Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records

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).

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[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)

 

 

Federal Appellate Court Allows Lawsuit by Guantanamo Detainees

On February 11th the U.S. Court of Appeals for the District of Columbia Circuit in Washington, D.C. ruled, 2 to 1, that the federal courts had jurisdiction over habeas corpus petitions by three detainees challenging their being subjected to force-feeding at  the U.S. Naval Station at Guantanamo Bay, Cuba.

Therefore, the court reversed the district court’s dismissal of the petitions and remanded the cases to that court for further proceedings. (Aamer v. Obama, No. 13-5223 (D.C. Cir. Feb. 11, 2014).)[1]

These claims arose after a major hunger strike at Guantánamo a year ago. Detainees who lost sufficient weight were forced to eat a nutritional supplement.

The Majority Opinion

1. Federal courts’ jurisdiction.

The key issue for the court was whether habeas jurisdiction was forbidden by section 7(1) of the Military Commissions Act of 2006 (“MCA”), which provided as follows:

  • “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
Judge David S. Tatel
Judge David S. Tatel

In reaching its conclusion that this provision did not foreclose jurisdiction, the court in an opinion by Circuit Judge David S. Tatel that was joined by Circuit Judge Thomas B. Griffith started with the U.S. Supreme Court’s decision in Boumediene v. Bush, 553 U.S. 723 (2008).

In Boumediene the Supreme Court held that this statutory section was unconstitutional under Article One, Section 9, Clause 2 of the U.S, Constitution (the Suspension Clause), which states, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This was so, held the Supreme Court, because there was no other means for a Guantanamo detainee to attempt to show that he was being held pursuant to an erroneous application or interpretation of relevant law before a court with the power to order his conditional release.

The next step in the analysis was determining that the D.C. Circuit’s own subsequent decisions had decided that Boumediene had invalidated section 7(1) of the MCA for all habeas petitions by Guantanamo detainees. As a result, the determinative issue for the majority in Aamer was whether these petitioners’ claims were the sort that properly could be raised in habeas petitions.

The circuit court then concluded that these claims were properly within the scope of habeas corpus. This was so, the majority stated, because (a) the Supreme Court had suggested that habeas covers claims challenging conditions of confinement while leaving the issue open for that Court’s decision in a future case; (b) the D.C. Circuit’s own binding precedents had established that “one in custody may challenge the conditions of his confinement “ by a habeas petition; and (c) “the weight of the reasoned precedent” in other circuits had reached the same conclusion.

2. Preliminary injunction.

The detainees on appeal also challenged the district court’s denial of their requests for preliminary injunctive relief against their force-feeding, but the D.C. Circuit affirmed that denial because they had not shown likelihood of success on the merits.

This was so even though the appellate court said,”[W]e have no doubt that force-feeding is a painful and invasive process that raises serious ethical concerns.” But “it is not enough for us to say that force-feeding may cause physical pain, invade bodily integrity, or even implicate petitioners’ fundamental individual rights.”

The majority in Aamer recognized that this claim for injunctive relief had to be evaluated under Turner v. Safley, 482 U.S. 78 (1987), which held that “the legality of a prison regulation that ‘impinges on’ an inmate’s constitutional rights” must be upheld if it “’is reasonably related to legitimate penological interests.’”

Here, said the majority, the government had asserted two penological interests: “preserving the lives of those in its custody and maintaining security and discipline in the detention facility.”  These were legitimate interests as “the overwhelming majority of courts have concluded . . . that absent exceptional circumstances prison officials may force-feed a starving inmate actually facing the risk of death.”

The Dissent

Senior Judge Stephen F. Williams’ dissenting opinion concluded that the majority should have followed what he deemed to be Congress’s intentions in enacting the MCA and affirmed the dismissal of the cases. Congress, he said, “unmistakably sought to prevent the federal courts from entertaining claims based on detainees’ conditions of confinement.” “Such evident congressional intent would seem to counsel a cautious rather than a bravura reading” of whether such claims fell into the category of habeas corpus lawsuit.

Conclusion

We now wait to find out what the government will do. Ask the entire D.C. Circuit (en banc) to rehear the case?   Petition the U.S. Supreme Court to hear the case? Or return to the district court and litigate the claims there?

The majority in this case emphasized that they were only addressing the likelihood of the petitioners’ succeeding on their claims for preliminary injunctive relief, and not the actual merits. But the majority’s analysis and language, in my opinion, suggests that it is highly unlikely that the petitioners would succeed on the merits.

This case is not the only one involving Guantanamo detainees before the D.C. Circuit.

On February 21, 2014, Judge Tatel joined by Circuit Judges Janice Rogers Brown and A. Raymond Randolph heard oral arguments in an appeal from a dismissal of a complaint for money damages by six such detainees against former Defense Secretary Donald Rumsfeld and former U.S. military officials for alleged torture, religious abuse and other mistreatment at Guantanamo. (Allaithi v. Rumsfeld, No. 13-5096 (D.C. Cir.).) The main issues in this case are the following:

  • whether the claims are barred by the Westfall Act (28 U.S.C. sec. 2679), which makes lawsuits against the U.S. the exclusive remedy for injury “arising or resulting from the negligent or wrongful act or omission of any [government] employee while acting within the scope of his office or employment;” and
  • whether the defendants are immune from such a suit.

A decision on this case should issue later this year.


[1] The D.C. Circuit’s opinion was reported in the New York Times and Associated Press. Judge Tatel is a University of Chicago Law School classmate and friend of the blogger.