The Judges Who See Through Trump’s B.S. The New Republic / by Matt Ford

The Judges Who See Through Trump’s B.S.

The New Republic / by Matt Ford / 9d

Rarely does a week pass without a federal judge ruling against President Donald Trump in one case or another. Last week, the president faced defeats on two fronts. A federal judge in Washington, D.C., ruled that the House could obtain Trump’s records from his longtime accounts. Then a federal judge in California halted his efforts to redirect federal funds to build his border wall without congressional approval.

In each case, the judges spurned Trump’s extreme views of presidential power and his warped depiction of events. This isn’t surprising in and of itself. The lower federal courts have routinely seen past the administration’s smokescreens on cases ranging from the Muslim ban to the Census’ citizenship question. I noted last month that the Supreme Court has often vindicated Trump by embracing his pretextual justifications and alternative histories. The latest slate of rulings shows how the lower federal courts are still capable of seeing through his smokescreens—and, by contrast, highlights the Supreme Court’s inability to do so.

In the D.C. lawsuit, Trump filed a challenge last month to block a House Oversight Committee subpoena for accounting firm Mazars USA. William Consovoy, one of the president’s private attorneys, cast the president as the hapless victim of an “all-out political war” by the “Democrat Party.” He told the court that the subpoena lacked a “legitimate legislative purpose” to inquire into Trump’s finances and that their efforts usurped on the executive branch’s law-enforcement powers.

“Instead of working with the president to pass bipartisan legislation that would actually benefit Americans, House Democrats are singularly obsessed with finding something they can use to damage the president politically,” he argued in the initial complaint in April. He also made the extraordinary argument that Congress could not investigate whether the president (or anyone else, for that matter) had committed a crime because that was the role of the executive and judicial branches. During oral arguments earlier this month, Consovoy told Judge Amit Mehta that Congress’ inquiries into Watergate and Whitewater had been unconstitutional.

The judge took a different view of congressional oversight: “It is simply not fathomable that a Constitution that grants Congress the power to remove a president for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct—past or present—even without formally opening an impeachment inquiry.” Though Consovoy argued the investigations into Richard Nixon and Bill Clinton had violated the separation of powers, Mehta concluded that those sagas supported the House’s case now. “Congress plainly views itself as having sweeping authority to investigate illegal conduct of a president, before and after taking office,” he explained. “This court is not prepared to roll back the tide of history.”

Mehta also dismissed Consovoy’s claims that Trump is the victim of congressional harassment. Consovoy had cited various Democrats’ campaign statements about how they could use oversight powers to rein in the Trump administration, but the judge said drawing any conclusions from those statements would be a “dubious evidentiary proposition given that these individuals do not control the actions of the Oversight Committee, and that they “make no material difference” in his analysis. “In short, as long as there is a facially valid legislative purpose for the investigation, Congress acts within its constitutional authority,” he wrote. “That is the case here.”

The other case involves a legal challenge to Trump’s emergency declaration earlier this year that redirected federal funds to build the border wall after Congress refused to authorize more money for it. The ACLU filed a lawsuit on behalf of the Sierra Club and the Southern Border Communities Commission in February, arguing that the Trump administration’s fiscal legerdemain violated Congress’ power to appropriate federal money. In his ruling on Friday, Judge Haywood Gilliam sided with the plaintiffs.

The Trump administration had justified the shifting of federal funds in this case under two key provisions. They argued that Section 8005, a provision in the latest defense appropriations bill, allows the Department of Defense to shift its appropriated funds to pay for projects based on “unforeseen military requirements,” so long as Congress hasn’t already rejected the expenditure itself. A second provision in federal law known as Section 284 allows the Department of Defense to fund “counterdrug activities” undertaken by other federal and state agencies.

In February, after Trump declared a national emergency and ended the government shutdown, the Department of Homeland Security requested Section 284 funds to build barriers across “drug-smuggling corridors” on the border. DOD used Section 8005 to transfer $1.5 billion in other military funds to the Section 284 fund to pay for the request—essentially robbing First Lieutenant Peter to pay Border Agent Paul. The Trump administration told the court that the request counted as “unforeseen military requirements” because it wasn’t specifically outlined in the January 2018 budget request, even though everyone knew Trump had taken the unusual step because he was losing a political showdown with Congress over it.

Gilliam rejected Trump’s version of events. He noted that Trump had publicly demanded—and Congress had rejected—more border-wall funding on a regular basis. “[The administration’s] argument that the need for the requested border barrier construction funding was ‘unforeseen’ cannot logically be squared with the Administration’s multiple requests for funding for exactly that purpose dating back to at least early 2018,” he wrote. The judge quoted not only from the White House budget request last January, but also from Trump’s infamous vow to lawmakers last December that “if we don’t get what we want [for the wall], one way or the other ... I will shut down the government.”

The judge also took aim at the administration’s sweeping interpretation of its authority to shuffle around federal funds already allocated by Congress. He posited a hypothetical scenario in which DHS could wait to see if Congress appropriated money to a specific project, then request the necessary funds from the military if they didn’t. “Under this interpretation, DoD could in essence make a de facto appropriation to DHS, evading congressional control entirely,” Gilliam wrote. “The Court finds that this interpretation likely would pose serious problems under the Appropriations Clause, by ceding essentially boundless appropriations judgment to the executive agencies.”

The administration also took an unorthodox view of who controls the federal purse. In theory, only the legislature can appropriate funds for the executive branch to spend, but the administration suggested otherwise. “If Congress had wanted to deny DOD this specific use of that [Section 8005] authority, that’s something it needed to actually do in an explicit way in the appropriations process,” a Justice Department lawyer argued in a hearing earlier this month. “And it didn’t.”

“But it is not Congress’s burden to prohibit the Executive from spending the Nation’s funds: it is the Executive’s burden to show that its desired use of those funds was affirmatively approved by Congress,” Gilliam wrote, quoting James Madison in the Federalist Papers. “To have this any other way would deprive Congress of its absolute control over the power of the purse, ‘one of the most important authorities allocated to Congress in the Constitution’s “necessary partition of power among the several departments.”’”

Trump has already begun the process to appeal both decisions to the respective federal circuit courts of appeal. If he loses again at that stage, his last best hope would be the Supreme Court. Chief Justice John Roberts and his conservative colleagues have tended to favor Trump’s interpretations of the law and the events surrounding each dispute, no matter how pretextual or bad-faith they may seem. They may well do so again in these two cases—and that will be the final legal word on these matters, for now. But the sound rulings by federal judges like Amir Mehta and Haywood Gilliam show that the courts overall are doing their job to check a president who wishes he were king, even if the high court’s obsequious conservative justices are not.

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