Congress can seek eight years of President Trump’s business records from his accounting firm, a federal appeals court in Washington ruled Friday in one of several legal battles over access to the president’s financial data.
That three-judge panel’s ruling is a significant victory for the Democratic-led House, but it will not result in the House obtaining Trump’s tax returns — at least, not immediately.
The House agreed to hold off on enforcing the subpoenas while Trump’s appeal is pending. Trump could keep it pending for weeks or months by appealing the case to the full D.C. Circuit.
The case is one of several clashes between the House and the Republican president over Trump’s data that are expected to reach the Supreme Court. In this case, the judges ruled that Trump’s arguments — that the subpoenas were invalid because Congress lacked a “legitimate legislative purpose” for them — were incorrect.
“Contrary to the President’s arguments, the Committee possesses authority under both the House Rules and the Constitution to issue the subpoena, and Mazars must comply,” Judges David S. Tatel and Patricia A. Millett wrote for the court. Both were appointed by Democratic presidents.
The president was appealing a lower court’s decision that allowed the House Oversight Committee to move forward with its request for financial statements and audits prepared for Trump and his companies by the accounting firm Mazars USA.
The House sought these records months before the beginning of its recent impeachment inquiry, related to Trump’s alleged efforts to pressure Ukraine to investigate Democratic presidential candidate Joe Biden.
This case, instead, was prompted by testimony from Trump’s former “fixer,” attorney Michael Cohen, that Trump had exaggerated his wealth to seek loans.
Oversight Committee Chairman Elijah E. Cummings (D-Md.) and House Speaker Nancy Pelosi (D-Calif.) celebrated the appeals ruling. In a letter to fellow House Democrats, Pelosi called it “a major victory.”
“This week, we have seen increased outside validation of our efforts to hold the President accountable and these statements speak to the heart of the Constitutional challenge that we face,” Pelosi wrote.
The dissenting judge in Friday’s ruling, Neomi Rao — appointed by Trump — said that if the House wants to investigate possible wrongdoing by the president, it should do so by invoking its constitutional impeachment powers, not its oversight powers.
“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,” Rao said. “Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.”
Rao said Congress has the power to investigate private individuals. But, she said, that power did not extend to the president in the same way because the Constitution has created impeachment as a mechanism to investigate him.
Allowing Congress to act otherwise disrupts the Constitution’s separation of powers, Rao said, permitting it “to expand its control over the other branches.”
Steve Vladeck, a law professor at the University of Texas, said Rao’s dissent seemed designed as a road map for conservative justices on the Supreme Court.
It eschewed Trump’s wide-ranging rejection of congressional oversight in favor of a narrower argument: that the Constitution doesn’t allow Congress to mix oversight and impeachment. It must do one or the other, Rao argued.
Vladeck said some conservative Supreme Court justices may adopt this view, allowing them to block the subpoena on narrower grounds and giving Trump what he wants without explicitly agreeing with his precedent-shattering arguments about presidential immunity.
“This is possibly the kind of case where the Supreme Court has often spoken with one voice,” Vladeck said, referencing the unanimous ruling against President Richard M. Nixon in 1973, which forced Nixon to turn over evidence to a grand jury. “I think a dissent like this increases the odds that any decision from the Supreme Court is not going to be unanimous.”
Trump’s lawyers declined to say when — or if — they would appeal.
“While we are reviewing the court’s lengthy decision, as well as Judge Rao’s dissent, we continue to believe that this subpoena is not a legitimate exercise of Congress’s legislative authority,” said Jay Sekulow, one of Trump’s private attorneys, in a statement. William Consovoy, the president’s lawyer in the case, declined to comment on the ruling or the legal team’s next steps.
As part of the appeals process, House Democrats agreed with the president’s private legal team to suspend deadlines set by the subpoena for turning over the records while the court case is pending. The timeline allows the case to move swiftly by court standards and could set up a potential ruling from the Supreme Court in the midst of the presidential campaign.
A spokeswoman for Mazars said the firm stood by its previous statement about the case: Mazars USA will “respect the legal process and fully comply with its legal obligations.”
In the 66-page opinion written by Tatel, the majority found that the Mazars subpoena fit squarely in a long history of cases in which courts recognized Congress’s broad authority to conduct its constitutional and legislative duties without interference from the other branches.
Like Congress had in the Teapot Dome and other presidential scandals, the House “Oversight Committee has expressed an interest in determining whether and how illegal conduct has occurred,” Tatel wrote. “Even more so,” he said, “the House has even put its legislation where its mouth is,” passing one bill to address problems it is investigating and proposing others.
“Whether current financial disclosure laws are successfully eliciting the right information from the sitting President, occupant of the highest elected office in the land, is undoubtedly ‘a matter of concern to the United States,’ ” Tatel said, citing a past court opinion. He added, “It is not at all suspicious that the Committee would focus an investigation into presidential financial disclosures on the accuracy and sufficiency of the sitting President’s filings.”
In a separate case in New York, the president is trying to block Manhattan District Attorney Cyrus Vance Jr. (D) from subpoenaing Trump’s tax records from the accounting firm. Vance is investigating hush-money payments made just before the 2016 election to two women who said they had affairs with Trump.
At the appeals court in Washington, Trump’s attorneys argued that the subpoena was invalid without specific authorization from the full House and was an unconstitutional attempt to harass the president because it lacked a legitimate legislative purpose. The Justice Department echoed those arguments in a separate filing.
Douglas N. Letter, the House’s general counsel, had said in court that Congress has a legitimate interest in investigating the president’s possible conflicts of interest and potential misconduct. He noted the House subpoena followed committee testimony from Cohen that the president intentionally inflated and deflated the value of his assets to bankers and insurers for personal gain.
In the opinion Friday, the court disagreed with Trump’s attorneys, who contended that the House subpoena served no legitimate legislative purpose because any financial disclosure laws unconstitutionally “‘impinge on and hence interfere with the independence that is imperative” to the presidency.
Tatel and Millett said the proper question is whether any law for which the subpoena could be useful “prevents the Executive Branch from accomplishing its constitutionally assigned functions,” to which they said the answer was no, citing other laws regarding presidential finances.
They noted federal law already requires presidents to report gifts they receive and bars them and other federal employees from using inside information to profit on stock trades. The same Constitution that directs the president to “take Care that the Laws be faithfully executed” also prohibits him from receiving any “Emolument” from foreign governments without Congress’s approval, as well as from the federal or state governments other than a fixed compensation “for his Services.”
“If the President may accept no domestic emoluments and must seek Congress’s permission before accepting any foreign emoluments, then surely a statute facilitating the disclosure of such payments lies within constitutional limits,” they said.
Tatel and Miller said pointedly that while Rao said she based her dissent in the “text and structure of the Constitution” and “original meaning,” she ignored “nearly a century of precedent” resolving disputes between Congress and the president while respecting “the co-equal status and roles of the legislative and executive branches,” and protecting each’s prerogatives.
The appeals court was reviewing an expedited decision from U.S. District Judge Amit P. Mehta, who pointed to decades of legal precedent upholding Congress’s right to investigate. The circuit panel heard arguments in a rare July session, keeping the case on a fast track.
“It is simply not fathomable,” Mehta wrote, “that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct — past or present — even without formally opening an impeachment inquiry.”
In another ongoing case on appeal in New York in August, the president and his family are also trying to stop one of their largest lenders from complying with a congressional subpoena. The president has appealed a ruling in that case and contends that Deutsche Bank and Capital One should be barred from turning over years of financial records.
William S. Consovoy is the private lawyer making the case to protect Trump’s interests in federal cases all summer