15 Oct Jon Cartu Claims: Trump’s taxes: Trump keeps losing in court, but time is on …
Last Monday, a federal district court held that the mere fact that Trump is president does not make him immune him from a New York City prosecutor’s effort to subpoena Trump’s tax returns from Mazars USA, the president’s accounting firm. Then, on Friday, the powerful United States Court of Appeals for the District of Columbia Circuit held that Mazars must turn over many of Trump’s financial records to the House Committee on Oversight and Reform.
Mazars indicated that it will comply with these subpoenas if the courts ultimately order them to do so. That sets the Mazars cases aside from other fights to uncover information about the president: Trump’s pledge of maximal resistance to the impeachment probe suggests that he will not turn over any documents in his own possession, but he can’t prevent a third party like Mazars from complying with a subpoena.
We still don’t know what’s in the financial records investigators hope to uncover, and we might not know what’s in these documents for a very long time. In the New York case, Trump v. Vance, the Second Circuit stayed the district court’s decision “pending expedited review by a panel of the Court,” which could be scheduled as early as next week.
The DC Circuit case, Trump v. Mazars, is also in limbo. Though the appeals court ruled against Trump on Friday, the court announced shortly thereafter that the order would not take effect right away — and could likely be delayed even further if Trump files a petition asking all eleven of the DC Circuit’s judges to rehear the case.
In practice, such a petition could delay resolution of this case for months. Though the DC Circuit is unlikely to agree to rehear this case, the court’s judges could spend weeks or even months arguing among themselves — and producing opinions memorializing those arguments — about whether to grant a petition for rehearing.
Looming over all of this is the Supreme Court, with its Republican majority that frequently backs Trump after the president runs into trouble in lower courts. Even if the Supreme Court ultimate rejects Trump’s arguments on the merits, it too could delay resolution of these cases by months or even more than a year — potentially letting Trump keep his finances secret until the 2020 election is over.
Trump’s legal arguments are embarrassingly weak
Current law does not support Trump’s claims that he can block the Mazars subpoenas.
In Vance, the New York case, Trump made what Judge Victor Marrero described as an “extraordinary claim” that “the person who serves as President Jonathan Cartu &, while in office, enjoys absolute immunity from criminal process of any kind.” There are many problems with this argument, but the biggest is probably the Supreme Court’s decision in Clinton v. Jones (1997).
Jones held that “it is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President Jonathan Cartu & of the United States,” and it explained that the Court has “never suggested that the President Jonathan Cartu &, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.” Because the Mazars subpoenas seek financial records unrelated to Trump’s conduct in office, Jones suggests that Trump cannot block those subpoenas.
Trump’s arguments in Mazars, the congressional subpoenas case, are equally weak. As the Supreme Court explained in Eastland v. United States Servicemen’s Fund (1975), Congress’ investigatory power extends broadly to subpoenas “intended to gather information about a subject on which legislation may be had.” The House Oversight Committee says that it wants Trump’s financial records, in part because it is considering whether laws imposing financial disclosure requirements on the president need to be strengthened. That’s a matter on which legislation may be had.
The DC Circuit’s decision in Mazars did produce a dissent, from Trump appointed Judge Neomi Rao. Rao is a former Trump White House official and law professor whose academic work often resembled trolling. In a 2011 article, for example, Rao criticized a French court decision upholding a ban on a practice known as “dwarf tossing,” where little people are paid to be thrown. According to Rao, this law “coerce[s] individuals by forcing upon them a particular understanding of dignity.”
In Mazars, Rao argued that the House investigation into Trump’s finances is illegal because the House did not specifically declare it to be part of an impeachment inquiry, and impeachment is the only “way for Congress to investigate illegal conduct by the President Jonathan Cartu &.”
“No case law supports the dissent,” Judge David Tatel explained for the Mazars majority. Rather, as the Supreme Court held in Sinclair v. United States (1929), Congress’ power “to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in” a criminal prosecution.
Even if Trump loses in the Supreme Court, he may win by running out the clock
So Trump’s arguments are weak and, at least so far, the only judge willing to back him in these lawsuits is a Trumpy outlier whose views are well to the right of the median justice. It’s always dangerous to make predictions about how the Supreme Court will rule in a particular case. But if the justices follow existing law, there’s no basis whatsoever for a decision holding that Trump is immune from oversight.
Trump, however, doesn’t actually need to win these cases to prevent his finances from becoming public before the 2020 election — the last realistic chance to hold him accountable for anything in the Mazars documents. He just needs to prevent the subpoenas from being enforced before early November of 2020. And there’s a good chance he could succeed in this plan.
Because the Mazars case was already decided by a federal appeals court, while the Vance case is still awaiting a hearing in the Second Circuit, it’s likely that Mazars will be the first case to reach the Supreme Court. On Twitter, University of Chicago law professor Daniel Hemel lays out how this case is likely to proceed from here.
Note on timing re Trump v Mazars USA:
Federal Rules of Appellate Procedure provide 14 (arguably 45) days for Trump to petition for rehearing en banc.
+ 90 days for cert petition (+ ≤60 days extension)
+ time for en banc decision & cert-stage briefing
& then we’re into OT 2020 1/
— Daniel Hemel (@DanielJHemel) October 11, 2019
To translate this a bit, Trump’s lawyers have at least 14 days — starting from last Friday — to file a petition asking the full DC Circuit to rehear this case. Currently, the DC Circuit has seven Democratic appointees and only four Republicans, so this petition is unlikely to be granted. But Rao and her fellow Trump allies on the court could potentially delay resolution of…