McFadden also kept in place an order requiring the government to give the former president’s lawyers 72 hours’ notice before releasing his tax return information to allow them to file a request to block the release.
Separation-of-powers issues that have slowed the case “may fall out” now that Trump is no longer in office, the judge noted.
“It would be a former president trying to stop a political branch, rather than one branch suing another. At least that’s my instinct,” said McFadden, a 2017 Trump appointee to the federal bench in Washington.
House General Counsel Douglas N. Letter agreed, saying, “We’re not dealing with a president anymore. We’re dealing with a former president.”
The fight over Trump’s tax information confronts the Biden administration as some Democrats urge the new White House to focus on the agenda for its first 100 days, including tackling the historic health and economic crises caused by the novel coronavirus, which has killed more than 412,000 Americans and rendered millions jobless.
At the same time, the House has voted to charge Trump on one article of impeachment, setting the stage for a Senate trial over whether he incited insurrection through groundless allegations of election fraud, fueling the Jan. 6 mob attack on Congress.
Manhattan District Attorney Cyrus Vance Jr. has sought information from Trump’s accounting firm Mazars USA for a New York investigation of Trump’s finances, after an unsuccessful challenge by Trump went all the way to the Supreme Court.
Since last March, the lawsuit filed by the House Ways and Means Committee to enforce a statutory request and a subpoena for six years of Trump’s federal tax records has been frozen by McFadden.
McFadden, a former Justice Department official, stayed the case pending a final verdict by the U.S. Court of Appeals for the D.C. Circuit over similar legal issues testing the balance of powers between a president and Congress raised by a House lawsuit seeking to compel testimony by former Trump White House counsel Donald McGahn.
A decision by the full court is pending.
On Friday, Letter said the new Congress has authorized reissuing of a subpoena for Trump’s tax information that expired with the election changeover.
Also, he said the Treasury Department and the House historically have always agreed that requests made under the 1924 law giving the tax-writing committee authority to seek tax returns and other records in overseeing the effectiveness of the Internal Revenue Service’s audit program survive the turnover of Congress.
The House has been stymied for months, “numerous investigations have been obstructed,” and “enough is enough,” Letter argued, saying, “The statute here is clear. ‘Shall’ means ‘shall,’ and therefore the Treasury Department should turn over these materials . . . and that should be the end of it.”
Speaking for the Justice Department, attorney James J. Gilligan said the agency has so far not been able to confer with new Treasury Department leaders, “so we still have no idea whether any decision has been reached . . . whether any decision is imminent . . . or even . . . under active consideration.”
Gilligan said he could not guarantee a decision in two weeks but called a delay and the notice requirement a way to balance the interests of all sides.
Trump attorney Patrick Strawbridge supported maintaining the notice requirement to preserve the former president’s right to his day in court to object to any handing over of records.
McFadden said he agreed, adding that he was thinking of “entering an order along those lines if there is a change of view from the Treasury. But I’d love for all of us to agree together on a path forward. Then we can try to get some resolution here.”