Appeals court wary of Trump’s arguments for throwing out House subpoena of his financial docs

By CNN Newsource

Published December 13, 2021 2:27 PM

By Tierney Sneed, CNN

A federal appeals court sounded dubious Monday of arguments put forward by former President Donald Trump for why a House subpoena for his financial records should be wholly invalidated.

However, the DC US Circuit Court of Appeals also signaled at a hearing in the long-running case that the House Oversight Committee might not be entitled to all the Trump financial records — including his tax returns — it first requested from his accounting firm in 2019.

The case concerns the latest version of a subpoena from the House Oversight Committee that was already considered once by the Supreme Court in a 7-2 opinion the justices handed down last year. The justices rejected then-President Trump’s most extreme arguments for throwing out the subpoena. But they sent the case back down to lower courts to consider the demands under a four-part test they put forward for reviewing informational requests from Congress concerning the personal records of a sitting president.

On Monday, a panel of DC Circuit judges expressed significant skepticism of Trump’s arguments that even though he is no longer in the White House, he was entitled to the protections laid out by the Supreme Court when it was dealing with a House request for a sitting president’s personal records.

“We have a person who is now a private individual,” DC Circuit Judge Ketanji Brown Jackson told the Trump lawyer arguing the case Monday. “He was a private individual before he became president, and he is now back as a private individual, and you seem to be trying to carve out a special status for him as a former or post-president, that I really haven’t seen in the same way in the law.”

She and other judges on the panel pushed back on how Trump’s lawyer, Cameron Norris, was describing the Supreme Court’s previous decision in the case. Norris warned Monday of leverage Congress would have over a current president if lawmakers could threaten to subpoena his personal records once he leaves office.

“That doesn’t emerge from the language of Mazars,” Judge Sri Srinivasan said, referring to the 2020 Supreme Court decision, which Srinivasan said was focused on the burdens on a president’s time and attention.

“It seems like the burdens that were foremost on the [Supreme Court’s] mind, at least, were not the ones you’re referring to now,” Srinivasan said.

An unending legal war between an ex-president and the Democratic-controlled House

The hearing comes as the fight over the House Oversight Committee’s request for Trump financial documents has stretched on for more than two and a half years.

The House first issued the subpoena to Trump’s accounting firm Mazars USA firm in April 2019, prompting Trump to sue the firm to block release of the records. With the Supreme Court not issuing its ruling until July 2020, the follow-up round of litigation outlasted the Congress that issued the original subpoena. The Oversight Committee reissued the subpoena — with more detailed explanation of the House’s need for the documents — in 2021.

During Monday’s appellate court arguments, Jackson expressed concern Monday that if the court set the bar too high for lawmakers in their efforts obtain the records a former president, it would impede on Congress’ ability to do its work to protect the country from foreign and domestic threats.

“In a situation in which Congress perceives that there may have been threatening behavior, misbehavior, problems in the White House, one would think that in the aftermath of that administration, that is exactly the time in which Congress would be evaluating whether the legislative scheme was sufficient in preventing that sort of thing from happening in the future,” she said.

The Mazars case is just one battle front among several in Trump’s continued legal war against the Democratic-controlled House. On Thursday, the DC Circuit — in a panel decision that included Jackson — issued a ruling favoring disclosure of Trump White House documents that lawmakers are seeking for their January 6 probe.

That opinion was brought up multiple times during Monday’s hearing in the tax records case, with Srinivasan noting that the new January 6 records ruling got into the question of information requests that arise after a president leaves office.

“Then there is another president who is in office at that time,” Srinivasan told Norris. “So the considerations in terms of the separation of powers between the branches shift, because you do have the executive and the legislature — and the person who is subject of the subpoena and the entities associated with that person are neither of those.”

House asks appeals court to remove limits judge placed on its subpoena

In August, US District Judge Amit Mehta issued a ruling upholding some aspects of the subpoena. He backed the House’s request for certain documents related to its investigation into Trump’s lease with the federal government for his hotel at the Old Post Office building, as well as documents linked to the House’s interest in potential violations of the Emoluments Clause, i.e. the Constitution’s prohibitions on a president’s acceptance of gifts from foreign nations without congressional approval.

Mehta, however, rejected other parts of the House subpoena seeking Trump financial records that lawmakers say they need for potential legislation regarding financial disclosure requirements for presidents. His decision also scaled back which years the subpoena could target, narrowing its demands for financial documents related to the emoluments investigation to the years that Trump was in office.

Trump and the House lawmakers each challenged the district court judge’s ruling — with Trump arguing that Mehta should not have upheld the parts of the subpoena that he did, and the House arguing that the judge should not have invalidated the parts of the subpoena that Mehta did away with.

On Monday, the appellate three-judge panel — all three of them Democratic-appointees — grilled the House committee’s lawyer on why Mehta got it wrong in deciding that some parts of the subpoena overreached.

“I am just a little concerned that the subpoena is so broad,” Jackson told House General Counsel Doug Letter, while acknowledging the memo the committee released when it reissued the subpoena explaining why the requests were necessary.

“I was actually surprised when I looked at the subpoena in conjunction with the memo, because I had expected that the subpoena itself would have the categories,” that were spelled out in the committee’s 2021 explanation memo, Jackson added. “This subpoena raises a question about whether what really is going on here is more of the kind of dragnet fishing expedition that we all agree the Supreme Court says you can’t do.”

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