Trump Tax Return Cases Could Put Time Squeeze on Supreme Court
The Supreme Court on Monday put on hold enforcement of a U.S. House subpoena for Trump financial records. The court could decide as early as Thursday whether—and when—to hear Trump's arguments for keeping his tax return information secret.
November 18, 2019 at 03:09 PM
4 minute read
The original version of this story was published on National Law Journal
Despite putting a temporary hold Monday on a decision approving a U.S. House Committee subpoena for President Trump's financial records, the U.S. Supreme Court soon will face a more critical question: whether to hear and decide the president's separation-of-powers challenge in the current term.
Chief Justice John Roberts Jr. on Monday issued the order blocking the appellate court's decision to leave untouched an October panel decision that said Trump's accounting firm, Mazars USA, must respond to the House subpoena for eight years of financial information.
Roberts' order said the D.C. Circuit ruling is stayed pending the filing of a response from the House to a request last week by Trump's lawyers. Roberts has given House lawyers until 3 p.m. Thursday to respond to Trump's request to block enforcement of the subpoena.
Consovoy McCarthy partner William Consovoy, a lead attorney for Trump, filed an emergency application last week asking the high court to block the subpoena until Trump can ask the justices to review the merits of the president's challenge. Mazars, represented by lawyers from Blank Rome, have taken no public position on enforcement of the subpoena.
If referred to the full court, five justices are required to approve an emergency stay. Granting the request, however, is not a guarantee that the court ultimately will grant review to a petition on the merits.
Given the high court's normal scheduling for briefing petitions for review, the justices' consideration of Trump's petition on the merits—if one is filed—could push the case into next year and into the next term. The justices generally stop adding new cases to their docket in mid-January.
In their response to the Trump request for a stay of the subpoena, House lawyers, led by general counsel Douglas Letter, are expected to urge the justices to deny Trump's request to put the Mazars subpoena on hold. But they may suggest that if the court disagrees with them, the justices should expedite briefing and arguments on the merits so that a decision could be reached in the current term.
The high court may face a similar question of timing in a second case involving Trump's finances.
Last week, Trump's personal lawyer, Jay Alan Sekulow, along with Consovoy, filed a petition for review challenging a Second Circuit decision upholding a subpoena from Manhattan district attorney Cyrus Vance Jr. for the president's financial records in connection with a grand jury investigation. The response from Vance is due Dec. 18. Vance is investigating hush-money payments made to two women who alleged sexual relationships with Trump before he was elected in 2016. Sekulow did not request expedited consideration of the case.
Trump campaigned on a promise that he would release his tax returns, as modern presidents have done, but has since refused to disclose that information. Several lawsuits in Washington and New York federal courts have confronted the secrecy of those records.
U.S. District Judge Carl Nichols in Washington on Monday was set to hear arguments from Trump's lawyers in a bid to deny a House committee the power to obtain copies of Trump's New York tax returns from state officials. The committee's leaders have not made such a request, and House lawyers contend it would be improper for Nichols to issue an order blocking the future ability to seek those records.
Separately, U.S. District Judge Trevor McFadden in Washington is weighing a House lawsuit seeking Trump's tax records from the IRS and Treasury Department. Federal law allows the House Ways and Means Committee to obtain those records. Trump's lawyers, backed by U.S. Attorney General William Barr, argue Congress has no legitimate legislative interest in obtaining those records.
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