Trump's Lawyer Faced Skeptical DC Circuit Panel in Subpoena Fight
The panel—Judges Patricia Millett, David Tatel and Neomi Rao—spent more than two hours grilling the House's top lawyer and a private attorney representing Trump. The court appeared, at times, divided.
July 12, 2019 at 12:13 PM
6 minute read
The original version of this story was published on National Law Journal
A federal appeals court weighing President Donald Trump's push to block a U.S. House committee subpoena for financial records from his accounting firm appeared divided Friday over arguments that lawmakers had acted outside the scope of their authority.
Judges Patricia Millett, David Tatel and Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit heard arguments for more than two hours in the court's ceremonial courtroom, where marble statues of Hammurabi, Moses, Solon and Justinian are built into the wall behind the judges' bench.
Millett and Tatel, both appointed by Democratic presidents, expressed skepticism at times over Trump's claim that House lawmakers were out of bounds and lacked certain oversight authority, whereas Rao, who joined the bench in May, raised questions that suggest she might have concerns about the lawfulness of the subpoena.
Tatel pushed back against Trump lawyer William Consovoy's argument that House procedural rules did not permit the subpoena seeking documents from the accounting firm Mazars USA. “Mr. Consovoy, the only question before us is this subpoena,” Tatel said at one point.
“This is just financial disclosure, which presidents for years have been doing,” Tatel told Consovoy. “This subpoena seeks documents regarding the president's financial disclosures.”
During another exchange, Millett, a former Akin Gump Strauss Hauer & Feld partner, questioned how the court would be able to test whether House committee members were “genuine” in their assertion that they need the Trump records as part of an effort to craft legislation. Consovoy, of the Washington boutique Consovoy McCarthy, has challenged the committee's statement that it has a legislative purpose in pursuing Trump's financial records.
In May, U.S. District Judge Amit Mehta in Washington issued a ruling that backed the House subpoena. “To be sure, there are limits on Congress's investigative authority,” Mehta said in his ruling, “[b]ut those limits do not substantially constrain Congress. So long as Congress investigates on a subject matter on which 'legislation could be had,' Congress acts as contemplated by Article I of the Constitution.”
Douglas Letter, the House general counsel, on Friday urged the D.C. Circuit to uphold Mehta's decision, which he called “extremely strong.” Letter said any legislation Congress might pass after receiving the Trump accounting records from Mazars would not inherently intrude on the separation of powers between lawmakers and the office of the president.
The House subpoena, Letter argued, “would have very little impact, if at all, on how the president carries out his functions.”
Rao pressed Letter, without success, to provide historical examples where the House had passed a resolution or full vote permitting a committee to pursue a subpoena targeting a president.
“Would you say this is unprecedented, then?” Rao asked during one exchange, suggesting that the subpoena raises constitutional concerns. Letter said the House largely operates now by committees and noted that the subpoena targets Mazars, not the president. “He put himself in this position—and we can't forget that,” Letter argued, noting Trump's refusal to divest interests in various business entities before he was sworn in as president.
Mazars, represented by lawyers from the law firm Blank Rome, has not taken a public position on the House subpoena.
Friday's arguments came as Trump and his business entities face mounting pressure from House Democrats, who are pursuing other subpoenas and court cases that could expose financial records the president has long fought to shield from scrutiny. The D.C. Circuit's ruling will almost assuredly reach the U.S. Supreme Court, perhaps even before the start of the new term in October.
The appeals court is expected soon to decide whether congressional Democrats can proceed with a suit that claims Trump violated the Constitution's restrictions against presidents accepting gifts and money from foreign and domestic sources. Another appeals court ruled this week in Trump's favor in a related suit. The Richmond-based Fourth Circuit said the complaint, filed by the attorneys general for Maryland the District of Columbia, should be dismissed.
Separately, a new case in Washington's federal trial court seeks several years' worth of Trump's tax returns. Justice Department lawyers have defied statutory language that requires the IRS to furnish private tax returns on request by the House Ways and Means Committee. The House's suit, seeking to enforce a subpoena, is pending before U.S. District Judge Trevor McFadden.
Next month, the U.S. Court of Appeals for the Second Circuit will hear a subpoena challenge confronting other Trump business records. In that litigation, House committees are seeking financial records from Capital One and Deutsche Bank, which has long had a business relationship with the New York real estate tycoon and whose lending practices are more broadly facing scrutiny.
Deutsche Bank and Capital One, like Mazars, have not taken a public position on the subpoena. Lawyers from Akin Gump represent Deutsche Bank, and Murphy & McGonigle represents Capital One.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllAbout to Become a Partner? Here's What to Know About Your Newfound Wealth
10 minute readHolland & Knight Hires Chief Business Development and Marketing Officer From EY
2 minute readBankruptcy Filings Surged in First Half of 2024 Amid Uptick in Big Chapter 11 Cases
3 minute readTrending Stories
- 1Senate Judiciary Dems Release Report on Supreme Court Ethics
- 2Senate Confirms Last 2 of Biden's California Judicial Nominees
- 3Morrison & Foerster Doles Out Year-End and Special Bonuses, Raises Base Compensation for Associates
- 4Tom Girardi to Surrender to Federal Authorities on Jan. 7
- 5Husch Blackwell, Foley Among Law Firms Opening Southeast Offices This Year
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250