A panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2 to 1 against Trump’s efforts to stop Mazars from turning over the information, and the full circuit earlier this week declined to reconsider that decision. Roberts is the justice who hears emergency requests arising from that court.
Mazars has said it will comply with court orders to release the requested eight years of information, but the final decision seems likely to come from the Supreme Court.
The president’s lawyer William S. Consovoy said the Supreme Court’s intervention was imperative. Under the lower court’s decision, “any committee of Congress can subpoena any personal information from the president; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information,” Consovoy wrote in the Friday filing.
“Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of presidents will become our new normal in times of divided government — no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”
The new filing from the president means the court now faces perhaps historic separation-of-powers decisions with two different demands over largely the same information. One involves a state prosecutor’s investigatory powers, the other Congress’s oversight ability.
The high court is not required to review either lower-court decision. In the congressional case, however, it would have to rule on Trump’s stay request to preserve the status quo if it considered the issue worthy of full briefing.
On Thursday, Trump’s lawyers tried to block Manhattan District Attorney Cyrus Vance Jr.’s attempt to enforce a grand jury subpoena.
Vance has said his office needs the records for its investigation into alleged hush-money payments during the 2016 campaign to Stormy Daniels, an adult film actress, and to former Playboy model Karen McDougal.
Both women said they had affairs with Trump, and Vance’s office is examining whether any Trump Organization officials filed falsified business records, in violation of state law, related to the payments. Trump has denied the affairs and any wrongdoing.
Friday’s filing concerned a Democratic-led House committee’s attempt to get Trump’s financial records. The committee said it is looking into possible conflicts of interest and irregularities in the president’s financial disclosure reports.
At the D.C. Circuit, Consovoy, the president’s lawyer, argued the committee had exceeded its legislative role and was acting in a law enforcement capacity rather than serving a “legitimate legislative purpose.”
Trump’s attorneys warned that validating the subpoena would mean “Congress is free to investigate every detail of a president’s personal life, with endless subpoenas to his accountants, bankers, lawyers, doctors, family, friends and anyone else with information that a committee finds interesting.”
The Justice Department filed a brief in support of the president’s position that the subpoena cannot be enforced because the committee didn’t sufficiently justify its purpose.
In October, the panel’s 2-to-1 ruling traced the long history of courts upholding Congress’s investigative authority.
“We conclude that in issuing the challenged subpoena, the committee was engaged in a ‘legitimate legislative investigation,’ rather than an impermissible law-enforcement inquiry,” wrote Judge David S. Tatel, who was joined by Judge Patricia A. Millett. Both were nominated to the bench by Democratic presidents.
“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. That the committee began its inquiry at a logical starting point betrays no hidden law-enforcement purpose.”
Tatel said the court did not need to decide whether Congress can subpoena a sitting president because the order was directed at the accounting firm — not Trump.
In her dissent, Judge Neomi Rao, a Trump nominee, said if the House wants to investigate possible wrongdoing by the president, it should do so by invoking its constitutional impeachment powers — not through legislative oversight. (The House subsequently opened an impeachment inquiry but focused on Trump’s dealings with Ukraine, not financial impropriety.)
The majority said Rao’s view laid out in her dissent would “reorder the very structure of the Constitution” and “enfeeble the legislative branch.”
“The dissent cites nothing in the Constitution or case law — and there is nothing — that compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process. Nor does anything in the dissent’s lengthy recitation of historical examples dictate that result,” Tatel wrote.
Trump’s lawyers requested a rehearing, but only two other judges publicly joined Rao in saying the full circuit should hear the case.
The committee’s acting chairwoman, Carolyn B. Maloney (D-N.Y.), said it was the president who should stop resisting.
“It has now been seven months since the Oversight Committee asked for these records. It is time for the president to let us do our job and stop blocking Mazars from complying with the committee’s lawful subpoena,” she said in a statement.