WASHINGTON (CN) – On the first day of public hearings in the impeachment probe of President Donald Trump, the D.C. Circuit gave Congress the go-ahead to take a peek at the president’s tax returns.
With public hearings underway, President Trump faced an upset on Wednesday after the federal court granted Congress permission to seek access to eight years of his tax filings.
A three-judge-panel in October rejected Trump’s request to bar Congress from subpoenaing the records from his accounting firm Mazars USA and his attorneys pined for a full panel to rehear the case.
On Wednesday, the federal appeals court responded by upholding the earlier decision to affirm Congress’ authority to request tax information and denied the requested rehearing.
D.C. Circuit Judges Karen LeCraft Henderson, a Bush appointee, and Trump nominees Gregory Katsas and Neomi Rao disagreed with Wednesday’s order —they would prefer to grant the president’s petition for a rehearing.
Judge Rao said the subpoena Congress was allowed to issue by a lower court, which was upheld on Wednesday, is unprecedented.
“The Committee exceeded its constitutional authority when it issued a legislative subpoena investigating whether the President broke the law,” wrote Rao in a dissenting opinion, adding, “Investigations of impeachable offenses simply are not, and never have been, within the legislative power because impeachment is a separate judicial power vested in Congress. The panel’s analysis of these issues misapprehends the gravamen of the Committee’s subpoena and glosses over the difficult questions it raises for the separation of powers.”
This separation-of-powers debate takes matters one step closer to a Supreme Court hearing, as Trump’s attorneys have publicly promised to pursue.
“The Constitution and our historical practice draw a sharp line between the legislative and judicial powers of Congress. By upholding this subpoena, the panel opinion has shifted the balance of power between Congress and the President and allowed a congressional committee to circumvent the careful process of impeachment,” Rao wrote Wednesday.
“Contrary to the President’s arguments, the Committee possesses authority under both the House Rules and the Constitution to issue the subpoena, and Mazars must comply,” wrote Judge David Tatel, a Clinton nominee.
The dissenting judges say this case involves personal records and no executive privilege assertion on the part of the president, which renders it a different issue than the current impeachment inquiry.
“Thus, the scope of required disclosure is determined not by neutral judges applying some form of rule-based interest balancing, but by the whim of Congress—the President’s constitutional rival for political power—or even, as in this case, by one committee of one House of Congress,” Kastas wrote.
“On the one hand, this case does not implicate the President’s need to secure candid advice from close governmental advisors—the interest supporting a presidential communications privilege covering various official-capacity records,” Kastas wrote.
On the other hand, the unavailability of that privilege “creates an open season on the President’s personal records,” according to Kastas.
“If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary,” wrote Kastas, who was joined by Henderson in a written dissent on Wednesday.