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How NOT to Fight a Subpoena, White House Style

By William Vogeler, Esq. on May 07, 2019

In law school, they don't really teach students how to deal with subpoenas. That learning is left for the school of hard knocks.

That explains why so many attorneys enter practice ill-prepared for the work. If it weren't for paralegals and GPS, some associates couldn't find their way to the courthouse. On the other hand, you would expect big time lawyers to know better when it comes to such tasks. Take for instance, White House lawyers.

Subpoenas 101

Ian Millhiser, author of Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, calls them like he sees them. Writing for ThinkProgress, he said President Trump's lawyers don't know how to handle a subpoena. They sued to stop Deutsche Bank from complying with subpoenas from Congress. "Here's a pro tip for lawyers: if you are going to ask a court to fundamentally alter the balance of power between the legislative branch and the judiciary, it's a good idea to accurately describe any Supreme Court cases you rely upon," he wrote. "It's a bad idea to tell the court that a case that absolutely eviscerates your legal argument is the best thing you have going for you."

By the way, it's easy for commentators to say that kind of thing in the court of public opinion. They don't have to follow the same rules as lawyers. As Register editorialist Alan Bock said: "It's our job to come down after the battle and kill the wounded."

Millhiser says the case that "absolutely eviscerates" the President's argument is Eastland v. U.S. Servicemen's Fund. You can read it and make your own decision, but ultimately only the court's decision matters. They don't always teach that in law school either.

Eastland, 1975

In Eastland, the Supreme Court said that Congressional subpoenas were "immune from judicial interference." The justices explained that "once it is determined that Members are acting within the 'legitimate legislative sphere' the Speech or Debate Clause is an absolute bar to interference." Trump's lawyers argue that the subpoenas seeking his financial records are not within the "legitimate legislative sphere." The subpoenas "seek to investigate events that could not possibly lead to legislation within the Intelligence or Financial Services Committees' statutory jurisdiction and constitutional authority." But that's not right, says Millhiser.

"The question isn't whether Trump’s financial records will themselves reveal information that will lead to congressional legislation, the question is whether those records might inform the legislative process more generally -- and there's really no question that they do," he argues. Forget for a moment that he is talking about a case that is almost 50 years old. So is U.S. v. Nixon, which held the president could not avoid a subpoena for tape recordings in the Watergate scandal.

We all know how that ended.

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