Two Federal Appellate Courts Uphold Subpoenas for Trump Accounting Records  (Updated 11/22/19)   

Over the last two weeks two federal appellate courts have upheld different subpoenas to the Mazars USA accounting firm for 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) a subpoena by an U.S. House of Representatives committee to Mazars for certain Trump accounting records.

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.

And on November 15, his attorneys did just that by asking Chief Justice John Roberts, who is responsible for emergency requests from the D.C. Circuit, for a stay of proceedings while the Supreme Court considers his petition for review of the merits of the lower court’s decision. This request argued for such a stay for the following reasons: (I) “There is a reasonable probability that the Court will grant certiorari to determine whether the Committee’s subpoena is lawful.” (II) “There is a fair prospect that this Court will reverse the D.C. Circuit’s decision upholding the subpoena.” (III) “Applicants will suffer irreparable harm without a stay.” (IV) “The balance of equities and relative harms weigh strongly in favor of granting a stay.” [2]

On November 18, the attorneys for the House Committee filed a letter with the Supreme Court announcing that they planned to file an opposition to the requested stay on November 22, but that out of courtesy to the Court the Committee does not oppose “a short ten-day administrative stay, beginning on November 20, 2019, to enable the Court to receive an opposition by the Committee and then rule on the request for a stay. Thereafter the same day, Chief Justice Roberts ordered “that the mandate of . . . [the D.C. Circuit] is hereby stayed pending receipt of a response, due on or before Thursday, November 21, 2019, by 3 p.m. ET, and further order of the undersigned or of the Court.”[3]

One of Trump’s attorneys, William S. Consovoy, “said the Supreme Court’s intervention was imperative. Under the lower court’s decision, ‘any committee of Congress can subpoena any personal information from the President; all the committee needs to say is that it’s considering legislation that would force Presidents to disclose that same information. Given the temptation to dig up dirt on political rivals, intrusive subpoenas into personal lives of Presidents will become our new normal in times of divided government — no matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.”

In accordance with that order, the House Committee on November 21 submitted its opposition to the Trump motion. It argued that the Court’s precedents involving Presidents Richard M. Nixon and Bill Clinton make clear that the chief executive enjoys no special privilege to be free from investigation or legal action and that a stay would cause irreparable harm to the Congress and the public, outweighing whatever harm enforcement of the subpoena would cause Trump and Mazars. The House Committee also argued that if the Court agrees to a stay of a lower court’s order, the Court should expedite a decision on whether to order a full briefing and a hearing on the case.[4]

Second Circuit Court of Appeals

Such a petition to the Supreme Court would join a similar one by Trump from a November 4 unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York City upholding a state grand jury subpoena for accounting records from the Mazars firm relating to a probe into whether the accounting for payments Mr. Trump’s former lawyer, Michael Cohen, made to two women violated state laws against falsifying business documents. .[5]

During the oral appellate 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 the Second Circuit’s 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.”

In fact, on November 14, Trump petitioned the Supreme Court for a review of the following issues in this case: (I) “Whether the President is absolutely immune is an important and unsettled issue of federal law that the Court should resolve” and (II)   “The Second Circuit incorrectly decided this important immunity question.” The petition also alleged, “For the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the President of the United States and subjected him to coercive criminal process. . . . Politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”[6]

In a contemporaneous statement, Sekelow stated, “”The Second Circuit decision is wrong and should be reversed. In our petition, we assert that the subpoena violates the U.S. Constitution and therefore is unenforceable. We are hopeful that the Supreme Court will grant review in this significant constitutional case and reverse the dangerous and damaging decision of the appeals court.”

The Department of Justice also filed with the Supreme Court an amicus brief supporting Trump’s petition while saying that there are instances when a local prosecutor might legally seek a president’s documents — but that this was not one of them.[7]

Trump filed this petition so immediately because of his attorneys’ agreement with the New York prosecuting attorneys whereby the latter “agreed not to seek the tax returns until the case is resolved by the Supreme Court” so long as Trump agreed to “a very quick briefing schedule, one that would allow the Supreme Court to announce whether it will hear the case as soon as next month and to issue a decision by June, as the presidential election enters its final stages.”

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 Committee on Oversight 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] Emergency Application for a Stay of Mandate Pending the Filing and Disposition of a Petition for a Writ of Certiorari, Trump v. Mazars USA, LLP, Committee on Oversight and Reform of the U.S. House of Representatives, No. 19A545 (Nov. 15, 2019); Liptak, Trump Again Asks Supreme Court to Block Release of His Financial Records, N.Y. Times (Nov. 15, 2019); Hurley & Freifeld, Trump asks Supreme Court to block disclosure of financial records to Congress, Reuters (Nov. 15, 2019); Barnes & Marimow, Trump appeals to Supreme Court again, this time to block House committee’s subpoena seeking his financial records, Wash. Post (Nov. 15, 2019).

[3] Letter, House Committee to Clerk of Supreme Court, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Order, Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019) Trump v. Mazars USA, No. 19A545 (Nov. 18, 2019); Barnes, Supreme Court puts temporary hold on Trump financial records ruling, Wash. Post (Nov. 18, 2019); Liptak, Chief Justice Gives Trump Temporary Reprieve in Financial Records Case, N.Y. Times (Nov. 18, 2019).

