Judge Amit Mehta is the anti-Scalia. Calm and unfailingly polite. Honest about his concerns and seemingly quite open to the arguments of legal counsel. The hearing Mehta held Tuesday in Trump v. Committee on Oversight and Reform featured none of the posturing that characterizes so many Supreme Court hearings.
If you only paid attention to Judge Mehta’s tone, you’d think he was being nice to Trump’s lawyers.
But the substance of the hearing was a disaster for Trump’s efforts to resist congressional subpoenas digging into his finances. At one point, Mehta warned that, under Trump lawyer William Consovoy’s sweeping legal theory, congressional investigations into Watergate would have been unconstitutional. At another, the judge suggested that Congress might have the inherent power to investigate the president in order to inform the public of potential misconduct.
Judge Mehta did ask probing questions of Doug Letter, the lawyer defending a subpoena from the House Committee on Oversight and Reform, but the bulk of those questions seemed to be probing how Mehta would write an opinion ruling against Trump — not who should actually prevail.
Nothing is certain until Mehta releases his opinion (and, even then, that opinion will need to survive appeal). But Judge Mehta appears likely to rule in favor of congressional oversight. More importantly, he seems likely to rule quickly, making it more difficult for Trump to prevent oversight by simply running out the clock.
The issue in Trump is a subpoena to Mazars USA, an accounting firm that worked for Trump and his companies. The House is seeking various Trump financial documents from the firm, and the firm says it will remain neutral in this dispute. Thus, Trump needs a court order preventing Mazars from complying with the subpoena, or Mazars appears ready to comply.
Trump’s primary argument is that a congressional committee must act within the “legitimate legislative sphere” — or, as Consovoy repeatedly put it during Tuesday’s hearing, Congress cannot merely seek to engage in “law enforcement” when it issues a subpoena.
Yet, as Mehta noted during the hearing, the question of whether Congress is acting within the legislative sphere is not a particularly high bar. At one point, Mehta quoted from a 1927 Supreme Court decision suggesting that a subpoena is valid if it concerns a matter “on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.” At another, Mehta asked whether he should follow lower court decisions indicating that a congressional subpoena is valid unless it is “plainly incompetent” to a legislative inquiry.
By this standard, the subpoena seeking Trump’s records is clearly valid. Among other things, it could reveal whether Trump lied on legally mandated financial disclosure forms — something that could prompt Congress to strengthen the laws governing such disclosures. It could also reveal whether Trump has a financial conflict of interest that influences his negotiations with Congress.
It wasn’t even clear, moreover, that Mehta bought Consovoy’s argument that Congress cannot investigate potential misconduct by the president for its own sake. Congress, after all, has impeachment power. And it is tough to know whether a public official should be impeached if Congress cannot investigate that official’s actions. (It is worth noting Mehta also suggested at one point that Trump could not be impeached for criminal misconduct he engaged in prior to taking office.)
The smart money suggests that Mehta will rule against Trump.
The most important part of the hearing, however, likely came at the very end, when Mehta informed counsel he would keep the record in this case open until Friday, and then would consider the case fully submitted and ready for a ruling. He said he would not accept additional briefing, and appeared very interested in resolving the entire case on the merits — rather than issuing a preliminary decision that could allow a full trial to stretch on for months or years.
That’s bad news for Trump, who needs a court order quashing the subpoena to prevent Mazars from complying with it (Mehta issued a temporary order blocking the subpoena while he considers the case, but the judge appears eager to resolve the case and dissolve that temporary order).
Thus, the real action in this litigation is likely to involve requests for stays. Will Mehta stay a decision against Trump while appeals are pending? If Mehta does not, will a higher court do so? Will appeals courts proceed with the same urgency that Mehta has shown? And will a highly partisan Supreme Court reach down to protect Trump, even if the law says it should not?
The earliest stage of this litigation looks unlikely to go well for Trump. That’s good news for anyone who believes presidents should not be immune from scrutiny.