Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
While the Second Circuit prepares to hear the question of whether New York can subpoena Trump’s tax returns (against Trump’s defense that he’s immune as President), the DC Circuit has just weighed in on whether Congress can subpoena Trump’s tax returns (tl;dr: they can). Whereas the target is same — the tax returns — the legal questions and approach differ due to who is requesting them. The result will probably be the same, however.
The 134-page opinion by Judge Tatel is thorough, patient, and leaves no real questions on the table, but that didn’t stop Trump-appointed Neomi Rao from offering up a dissent unmoored to reality and untroubled with precedent.
The background to the case traces to Trump’s submitted financial disclosure form, required annually by the Ethics in Government Act of 1978. House Oversight Committee chairman Elijah Cummings, seeking to resolve a discrepancy between what Trump had filed with what ex-Trump fixer-lawyer Michael Cohen had testified before his committee. Prior to his plea and sentencing, Cohen dropped the hammer on Trump, testifying that Trump inflated and deflated his total assets when it served his purposes, depending on the situation, law be damned. More precisely, Cohen testified that Trump had essentially paid Stormy Daniels through Cohen in order to hide the payment from the media and FEC in the weeks before the 2016 election. It was typical of the sort of ham-fisted mob accounting Trump has been practicing for decades.
So Cummings subpoenaed Mazars, Trump’s accountants, Trump objected, the district court dismissed Trump’s argument, Trump appealed, and now we’re here.
Tatel’s opinion isn’t particularly interesting in the same way watching a professional basketball player play a grade school CYO team would get dull after the novelty wore off a minute or so in. But to some degree every issue involving the intersection of all three branches of government is important, so I’ll try to summarize his reasoning.
After taking a lengthy stroll through the vast historical trove of precedent concerning Congress’s power to subpoena and investigate, Tatel frames the preliminary question as whether Congress is investigating for a legitimate legislative purpose or it’s veering outside its constitutional lane to conduct law enforcement. Trump’s team is basically arguing that Congress has done the latter; that its subpoena is a pretext to punish Trump for political reasons. Tatel doesn’t quite come out and say that it wouldn’t matter if they were, but he kind of did.
First, if a congressional investigation uncovers criminal conduct, it’s not therefore the case that they’ve veered outside their lane. Congress’s lane is so wide, in fact, that the courts aren’t permitted to “look to the motives alleged to have prompted [the investigation],” per the Supreme Court.
For the courts to bar a Congressional subpoena, only a total absence of any indicia of legislative purpose will suffice, and that’s just not the case here. Not only is the majority able to show a legislative purpose through Cummings’ myriad public statements and memoranda, but the House has even drafted “several pieces of legislation” related to their inquiry of Trump’s finances. It might seem from the outside that Congress is targeting the President, but conversely, Trump’s approach to the presidency has exposed holes in our laws that need repairing and tightening from Congress.
Trump’s team suggests the court force the Congress to accompany any subpoena with a statement of its legislative purpose but Tatel laughs that suggestion off.
The precedent relied on by Tatel is voluminous and on point — Congress has been to court before over the years on similar document production issues, and many of those cases have found their way up to the Supreme Court. Tatel is on remarkably solid footing. He gives time and research to destroying arguments that weren’t really worth the time, in all likelihood because of the attention and scrutiny afforded any lawsuit involving the president.
When he’s done patiently judge-splaining the relevant law, Tatel finally tackles the Rao dissent and he’s positively incredulous.
I’m sure there’s been other run-ins with reality between federal circuit court judges and their newly appointed-by-Trump brethren, but I’ve yet to see a better illustration than here of just how unqualified the judges McConnell is shoving onto the bench are. Rao belongs there in the same way a drunk fan running onto the baseball diamond on a dare deserves to be called a player. Tatel manages to tread the tricky line between respectful and condescending, but it looks like it was a struggle.
[T]he dissent cites nothing in the Constitution or case law — and there is nothing — that compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process.
[T]he dissent identifies nothing in the text, structure, or original meaning of Article I or Article II of the Constitution to support such a sweeping rule of legislative paralysis.
The dissent would reorder the very structure of the Constitution.
Tatel isn’t wrong. The crux of Rao’s dissent is simply explained: Congress has impeachment power and prior to investigating the President — or indeed, any impeachable “officer” — it must do so under the color of its impeachment power. Rao does not support this idea with any historical basis whatsoever, though she spends plenty of time citing cases and history that precisely don’t support it. She seems oblivious that her categorical rule, as stated, would overturn the mountain of precedent Tatel offered up in support of the majority’s position, so naturally she doesn’t address how we’ve all been getting it wrong for two-plus centuries. Instead, Rao persists in imagining that it’s the majority introducing a novel concept and upsetting long-held precedent.
The only judge comparable to Judge Rao I can think of is (Justice) Clarence Thomas, who often stakes out iconoclastic positions. But even Thomas, for his many faults as a jurist, isn’t quite this at-odds with reality.
Rao is basically saying that Congress’s Article II powers cleaves into “impeachment” and “legislation” and investigation falls under the former, period full stop. That argument will have some appeal with Trump’s supporters, but probably not even Trump judges. Rao may be shameless but Gorsuch and Kavanagh, at least, have some concern for their judicial legacies.
