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.