Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for accounting records relating to Donald J. Trump.
D.C. Circuit Court of Appeals
As discussed in a prior post, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on October 11, 2019, upheld (2-1) in an opinion by Judge David S. Tatel a subpoena by an U.S. House of Representatives committee to Mazars, USA for certain accounting records of Donald J. Trump.
A month later, on November 13, that court denied, 8-3, Trump’s motion for the full (en banc) court to review that decision of the three-judge panel.[1] As is typical, there was no opinion by the eight judges denying the motion. However, two of the three dissenting judges, wrote opinions.
Judge Gregory Katsas joined by Judge Karen Henderson, said, “this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President. The first time this was attempted with then President Nixon, this court refused to enforce the subpoena, stressing “the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct. Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731–33 (D.C. Cir. 1974) (en banc).”
The other dissenting opinion, by Judge Neomi Rao, who also was joined by Judge Henderson, emphasized that this subpoena was not really justifiable by the congressional power to enact new laws. It was really a subpoena looking for impeachable offenses, which is not part of the legislative power.
Afterwards an attorney for Trump said that he would now petition the U.S. Supreme Court to review the case.
Second Circuit Court of Appeals
Such a petition would join a similar one by Trump from a November 4 unanimous decision by Chief Judge Robert Katzmann for a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a subpoena by the District Attorney of the County of New York in Manhattan for similar accounting records from the Mazars accounting firm.[2] During the oral argument of this case, one of the judges asked the Trump attorney if local authorities could investigate President Trump if he shot someone on Fifth Avenue in New York City, and the attorney said the authorities could not so investigate.
After that decision, Jay Sekulow, an attorney for Trump, said that Trump would ask the U.S. Supreme Court to review the case because, he claimed, ““The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”
Conclusion
Now the parties to these cases will be joined by all of us in the U.S. and elsewhere for the briefing on whether the Supreme Court should grant such review, the Court’s decision on these petitions and, if review is granted, the briefing and oral arguments in that court and its ultimate decision (in the midst of the 2020 presidential campaign).
============================
[1] Order, Trump v. Mazars USA, LLP and Reform of the U.S. House of Representatives, No. 19-5142 (D.C. Cir. Nov. 13, 2019); Savage, Court Rejects Trump’s Appeal in Fight to Keep Financial Records from Congress, N.Y. Times (Nov. 13, 2019); Reuters, U.S. Appeals Court Again Backs House Request for Trump Tax Documents, N.Y. Times (Nov. 14, 2019).
[2] Opinion, Trump v. Vance, No. 19-3204 (2d Cir. Nov. 4, 2019); Weiser & Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 4, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019)