[4] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); House Committee, Opposition to Emergency Application for a Stay of Mandate, No. 19A545 (Sup. Ct. Nov. 21, 2019).

[5] 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. 14, 2019); Neumeister, Appeals court agrees Trump tax returns can be turned over, Wash. Post (Nov. 4, 2019).

[6] Petition for Writ of Certiorari, Trump v. Vance, No. —- (U.S. Sup Ct. Nov. 14, 2019); Liptak, Trump Asks Supreme Court to Bar Release of His Tax Returns, N.Y. Times (Nov. 14, 2019); Barnes & Marimow, Trump asks Supreme Court to shield his tax returns from prosecutors, setting up historic separation-of-powers showdown, Wash. Post (Nov. 14, 2019); Bravin, Kendall & Ramey, Trump Asks Supreme Court to Block New York Subpoena for Tax Records, W.S.J. (Nov. 14, 2019); Samuelson & Gerstein, Trump lawyers take fight over tax returns to Supreme Court, Politico (Nov. 14, 2019); deVogue, Trump asks Supreme Court to block subpoena for tax returns, CNN.com (Nov. 14, 2019).

[7] Barnes, Supreme court precedents do not shield Trump financial records, House, prosecutors argue, Wash. Post (Nov. 21, 2019); Reuters, Democrats Urge U.S. Supreme Court Not to Protect Trump Financial Records, N.Y. Times (Nov. 21, 2019); Liptak, Justice Dept. Urges Supreme Court to Back Trump in Tax Records Case, N.Y. Times (Nov. 22, 2019); Vance, Jr.,  Brief in Opposition, No. 19-635 (Sup. Ct. Nov. 21, 2019).

 

 

 

 

Delay in U.S. Extradition of Inocente Orlando Montano Morales to Spain for Trial in Murder of the Jesuit Priests in El Salvador

 

Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application.[1]

Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues.[2]

Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.”

Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so.

He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.”

International Law Issue

Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.” For this proposition the Judge cites section 404 of the Restatement (Third) of Foreign Relations Law [of the U.S.] (1987), which says, in part, that “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism.” (Emphasis added; p. 3, n.2.) Two pages later the Judge cites United States v. Yousef, 327 F.3d 56, 107-08 (2d Cir. 2003), which apparently concluded that “terrorism . . . does not provide a basis for universal jurisdiction” although also observing that treatises like the previously cited Restatement are not primary sources of customary international law.

No independent legal research has been conducted on this issue, but it should be noted that the Restatement is a thirty-year-old secondary authority and that the Yousef case is 14 years old, is from another circuit court and thus is only persuasive authority at best and Judge Boyle merely says this case has been cited by Montano.

The complex Yousef case involved three defendant foreigners who appealed from judgments of conviction for multiple violations of U.S. law, including a conspiracy to bomb a Philippines Airline aircraft flying from the Philippines to Japan. The appellate court rejected the defense arguments that the U.S. had no jurisdiction for this charge because U.S. “law provides a separate and complete basis for jurisdiction over [this and other charges] . . . [U.S.] law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both . . . [and because] customary international law does provide a substantial basis for jurisdiction by the [U.S.] over each of these counts, although not . . . under the universality principle.”

Indeed, the Second Circuit in Yousef held in 2003 that “customary international law currently does not provide for the prosecution of ‘terrorist’ acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” (Emphasis added.) The court also noted that those offenses supporting universal jurisdiction under customary international law — that is, piracy, war crimes, and crimes against humanity —. . . now have fairly precise definitions and that have achieved universal condemnation.” (Emphases added.)

Such definitions of “war crimes” and “crimes against humanity” are found in Articles 7 and 8 of the Rome Statute of the International Criminal Court, which has jurisdiction over “the most serious crimes of concern to the international community as a whole,” including crimes against humanity” and “war crimes.” Here are the relevant parts of that Statute:

  • One of the “crimes against humanity” is “murder” “when committed as part of a widespread or systematic attack directed against any civilian population” or “a course of conduct involving the multiple commission of [murder] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” Given the circumstances of the Salvadoran Civil War and the actions of the Salvadoran military, circa 1989, these conditions for this type of crime against humanity should be satisfied.
  • One of the “war crimes” is “willful killing” of “persons . . . protected under the provisions of the relevant Geneva Convention.” Here, that is the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War), which protects “Persons taking no active part in the hostilities” against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

Therefore, although not yet subjected to complete legal analysis, a respectable argument for this issue for extradition can and should be made.

U.S. Legal Issues

 Judge Boyle also raised two issues of U.S. law: (1) whether there was a U.S. law that would justify a U.S. criminal charge against Montano for his alleged participation in the killing of the Jesuit priests and (2) whether such a hypothetical U.S. charge would satisfy the U.S. constitutional requirement for “due process of law” under the Fifth Amendment.

I leave these issues to the subsequent briefs of the parties.

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[1] See posts listed in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D. N.C. Mar. 27, 2017).