WASHINGTON, D.C. — Time is tight for Donald Trump’s lawyers in their fight to keep the president’s financial records out of the hands of congressional Democrats.
Attorneys for the president on Friday will ask a U.S. appeals court panel in Washington to reverse a trial judge’s decision giving a House committee access to documents dating back to 2011, currently held by Trump’s longtime accounting firm, Mazars USA LLP.
If the panel rules against them, the lawyers might not get another shot. The Supreme Court, seeing settled law in the case, wouldn’t be eager to take it up, some legal experts say, making the appeals court ruling final. Either way, the outcome of the Mazars dispute, and of two others involving the president’s records, will likely have far-reaching consequences.
“We are talking about rulings that could have significant constitutional implications going forward for the balance of powers,” said Matt Dallek, a political historian at George Washington University. “The larger question,” he said, is do the rulings reduce Congress to “a second-rate branch.”
The House Oversight and Reform Committee contends that Congress enjoys broad investigative power and that the committee must ensure the president is acting in the country’s best interests. Its document demand reaches back to 2011 because that’s when the federal General Services Administration began soliciting bids for redevelopment of the property that became Trump’s Washington hotel, they said.
The hotel could be a pipeline for the president’s receipt of revenue from foreign governments, a potential violation of one of the Constitution’s emoluments clauses, according to the committee. It wants the panel to uphold U.S. District Judge Amit Mehta’s ruling rejecting an attempt to block the subpoena.
The congressional powers at issue in Mazars and the other cases aren’t new, said Steven Schwinn, who teaches constitutional law at the John Marshall Law School in Chicago. Lawmakers exercised their authority during the Watergate and Whitewater probes, when Congress also delved into acts the president committed before he took office. The administration’s legal efforts could result in an appellate ruling reaffirming congressional power rather than reducing it, he said.
At that point, he said, “my guess is that the Supreme Court won’t want to touch this,” because the president’s arguments are weak and the law is settled.
“I don’t know that the Supreme Court would take this case,” said Irv Nathan, who served as general counsel to the House of Representatives from 2007 to 2010, during Nancy Pelosi’s first term as speaker, “because the legal principle is well established and not really arguable.”
Trump’s lawyers argue that Congress needs a legitimate legislative reason to see the records and that new conflict-of-interest or financial disclosure requirements wouldn’t meet that standard because they would alter the constitutionally set qualifications for the presidency. They also argue the committee is attempting to conduct a law enforcement investigation, usurping powers reserved for the executive branch.
“Congress cannot launch an investigation to determine whether someone broke the law, and then justify the investigation by claiming that Congress is considering strengthening or studying the law that the person allegedly broke,” according to their appellate brief.
University of Iowa law professor Andy Grewal sees a danger there for the House.
“The history in this area shows that Congress can get almost anything it wants from private parties, but it gets from the executive branch only what that branch wants to give,” he said. While precedent suggests Congress has the upper hand in the Mazars battle, he said, the tight focus of its brief on the president’s conduct could serve to buttress Trump’s claim that Congress is impermissibly engaging in law enforcement.
Friday’s arguments come just 10 days after the filing of a House Ways and Means Committee lawsuit to force the Internal Revenue Service to turn over the president’s tax returns for the past six years. They precede an appellate case in New York, where Trump is fighting to regain control over his banking records. That one will be heard on Aug. 23.
Hearing the Mazars case will be a three-judge panel made up of two Democratic presidential appointees — David Tatel, appointed by Bill Clinton, and Patricia Millett, by Barack Obama — and Neomi Rao, named to the bench by the president himself.
Despite the legal pitfalls he sees for the House panel, Grewal said the case seems an unlikely one for Supreme Court review, since Mehta’s ruling framed the legal issues as settled and the justices don’t traffic in factual disputes. Grewal noted, however, that the high court hasn’t “meaningfully addressed” congressional subpoena power since the 1970s and could seize the opportunity to do so.
A protracted court battle could favor Trump by tying up the issue — and the records — as the presidential election approaches, Nathan said.
“They’re seeking to run out the clock,” he said. “I think it’s very important for the House to move with alacrity in these matters, but also more important for the courts.”
