The U.S. Court of Appeals for the D.C. Circuit’s decision in favor of the House Oversight and Reform Committee presents the Supreme Court with a “case of firsts,” wrote Trump’s personal lawyer William S. Consovoy.
“It is the first time that Congress has subpoenaed personal records of a sitting president. It is the first time that Congress has issued a subpoena, under the guise of its legislative powers, to investigate the president for illegal conduct. And, it is the first time a court has upheld any congressional subpoena for any sitting president’s records of any kind,” he wrote in the brief.
The Supreme Court is scheduled to consider a related case at its private conference Dec. 13. It involves a decision by the U.S. Court of Appeals for the 2nd Circuit that granted Manhattan District Attorney Cyrus Vance Jr. similar access to Trump’s financial records, which are held by his longtime accounting firm Mazars USA. The company has said it will comply with final court orders.
If the court decides to order full briefing and argument in both cases, it could lead to landmark decisions this term on the ability of prosecutors and Congress to investigate the president. Both subpoenas are independent of the House’s impeachment inquiry.
Trump has taken a sweeping view that such investigations are not allowed while the president is in office.
And in Thursday’s filing, he said Congress’s “mere assertion” that its fact-finding is needed in service of potential legislation is not enough to justify the move.
“Given the obvious temptation to investigate the personal affairs of political rivals, subpoenas concerning the private lives of presidents will become routine in times of divided government,” the filing said.
The House will have a chance to answer Trump’s petition and try to persuade the court that the D.C. Circuit opinion was correct, and that there is no need for the high court’s review.
House General Counsel Douglas N. Letter laid out its basic justification in a filing with the court last month:
“The committee is investigating whether senior government officials, including the president, are acting in the country’s best interest and not in their own financial interest, whether federal agencies are operating free from financial conflicts and with accurate information, and whether any legislative reforms are needed to ensure that these fundamental principles are respected,” he wrote.
Consovoy said there was no question that the issues raised in the cases warrant the high court’s attention.
“This court traditionally grants certiorari when the president has been subjected to novel legal process and seeks review,” he wrote.
The most consequential of those reviews involved Presidents Richard M. Nixon and Bill Clinton, and in both the Supreme Court handed them unanimous losses.
The lower courts have used the precedents from those cases, in part, to rule against Trump.
Both Vance’s investigation and the House committee’s probe have their origins in part in alleged hush-money payments that Trump’s former lawyer Michael Cohen made during the 2016 campaign to women who claimed to have had affairs with Trump. The president has denied the allegations.