleging he’s violated the Emoluments Clause of the Constitution amount to “presidential harassment” and are costing him significant legal fees and he’s loving it.
Trump now threads ‘presidential harassment’ regularly into his press briefings and campaign speeches, almost to the point of being a replacement mantra for “no collusion” — “no obstruction.”
As for how much his legal fees are costing him — there is no way of telling since the public does not have access to his tax returns, bank accounts or accounting records. Each is subject to a Congressional subpoena which the President has used every legal means at hand in court to successfully block disclosure to date. In one fast-moving court case, the President’s personal attorney William Consovoy has filed motions blocking Mazars USA — the Trump Organization accounting firm from complying with a Congressional subpoena from the House Oversight Committee.
The Mazars subpoena for financial records regarding Trump’s business stemmed from Michael Cohen’s(Trump’s ex-personal attorney) scintillating Congressional testimony relative to Trump’s perceived situational ethics revolving around the alleged manipulation of corporate and personal financial statements relative to either obtaining major bank loans, and/or minimizing the payment of property taxes by, and for, his businesses.
Federal District Court Judge Amit Mehta emphatically denied Consovoy’s motion to block Mazar’s subpoena compliance. Mehta’s decision was then appealed to the Second Circuit Court of Appeals. Various media reports indicate that appellate briefs and arguments by Consovoy have not been particularly persuasive and the court solicited a legal opinion from DOJ on the issues.
Barbara McQuade ex-US Attorney for the Eastern District of Michigan informs that such a solicitation by the Courts for a legal opinion by DOJ is not unusual. “I think they generally think that DOJ has good lawyers, who are independent and objective(?) and who can help shed light on an issue. Sometimes it is called a “statement of interest.”
It is noted here however that the American taxpayer pays for any legal work performed by DOJ and not President Trump. In this case, however, DOJ not only supplemented Consovoy’s legal arguments at no cost to Trump but doubled down for the most part and then added a twist.
The basic thrust of Consovoy’s argument which DOJ supported, is that there is a lack of legislative nexus to the Congressional subpoena for Trump’s financial records.
It should not surprise anyone that the lower courts are not swayed by Consovoy’s legal argument. The Supreme Court in a unanimous opinion on the issue, McGrain v. Daugherty, 273 U.S. 135, 174–175(1927), made clear that Congress did not have to specify what sort of legislation it was looking to adopt in launching an investigation — only that the subject was one that could lead to legislation. The Courts have regularly found that Congress had the power to regulate the President.
It is the twist that DOJ added that is of interest and I will call it the “burden on the President argument,” which Trump will no doubt hammer us all through the media at every opportunity by referencing it as ‘Presidential harassment.’
A couple of key sentences from the DOJ ‘statement of interest’ are referenced here:
In the brief filed Tuesday, the DOJ attorneys further argued that the document requests would place a burden on Trump and prevent him from being able to do his job.
“Even if Congress does not intend its subpoenas to burden the President, there is a serious risk they will, especially where there are myriad simultaneous inquiries,” the filing reads.
It should be noted the Mazars subpoena is what is known as a ‘third party’ subpoena. This means that Mazars USA will have to do all the work in terms of researching their files for documents referenced in the subpoena. It is likely that they have already done so and are awaiting a final court order to supply Congress with the records that were subpoenaed.
So the question has to be asked — where is the burden of a third party document subpoena on President Trump?
It is also noted that the IRS has received a third party Congressional subpoena for Trump’s tax returns and retrieval of those returns from the safe built especially for ‘the Donald’s’ tax returns at the IRS will not cause Trump any labor in terms of locating them. It should be noted for the record that DOJ has weighed into this court battle also.
So too with the Congressional subpoena to Deutsche Bank for Trump’s bank records. Deutsche Bank will have to spend the time and effort to retrieve all the documents requested by Congress once the legal battle over the subpoena is settled.
So where is the burden? How will the President be prevented from doing his job with regard to third-party Congressional document subpoenas?
