07 Jun What If?*

What If?

What might a seminal Constitutional Crisis look like? We’re talking hypothetically, of course.

It might start something like this:

The House Committee on Oversight and Reform, the House Permanent Select Committee on Intelligence and the House Committee on Financial Services subpoena the President’s, his family’s and his companies’ tax returns, communications and financial records from Mazars (the Trump Family’s accounting firm), Deutsche Bank and Bank One (the Trump Family’s bankers). In order to prevent the House Committees from accessing those files, President Trump, his family and his family’s companies ask the Federal courts to quash the subpoenas, arguing that “[t]he subpoenas were issued to harass President Donald J. Trump, to rummage through every aspect of his personal finances, his businesses and the private information of the president and his family, and to ferret about for any material that might be used to cause him political damage. No grounds exist to establish any purpose other than a political one.” In addition, what if the House Ways and Means Committee were to subpoena the Internal Revenue Service to produce the Federal tax returns filed by Trump and his businesses and the Treasury Department were to refuse to turn over those tax returns, the Trump Family’s lawyer explaining that the subpoenas exceed Congress’ authority, are overbroad and, further, that the law is “clear” that Congress “cannot cross the line into law enforcement activity.”

Not surprisingly, this is precisely what has happened … so far.

Why would the Trump Family try to prevent its accountants and bankers, as well as government employees, from turning over subpoenaed tax returns and business documents?

There are three possible categories of reasons.

The first might be precisely what the Trump Family has argued: that Congress is overreaching and that there are sound legal and/or Constitutional reasons why discovery of their private and business records are not within Congressional subpoena authority.

The second might be that the information sought by the Democratically-controlled House might/would be embarrassing to the Trump Family and/or the President and/or that Trump might lose votes in the 2020 Presidential race if the materials were publicized … and that there exist sound legal and/or Constitutional reasons that protect those materials from Congressional scrutiny.

The third might be that the tax and/or transactional information sought by the House would reveal wrongdoing that could expose the President and/or members of his family to criminal prosecution – for example, that the tax returns provide evidence of tax evasion or that the Deutsche Bank files provide a trail of money laundering or that the Capital One records reveal that Trump received payments from Russia during the 2016 Presidential election etc.

How is the current judicial process likely to play out?

If the Trump Family were to prevail in its efforts to quash the subpoenas, there would be no basis to hypothesize a Constitutional Crisis. Speculation about the contents of the Trump Family’s tax returns and business files would be irrelevant and would continue to be merely that … speculation. In order for the courts to reach that conclusion, they would have to rule that there are no Congressional or judicial checks and balances on the powers of a President other than by impeachment … or that Congress does not have the legal Constitutional authority to investigate a President … or that Congress would have to present cogent reasons to investigate a President that the courts then would have to affirm and that each of the bases set out by the various House Committees is insufficient. However, legal scholars believe that any such outcome is legally nonsensical exceedingly unlikely. It would require the Federal courts, including the Supreme Court, to ignore reverse existing legal precedent. As a result, the expectation is that the courts will order Mazars, Deutsche Bank and Bank One to turn over the Trump Family’s records to the House Committees.

So far, that is precisely what two Federal District Courts have held. In a 41-page opinion, Judge Amit Mehta of the D.C. District Court (an Obama appointee) has done just that in the Mazars’ lawsuit, and Judge Edgardo Ramos of the Southern District of New York (also an Obama appointee) has ruled the same in the Deutsche Bank/Bank One lawsuit. Both cases are being appealed to the relevant Circuit Courts and it may be that both cases ultimately will wind up at the Supreme Court. (The Treasury Department’s withholding of the Trump Family’s tax returns has not yet reached the judicial decision stage.)

What might happen if both Circuit Courts were to uphold the District Court decisions? Although the Trump Family undoubtedly would ask the Supreme Court to rule on the matter, pursuant to the internal rules of the Supreme Court, the most likely result would be that the Supreme Court would decline to do so. In that event, the decisions of the two Circuit Courts would be final.

However, if the two Circuit Courts were to reach two different conclusions, the Supreme Court would be likely to hear both cases in order to determine which decision is correct. If that were to occur and if the Supreme Court were to decide to reverse the District Court holdings and find that the House has no right to examine the records of a sitting President, that (again) would end the matter.

But what if the Circuit Court decisions were allowed to stand or, even were the Supreme Court to hear an appeal, it affirms the lower court rulings?

What might happen then? What might President Trump do?

If the reason for his opposition to the subpoenas is to uphold the powers of an Imperial Presidency, he would shrug and allow the records to be examined by the House Committees. If his goal were to avoid embarrassment or the loss of 2020 votes, he would lambast the courts for reaching the wrong decision … and allow the records to be examined by the House Committees, placing every possible obstacle in their way. For example, he might order the Treasury Department not to cooperate with the House Ways and Means Committee and, in violation of court orders, to confiscate private tax return and other information from Mazar’s and Deutsche Bank before documents are turned over to the House.

What might be the consequences of defiance of Congress and of the Federal courts? What might happen then??

And what might happen if the Trump Family has immoral corrupt reasons for preventing enforcement of the subpoenas??? What might happen if the President were to take extra-Constitutional steps to prevent Mazars, Deutsche Bank and Bank One from turning over the records???? – the President is, after all, responsible for all Federal law enforcement as well as being Commander in Chief of the Armed Forces. What if he were to order the Attorney General to deploy Federal agents or if he were to order Federal troops to confiscate the documents and destroy them????? What would happen if they refused to do so? What if they were to do so?????? As an explanation, the President might say that the courts and Congress had overstepped their Constitutional bounds, that he has been advised by his attorneys that a President has absolute authority to determine the limits of executive privilege (which is what he has been saying for some time now), and that the President is well within his Constitutionally-granted rights to take these steps??????? What if the Attorney General were to articulate those arguments as his conclusion of law … despite the contrary position taken by the House and affirmed by the Federal courts????????

What might happen then?????????

Finally (from a good friend)

The 2010 Darwin Award Winners:

Honorable Mention:

Paul Stiller, 47, and his wife Bonnie were bored just driving around at 2 A.M. so they lit a quarter stick of dynamite to toss out the window to see what would happen. Apparently they failed to notice that the window was closed.

Runner Up:

Kerry Bingham had been drinking with several friends when one of them said they knew a person who had bungee-jumped from a local bridge in the middle of traffic. The conversation grew more excited, and at least 10 men trooped along the walkway of the bridge at 4:30 AM. Upon arrival at the midpoint of the bridge, they discovered that no one had brought a bungee rope. Bingham, who had continued drinking, volunteered and pointed out that a coil of lineman’s cable lay nearby. They secured one end around Bingham’s leg and then tied the other to the bridge. His fall lasted 40 feet before the cable tightened and tore his foot off at the ankle. He miraculously survived his fall into the icy water and was rescued by two nearby fishermen. Bingham’s foot was never located.

The Winner:

Zookeeper Friedrich Riesfeldt (Paderborn, Germany) fed his constipated elephant 22 doses of animal laxative and more than a bushel of berries, figs and prunes before the plugged-up pachyderm finally got relief. Investigators say ill-fated Friedrich, 46, was attempting to give the ailing elephant an olive oil enema when the relieved beast unloaded. The sheer force of the elephant’s unexpected defecation knocked Mr. Riesfeldt to the ground where he struck his head on a rock as the elephant continued to evacuate 200 pounds of dung on top of him. It seems to be just one of those freak accidents that proves … Shit Happens.

*┬® Copyright 2019 by William Natbony. All rights reserved.