(Bloomberg) -- Donald Trump’s lawyers were in a New York courtroom Friday trying to block Democrats’ access to financial records from Deutsche Bank AG and Capital One Financial Corp. -- and House Speaker Nancy Pelosi has much at stake over the outcome.
The president has been in a fight to keep his financial information private, especially since Democrats won control of the House in November. His lawyers went before a three-judge federal appeals court panel seeking to overturn a ruling that the banks had to comply with subpoenas issued by the House Intelligence and Financial Services committees.
A Trump victory would undercut Pelosi’s litigation-first strategy to put off a politically explosive decision on whether to impeach the president. It could make it impossible for her to continue fending off the growing demands from House Democrats to at least open an impeachment inquiry, calls that have been joined by several of the party’s 2020 presidential candidates.
So far, Pelosi has held to her go-slow approach as polls consistently show that the public doesn’t support impeachment at this point and Democrats can’t risk alienating voters in swing districts if they want to keep or expand their House majority.
Friday’s test of the speaker’s strategy came in an appeal by Trump’s lawyers to a ruling in May by U.S. District Judge Edgardo Ramos. They say the subpoenas in dispute, which call for records relating to Trump, his businesses and his family, are too broad and that the House is simply out to harass and embarrass him.
Pelosi says getting the records from these two long-time Trump lenders is among several House legal pursuits needed to build a stronger case for impeachment -- beyond former Special Counsel Robert Mueller’s findings in his report on Russian interference in the 2016 election.
The bank records could document foreign influence on the president and his family, including “money laundering, illicit transactions and foreign investments,” Pelosi said in a memo this month to fellow Democrats.
Friday’s hearing reflected that broader drama. The judges aggressively questioned both sides and granted each more than twice its allotted time. And the session ended in a remarkable standoff between the judges and the lawyers for Deutsche Bank and Capital One, who were repeatedly asked -- and repeatedly refused to say -- whether the banks even had tax records sought by the House subpoenas.
Can’t go there, said Raphael Prober, an attorney for Deutsche Bank, to a surprised trio of appellate judges.
“I’m simply not able to answer that question standing here today,” he said.
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The battle over the bank records is an early test in the courts of a developing contest between the executive and legislative branches that may go all the way to the Supreme Court, with all the maneuvering and delays that implies.
More than roughly half of the lawmakers in Pelosi’s 235-member caucus are already calling for impeachment or at least for the opening of formal impeachment inquiry -- and the number keeps growing.
This week, Ben Ray Lujan of New Mexico, the No. 4 House Democrat, joined that chorus, saying an impeachment inquiry “will continue to uncover the facts for the American people and hold this president accountable.”
Against this pressure, even a mid-level court defeat could undercut Pelosi’s insistence that the House is poised for victories before judges and should stay the course with her impeachment-delay strategy.
“Maxine Waters, Chair of Financial Services, and Adam Schiff, Chair of Intelligence, are winning in court in the Deutsche Bank case, seeking the president’s bank-account records,” she wrote in the memo to Democrats.
Pelosi also seized on a lower court ruling in favor of the Oversight and Reform Committee’s subpoena to an accounting firm, Mazars USA LLP, seeking the president’s financial records. But Trump’s lawyers last month asked an appeals court in Washington to reverse that too, contending that the panel was overstepping its oversight responsibilities.
Another front was opened last month, when the House Ways and Means Committee filed a lawsuit asking a federal court in Washington to force the Treasury Department and Internal Revenue Service to hand over the president’s tax returns for the past six years.
Pelosi wasn’t commenting through her office Thursday on Friday’s scheduled legal arguments.
But she and her House legal team have to avoid setbacks in the various court battles for Trump financial records, testimony and other information, according to Neil Kinkopf, a law professor at Georgia State University in Atlanta.
“A loss in the Second Circuit would be a major setback from every angle,” he said of the court that’s hearing Friday’s appeal regarding bank records.
Kinkopf said it would undercut Pelosi’s “go slow, we’re winning in the courts strategy” but also “it would be a real blow to those who want to move forward on impeachment, because it would deny, or delay their access to documents and testimony that seem crucial to mounting a credible impeachment proceeding.”
Some analysts doubt Pelosi really wants to pursue impeachment, which would likely end with the Republican-controlled Senate refusing to remove the president from office.
‘Winning’ by Losing
“Few people on the Hill seriously believe that Pelosi is seriously entertaining impeachment,” said Jonathan Turley, a law professor at George Washington University in Washington.
“If this is correct, Pelosi’s ‘winning’ strategy may be losing,” Turley said. “If she loses, she has burned the calendar for impeachment and not produced any further evidence to support articles of impeachment. Alternatively, if she wins, this goes to the Supreme Court and will be delayed into 2020,” when she can argue it’s too close to the election to act on impeachment.
But Pelosi has denied that she’s determined to avert impeachment, saying last month that her patience for litigation “isn’t endless.”
House Judiciary Chairman Jerrold Nadler of New York has argued that his panel’s pursuit of Trump’s “malfeasance” -- through subpoenas and in the courts -- already amounts to “formal impeachment proceedings.”
“We’re gathering all the evidence,” he said Aug. 8 on CNN. “And we will, at the conclusion of this, hopefully by the end of the year, vote articles of impeachment to the House floor. Or we won’t.”
In urging the appeals court to uphold the ruling demanding Trump’s bank records, the House Financial Services and Intelligence panels argued that they issued the subpoenas in support of legitimate congressional probes and that the requests for information are within Congress’s broad constitutional powers.
“The subpoenas are designed to obtain documents to inform the committees’ investigations, oversight functions, and legislative judgments,” and the district court was right to hold that they serve legitimate legislative purposes, the committees said.
But lawyers for Trump contend it’s overreach.
“The subpoenas seek documents reaching back more than a decade, cover individuals who have never held government office (including minor children), and seek virtually every financial detail that the institutions might have about plaintiffs’ private affairs,” they said in a brief filed with the appeals court.
(Updates with the events of Friday’s hearing in paragraphs 8-10.)
--With assistance from Patricia Hurtado.
To contact the reporters on this story: Billy House in Washington at firstname.lastname@example.org;Bob Van Voris in federal court in Manhattan at email@example.com
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