The D.C. Circuit was responding to Trump’s request to have a full panel of judges rehear a three-judge decision from October that rejected the president’s request to block lawmakers from subpoenaing his longtime accounting firm.
A majority of the court’s 11 active judges voted against revisiting the case. Three judges — Neomi Rao, Gregory Katsas and Karen LeCraft Henderson — indicated that they would have granted the rehearing and published dissenting statements. Rao and Katsas, both former Trump administration officials, were nominated to the bench by the president.
“This case presents exceptionally important questions regarding the separation of powers,” Katsas wrote.
He warned of the “threat to presidential autonomy and independence” and said it would be “open season on the President’s personal records” if Congress is allowed to compel the president to disclose personal records based on the possibility that it might inform legislation.
The court’s order does not mean Trump’s tax records will be turned over to Congress immediately. The D.C. Circuit previously said it would put any ruling against the president on hold for seven days to give Trump’s attorneys time to ask the Supreme Court to step in.
Sekulow in a statement cited the “well reasoned dissent” in Trump’s decision to go to the Supreme Court.
Trump’s attorneys also are planning to ask the high court as soon as Thursday to block a similar subpoena for the president’s tax records from the Manhattan district attorney, who is investigating hush-money payments in the lead-up to the 2016 election. The New York-based appeals court ruled against Trump this month and refused to block the subpoena to his accounting firm, Mazars USA.
The D.C. Circuit case centers on a House Oversight Committee subpoena from March for the president’s accounting firm records — issued months before the beginning of its impeachment inquiry, related to Trump’s alleged efforts to pressure Ukraine to investigate political rival Joe Biden.
The request for information followed testimony from Trump’s former personal attorney Michael Cohen that Trump had exaggerated his wealth when he sought loans. Lawmakers are investigating potential conflicts of interest, including the accuracy of the president’s financial disclosures.
A divided three-judge panel of the court held in October that the House had issued its subpoena for “legitimate legislative pursuits, not an impermissible law-enforcement purpose,” as the president’s lawyers had argued.
“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,” wrote Judge David S. Tatel, who was joined by Judge Patricia A. Millett. Both were nominated by Democratic presidents.
Rao, the dissenting judge on the panel, restated her view that the committee had exceeded its authority with a legislative subpoena “investigating whether the President broke the law.”
“By upholding this subpoena, the panel opinion has shifted the balance of power between Congress and the President and allowed a congressional committee to circumvent the careful process of impeachment,” she wrote.
The House subsequently passed, after the initial panel opinion, a resolution affirming its impeachment inquiry.
But Rao wrote Wednesday that the committee “is wrong to suggest” that questions about the validity of the subpoena “are no longer of ‘practical consequence.’ ”
It is an open question, she said, “whether a defective subpoena can be revived by after-the-fact approval.”