Congress can have access to eight years of Trump’s tax records, appeals court orders
WASHINGTON — A full federal appeals court on Wednesday let stand an earlier ruling that President Donald Trump’s accounting firm must turn over eight years of his financial records to Congress, bringing the case to the threshold of a likely Supreme Court battle.
In the latest of a string of court losses for Trump over his uncompromising vow to fight “all” subpoenas from Congress, the U.S. Court of Appeals for the District of Columbia rejected his request that it rehear a case in which he challenged the subpoena to the firm, Mazars USA. A panel of the court had sided with lawmakers in that earlier ruling.
The president will now appeal to the Supreme Court, said a lawyer for Trump, Jay Sekulow. If the justices take the case, as seems likely, it would add another blockbuster case over separation of powers to the court’s current term, which ends in June — in the middle of the presidential election campaign.
“In light of the well-reasoned dissent, we will be seeking review at the Supreme Court,” Sekulow said in a statement.
Lawyers representing Trump had argued that Congress had no legitimate legislative authority to seek his business records because the panel seeking them, the House Oversight and Reform Committee, was primarily trying to determine whether he broke existing laws — not weighing whether to enact a new one.
Lawyers for House Democrats rejected that argument, maintaining that it was well within Congress’ constitutional authority to seek the records — both as a matter of oversight and as it considered whether new presidential ethics and financial disclosure laws are necessary.
A three-judge appeals court panel in October rejected that sweeping argument and upheld Congress’ authority to issue the subpoena by a 2-1 vote. But Trump petitioned the full court to erase that ruling and reconsider the case. The court on Wednesday rejected his request, 8-3.
The case was set in motion before House Democrats announced and then voted to say that they were engaged in an impeachment inquiry, so whether their constitutional authority to investigate potential presidential misconduct for the purpose of considering whether Trump should be removed from office has not been part of the legal arguments in the case.
The committee sought the records after Democrats took control of the House in the 2018 midterm election, and after it came to light that Trump had failed to list on his ethics disclosure forms a debt that he owed and then repaid to his former lawyer and fixer, Michael Cohen.
Cohen had fronted a hush payment to a pornographic actress, Stormy Daniels, just before the 2016 election to induce her to keep quiet about an affair she claimed to have had with Trump. He has denied the relationship.
Cohen also testified before Congress that Trump fraudulently changed the value of his assets for different purposes, like inflating their value on loan applications but deflating them on tax filings. (Cohen was separately convicted of lying to Congress in earlier testimony.)
The eight judges in the majority included seven appointed by Democratic presidents, Bill Clinton and Barack Obama. One, Judge Thomas Griffith, was appointed by President George W. Bush, a Republican.
The three judges who dissented were all appointed by Republican presidents: both of Trump’s appointees on the bench, Gregory Katsas and Neomi Rao, the latter of whom had been the dissenting vote in the earlier panel decision. The third was a judge appointed by President George H.W. Bush, Karen L. Henderson.
None of the judges in the majority filed a new opinion supplementing the panel’s ruling. Judge David S. Tatel had written that the judges on the panel concluded that the subpoena to Mazars is valid because “the public record reveals legitimate legislative pursuits, not an impermissible law enforcement purpose, behind the committee’s subpoena.”
Katsas, who was Trump’s deputy White House counsel before Trump appointed him to the court in December 2017, wrote a brief opinion dissenting from the court’s decision not to rehear the case, which Henderson joined.
He wrote that if “one committee of one House of Congress” can compel a president to disclose personal records whenever it conceivably could pass legislation regarding the presidency, it would pose a serious “threat to presidential autonomy and independence.”
Rao was the head of the Office of Information and Regulatory Affairs in Trump’s White House before he appointed her to the bench in March. She separately wrote a brief opinion reiterating the thrust of her longer dissent in the panel decision.
Essentially, she said that because Congress was not relying on its impeachment power when it issued the subpoena, its legislative power alone was insufficient to justify the “unprecedented” request.
In her new opinion, she also rejected House Democrats’ argument that the question of which kind of legal authority it was invoking was no longer of “practical consequence” because two weeks ago, the full House voted for a resolution endorsing the impeachment investigation, which it styled as “ongoing.” She noted that the House has not reissued its subpoena for the financial records since then and argued that the resolution did not affect the legal basis for the committee’s earlier demand for Trump’s accounting records.