DOJ concludes their statement of interest argument with the following — “Unlike investigations in criminal and civil proceedings, which are confined to discrete controversies and subject to various protective measures, congressional committees may issue successive subpoenas in waves, making far-reaching demands that harry the President and distract his attention.”
‘Harry the President’ — there it is! DOJ cannot really be suggesting that compliance of third party subpoenas is a distraction to the President! Can they? How would anyone measure Donald Trump’s baseline distraction level anyway?
This is not a serious legal argument but it does provide Trump with grist for his press briefings and provide a basis for his victimization media thrusts.
With regard to the strength of the ‘lack of legislative nexus’ legal argument, Barbara McQuade weighed in stating that — “I agree that the argument is weak since the subpoena is going to a third party. I also think that courts do not want to get into whether the reason stated by Congress is pre-textual, though they did so in the census case against the Administration. Congress has articulated a valid basis for the records, and I think it is likely to prevail over DOJ’s argument.”
Since DOJ provided him with the argument weak as it is, Trump shouldn’t be crying about his legal fees since this one was gratis.
And what about his ‘legal fees?’
The whole Mazars USA congressional subpoena issue was initiated by Trump’s old personal attorney Michael Cohen who testified about Trump’s direction to manipulate financial statements depending on the situation as noted above.
This is the same Michael Cohen who was directed by Individual-1 to make hush-money payments to Trump paramours a few weeks before the Presidential election and ended up pleading guilty in SDNY to Election fraud with regard to those payments.
The acting US Attorney when announcing the Cohen plea deal went out of his way to describe the false invoicing scheme entered into by Michael Cohen when he obtained reimbursement from Trump and the Trump Organization for the hush-money payments Cohen fronted, by submitting fictitious invoices characterizing the expense as ‘legal retainer’ or legal fees, when the fact is — no legal fees were involved.
Page 14 of the Sentencing memorandum for Cohen details the scheme thusly:
“Executives of the Company decided to pay the $420,000 in monthly installments of $35,000 over the course of a year.
At the instruction of an executive for the Company, Cohen sent monthly invoices to the Company for these $35,000 payments, falsely indicating that the invoices were being sent pursuant to a “retainer agreement.” The Company then falsely accounted for these payments as “legal expenses.” In fact, no such retainer agreement existed and these payments were not legal expenses — Cohen, in fact, provided negligible legal services for Individual-1 or the Company in 2017 — but were reimbursement payments.”
The mind boggles as to just how these phony ‘legal fees’ were handled on the potentially cooked company books, and how they may have flowed through to tax returns. SDNY announced recently they had shut down the Michael Cohen case so that is one less matter distracting the President, or in this case Individual-1.
Except for the fact that the Manhattan DA announced that their office has decided to investigate the matter. This is not the Emoluments case. This is not just another Congressional investigation. This is a criminal investigation.
The New York Attorney General will not be constrained by any OLC opinions immunizing the President from indictment nor will they be particularly concerned about constitutional issues surrounding subpoenas and separation of powers between branches of the Federal government. Nor will they be concerned about any burden to the President or if he may feel a bit distracted by their investigation.
New York State possesses a prosecutable crime under their purview with regard to falsification of accounting of business books and records. This can be prosecutable as either a Misdemeanor or Felony if another crime(e.g. Tax evasion or Money Laundering) was facilitated by the cooking of the books.
DOJ will not be requested to weigh in on the New York State criminal investigation and prospective prosecution of Donald Trump and/or the Trump Organization and pertinent executives potentially involved.
The White House Counsel’s office will not be asked for their legal advice since their allegiance is to the office of the Presidency and not the person who is President.
So Mr. Trump might be right. There could, in fact, be a substantial albeit human cost to President Trump in terms of ‘legal fees’ after all and it is not likely that anyone will be laughing about it or ‘loving it’ as the President put it Tuesday.
MCC is not in the President’s future but Rikers Island where Paul Manafort currently resides — could be.