WASHINGTON (CN) — Two weeks out from the presidential election, as a legal battle raged over access to President Donald Trump’s financial records, the D.C. Circuit indicated Tuesday there is little need for a swift ruling.
A three-judge panel of the appeals court previously upheld the subpoena brought by the Democrat-controlled House of Representatives but considered the case for the second time this morning after the Supreme Court instructed it in July to reevaluate the House’s subpoena power.
With former Vice President Joe Biden fighting to take back control of the White House, the Democrats had hoped to have their hands on Trump’s past financial statements for campaign trail leverage.
For U.S. Circuit Judge David Tatel, however, the more prudent move would be to wait until after the next Congress convenes on Jan. 3.
“It has the additional benefit of permitting the new president — well we don’t know about that — presenting the new House an opportunity to express their views on this,” said Tatel, who is a Clinton appointee.
In upholding the House subpoena last year, Tatel had led a 2-1 majority. The case is one of several ongoing legal battles over the president’s refusal to comply with congressional oversight. Trump brought this iteration of the dispute to keep his accountants at Mazars USA from complying with the House’s subpoena.
Cameron Norris, Trump’s personal attorney, told the D.C. Circuit that the House has continuously failed to demonstrate a legislative need to unearth the president’s records, instead relying on “vague and loosely worded explanations.”
He insisted that the Supreme Court’s decision, which was decided 7-2, compelled full reconsideration of the factual record in the case.
“That vacatur, we believe, puts all the issues back on the table, with the Supreme Court’s guidance in mind,” Norris said.
Urging the court to ignore a memorandum that Oversight Committee Chairwoman Carolyn Maloney penned in August, after the Supreme Court remanded the case, Norris claimed the memo retroactively rationalizes a subpoena first issued by the late Chairman Elijah Cummings.
The memo cannot be considered, Norris argued, since it was neither part of the District Court record nor included as part of a motion to supplement the record on appeal.
Tatel recalled an argument that Justices Samuel Alito and Clarence Thomas made in their dissents to the July remand that the case could not survive on the record — a point that was not made in the majority opinion.
But Norris replied that the Supreme Court gave “implicit signals” backing his argument.
U.S. Circuit Judge Neomi Rao drilled both parties on what circumstances must align to allow the House to seek the president’s personal papers.
Trump’s attorney said he did not want to say never, but that Congress has to overcome a “less evident connection to a legislative task.”
“Personal papers have a less evidence connection to legislation and pose a heightened risk that something is amiss, that something — exposure, law enforcement or pure politics — is involved,” Norris said.
Rao, a Trump appointee who dissented last year, also called the House a co-equal “half-branch of government,” eliciting laughter from House general counsel Douglas Letter.
When asked by Rao if the court had the power to “rewrite” congressional subpoenas, Letter said no but that enforcing parts of subpoenas is a normal judicial practice.
“This litigation has been going on for an extremely long time and there’s no good reason for the court not to issue its decision,” he said.
Letter argued that the appeals court need only review the record at hand — compiled when the subpoena was issued under Cummings and before Trump appealed to the high court. If that scrutiny failed to suffice, the three judges could then turn to Maloney’s memo, he added.
This is what happened when the en banc court decided Senate Select Committee on Presidential Campaign Activities v. Nixon, Letter recalled, saying the court reviewed new materials and events evident on the record and unfolding outside of court.
Maloney’s memo outlines how the subpoena will advance the House’s Trump probe and aid its consideration of ethics reforms, specifying a three-track investigation on presidential conflicts of interest and financial disclosures, potential self-dealing, and adherence to the emoluments clause of the U.S. Constitution.
Rao buckled down on what would be an inappropriate use of House subpoenas saying they can lead to “exposure of the sake of exposure.”
“Could they say they’re interested in this president’s health information, because of his age or because he recently contracted the coronavirus? What would be the limit?” the judge asked.
Letter replied the appropriateness of a subpoena depends on the factual scenario in play.
But the House attorney firmly argued Democrats in this case were operating within their policymaking authority to investigate the president’s conflicts of interest, including business dealings in Istanbul and Moscow.
“This president has extremely complex and opaque financial dealings,” Letter said. “We also know that in his financial disclosure statements there have been very, very serious errors. So we need to know exactly for legislative purposes.”
Rao accused Letter of claiming for the first time that “alleged financial improprieties are leading to any number of other policy decisions that may need to be overridden,” but the attorney pointed to several pages in briefs that laid out the argument.
While the Trump-appointed judge reasoned that the House could pass legislation without knowing the particular details of the president’s alleged misconduct, U.S. Circuit Judge Patricia Millett said otherwise.
“I think they would say there’s plenty of smoke but we really consider it incumbent upon us to understand the source of the fire,” the Obama appointee said.
Millett asked Trump’s attorney whether he agreed that the House would need to know the exact facts of a president’s conduct when passing legislation to regulate the executive branch.
But Norris said he did not believe the committee needed a “detailed understanding of the extent and complexity of the president’s finances.”
“I believe that’s still overstepping,” Norris added.
For Letter, those diverging takes on what precise information Congress requires to oversee the White House is at the heart of the case.
“This court and the Supreme Court have said when Congress doesn’t have full information it’s like shooting in the dark,” he argued.
The D.C. Circuit also explored what alternative investigatory routes the House could have taken to obviate the need to subpoena the president.
Norris argued the congressional body could have subpoenaed the Trump Organization directly.
But Millet pointed out the president had “flatly forbidden any compliance whatsoever” by executive branch officials in response to House subpoenas, referring to a directive Trump outlined during the impeachment probe.
She asked if Norris was arguing “that the Trump Organization would do what President Trump and the White House and agencies at his direction have not done in the accommodation process.”
“We believe a direct request to us could very well work out differently,” Trump’s personal attorney said, to which the judge responded: “I don’t want could — could is just a hypothetical.”
On the same day it remanded the House’s case, the Supreme Court advanced a separate subpoena issued by Manhattan District Attorney Cyrus Vance seeking eight years of Trump’s personal and corporate tax returns, as part of an investigation into hush money paid to adult film actress Stormy Daniels.
Also decided by a 7-2 breakdown, the Vance ruling said the president was not immune from complying with the New York subpoena.