WASHINGTON (CN) — Warily reigniting a lawsuit over President Donald Trump’s tax returns, a federal judge warned the parties Thursday that the separate battle to subpoena White House counsel Don McGahn could waylay the case.
"It feels like a moving target, given you are also seeking a rehearing en banc,” U.S. District Judge Trevor McFadden said Thursday morning in Washington.
While McFadden addressed a lawyer for the House Ways and Means Committee, it is the House Judiciary Committee embroiled in the suit with McGahn.
Their petition for a full D.C. Circuit rehearing is imminent after a three-judge panel of the court killed the McGahn subpoena one week earlier.
While the merits of the McGahn case turn on immunity — the White House insists that presidential advisers enjoy the same shield as Trump when it comes to testifying before Congress — the D.C. Circuit opted last week to dismiss the case for lack of jurisdiction.
“The walk from the Capitol to our courthouse is a short one, and if we resolve this case today, we can expect Congress’s lawyers to make the trip often,” U.S. Circuit Judge Thomas Griffith wrote for the 2-1 majority.
In District Court on Thursday, the Trump-appointed McFadden underscored the jurisdictional parallels at play and read aloud from Griffith’s opinion: “The committee’s dispute with the executive branch is unfit for judicial resolution because it has no bearing on the ‘rights of individuals’ or some entity beyond the federal government.”
Justice Department attorney David Morrell insisted at Thursday’s hearing that McFadden had a duty not to remove the stay in the tax-return case.
Griffith’s opinion would be vacated if the D.C. Circuit grants an en banc rehearing in the McGahn case, but Morrell said it “squarely controls” the tax-return case in the meantime.
“As long as that panel is not vacated, it is binding on this court,” Morrell said of last week’s opinion.
House attorney Josephine Morse meanwhile assured Judge McFadden that the appeals court will fast-track the petition for an en banc rehearing, emphasizing that the McGahn ruling was “seriously flawed.”
While McFadden ultimately vacated the stay, he made clear he was hesitant to move forward with briefing the case when work by both parties could be outdated in days by an order from the D.C. Circuit. In the interim, the parties will file a joint report by next week.
Morrell cautioned McFadden at the hearing about the dangers of meddling in interbranch disputes, saying the judiciary’s role is to protect the rights of individuals, not of the House of Representatives.
“It hits all of those trip wires because you can’t change the identity of the parties,” Morrell said.
An attorney for Trump went further, calling for McFadden to promptly dismiss the tax-return case.
If that is “not in the cards,” said Cameron Norris, a lawyer with Consovoy McCarthy, McFadden should wait to proceed until after the House petition is resolved.
Apart from defending the court’s power to enforce its subpoena of Trump’s tax returns, the House argues that it is entitled to access the records under the Internal Revenue Code, section 6103.
The Justice Department’s Morrell called the latter claim under federal tax law a “highly reticulated scheme.”
Whether McFadden will split the two arguments remains unclear. “I’m not inclined to bifurcate,” the judge said repeatedly Thursday.
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