“Plaintiffs . . . hereby appeal to the U.S. Court of Appeals for the D.C. Circuit all aspects of this Court’s order and opinion from May 20, 2019,” stated lawyers for Trump, the Trump Organization and several related companies in the notice to U.S. District Judge Amit P. Mehta.
Mehta, in a 41-page ruling Monday, flatly rejected arguments from the president’s lawyers that the House Oversight Committee’s demands for the records from Trump’s accounting firm, Mazars USA, were overly broad and served no legitimate legislative function.
“It is simply not fathomable,” the judge 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.”
It was not immediately clear how quickly the appeals court would schedule briefings and oral arguments. The court’s calendar lists only one argument through the summer. But the court can add cases as needed before a three-judge panel “if the case is important enough or requires quick disposition,” D.C. Circuit Clerk Mark Langer said Tuesday.
It also would be up to circuit judges whether to put the committee subpoena on hold pending consideration of Trump’s appeal.
Mehta denied Trump’s bid to block the subpoena while his lawsuit filed April 22 continues, and went further by rendering a final decision to speed consideration by the appeals court.
Mehta had refused to stay his order to comply with the subpoena beyond seven days to allow time for an appeal, but Trump’s lawyers acted within hours. Speaking to reporters on Monday after the ruling, Trump called the opinion “crazy” and said he would appeal, adding: “We think it’s totally the wrong decision by, obviously, an Obama-appointed judge.”
On Tuesday, some legal experts said they expected Trump’s legal adversaries to continue to try to accelerate proceedings, and not be party to the administration’s stated intention of defying and delaying Congress’s oversight functions.
Kerry W. Kircher, who served as House general counsel from 2011 to 2016 and deputy general counsel from 1995 to 2010, said Tuesday he was not surprised by Mehta’s order or how quickly the judge moved. He said there “is a very good chance these records end up in Congress’s hands” by 2020 because courts have so often upheld congressional investigative powers over challenges by the executive branch and private parties.
“Congress has broad oversight,” Kircher said, “and it plays a very important role in the way our government operates, and courts have recognized that for decades and decades.”
Kircher said, “If you’re on the receiving end of things, you don’t like it . . . but I don’t see this case in particular raising any significant issues that would justify its making its way to the Supreme Court.”
The Mazars case could move quickly, because the executive branch has far fewer tools to resist congressional subpoenas that target documents from private companies, than it has when asserting executive privilege to prevent aides from testifying, said Andy Wright, a former Obama associate White House counsel and staff director for a House Oversight subcommittee from 2007 to 2011. He is now with K&L Gates.
As an example, Wright noted that in 2016 it took only 39 days once a district judge upheld a Senate subpoena — analogous to what Mehta did Monday — for an appeals court and the U.S. Supreme Court to refuse a request by a website operator Backpage.com to block an oversight committee demand for information on how it screens ads for possible sex trafficking. Within two months, the company had turned over 110,000 pages of documents.
“It’s not one size fits all . . . but in a sense the stay litigation is the ballgame, and the burden is on the person resisting the subpoena to demonstrate a likelihood of success on the merits, as well as that it is in the interests of justice,” Wright said.
He added, “It is possible, if Judge Mehta’s reasoning holds, that both the D.C. Circuit and the U.S. Supreme Court could resolve this within the next five weeks in an adverse way to President Trump. So that’s pretty fast.”
Trump has argued the congressional inquiries are politically motivated attacks on the authority of the presidency, while Democrats insist the subpoenas are essential to ensuring no president is above the law.
When the lawsuit was filed, Trump’s private attorney Jay Sekulow said the president’s team “will not allow Congressional Presidential harassment to go unanswered.”
Mazars said after Monday’s court decision that the company said in a statement that it will “respect the legal process and fully comply with its legal obligations.”
Rep. Elijah E. Cummings (D-Md.), chairman of the House Oversight Committee, said the ruling “lets America know that we have ground to stand on and that we have a legitimate argument and the courts support them . . . I’m glad it was a strong decision; that bodes well, hopefully, in the future for an appeals process.”
An appeal could test decades of legal precedent that has upheld Congress’s right to investigate — a legal battle that is just one part of a broader effort by House Democrats to examine Trump’s finances, his campaign and allegations that he sought to obstruct justice in special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 election.
Ann E. Marimow contributed to this report