SCOTUS, here we come: Trump loses appeal on tax records


This hasn’t been a good week for Donald Trump in court when it comes to keeping his income tax returns private. On Monday, a federal judge rejected Trump’s challenge to a Manhattan DA’s subpoena for his tax records, blasting Trump’s “repugnant” claim of absolute immunity while in office. The DC Court of Appeals bookended Trump’s week by ruling that his accounting firm must comply with a House Oversight Committee subpoena for the records, although the ruling left time for Trump and Mazars to appeal:

A federal appeals court ruled Friday that President Donald Trump’s accounting firm must turn over financial records requested by a House committee, a legal blow to the administration’s efforts to block congressional investigations of his finances.

The House Oversight and Reform Committee sent a subpoena to Mazars USA, in April asking for documents related to Trump’s accounts going back to January 2009. His lawyers sued to block the subpoena, arguing that Congress had no legitimate legislative purpose for getting the materials.

But in a 2-1 ruling, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said the committee “possesses authority under both the House rules and the Constitution to issue the subpoena, and Mazars must comply.”

The appeals court put a seven-day hold on the legal effect of its ruling, which will give Trump’s lawyers time to appeal. The president’s lawyers will undoubtedly fight the ruling, either before the full appeals court or by going directly to the Supreme Court.

Expect to hear quite a bit about the partisan split in this ruling, especially when it comes to confirming later appointments by Trump to appellate courts. The dissenting judge, Neomi Rao, was recently confirmed to the bench after her appointment by Trump. The two that ruled in favor of the House, David Tatel and Patricia Millet, got appointed by Bill Clinton and Barack Obama, respectively.

In this case, let’s start with the dissent. Rao argued that the House does not have the authority to act in a judicial manner unless and until they have formally authorized an impeachment inquiry. She accused the other two jurists of blurring that line without any precedent in support:

The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress’s impeachment power to support this subpoena. When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power. Throughout our history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government. I respectfully dissent.

The majority disagrees, insisting that requiring financial disclosure is a valid legislative purpose:

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In sum, we detect no inherent constitutional flaw in laws requiring Presidents to publicly disclose certain financial information. And that is enough. Without treading onto any other potentially fertile grounds from which constitutional legislation could flower, we conclude that given the constitutionally permissible options open to Congress in the field of financial disclosure, the challenged subpoena seeks “information about a subject on which legislation may be had.” Eastland, 421 U.S. at 508.

To the dissent, however, this makes no difference. Although acknowledging that the Committee is pursuing a “valid legislative inquiry,” the dissent insists that the Mazars subpoena is nonetheless invalid because it “seeks to investigate individual suspicions of criminality against the President,” an inquiry that “may be pursued only through impeachment.” Dissenting Op. at 44. In support, the dissent claims to rely on the “text and structure of the Constitution, its original meaning and longstanding practice.”

The purpose behind the demand, however, isn’t to craft legislation; as Rao points out, it’s to pursue impeachment, which is not a legislative function. The House has made that point increasingly explicit even as it attempts to avoid making it formal. If the House wants to require presidents to disclose their tax returns while in office, their first step should be to propose that in legislation, or at least pretend that’s the purpose of the demand for evidence. That would seem to be more the case when demanding subpoenas for private tax records for years when a president wasn’t in any elective office at all.

Of course, this is far from over. Pete Williams does a good job of breaking down the dispute for NBC and notes that Trump now has two choices. He can either appeal this to the full DC Circuit for an en banc ruling, or he can take it to the Supreme Court — where the balance at least appears to favor him. That appearance is precisely why the Supreme Court would rather rehash Roe than get involved in any way, but it seems highly likely that Trump would get the requisite four votes for a grant of cert when he appeals this ruling. At that point, the court might as well take all of the Trump tax-return actions and consolidate them, if for no other reason than to only have to do this once.

Prediction: For Christmas, John Roberts will ask Santa for a six-month supply of Pepcid and Excedrin.

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