Trump International Hotel in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit on Tuesday wrestled over whether individual members of the House Oversight Committee can go to court to gain access to documents on President Donald Trump's D.C. hotel.

Circuit Judges David Tatel, Patricia Millett and Senior Judge Douglas Ginsburg questioned whether the court should be involved in a dispute between the executive and legislative branches in the first place. But the panel also pressed a Justice Department attorney on what circumstances federal agencies should be compelled to provide such information to individual lawmakers.

"How can it be that, if Congress can create and abolish the agency, why can't it request information from the agency?" Tatel asked at one point.

The hearing took place as Trump faces a renewed level of scrutiny over whether he is in violation of the Constitution's emoluments clause. However, the clause did not come up during Tuesday's proceedings.

Democrats on the House Oversight Committee sued in 2017, when the House was under Republican control, to gain access to the documents. The lawsuit invoked a rule that says executive agencies should provide requested information to individual members of the House Oversight Committee, if at least seven lawmakers join the request.

Among the documents the Democrats are seeking are records of payments from foreign clients, as well as information on the lease for the hotel.

But U.S. District Judge Amit Mehta threw out the suit in 2018, finding that the individual members of Congress don't have standing to go to court for the documents, because they did not suffer a personal injury.

David Vladeck of Georgetown Law, who is representing the committee members, argued Tuesday that the members have suffered a personal injury because the authority to obtain the Trump hotel information is an "individual right conferred by Congress on a discrete group of people."

He acknowledged that the personal injury is tied to the professional status of the members. But he said that, after the administration refused to comply with the statute, the committee members were effectively forced to go to court.

"Once members of Congress have that right," Vladeck said, "courts ought to enforce it."

But Vladeck faced pushback when he raised the point that the court often rules in inter-branch disputes. Ginsburg noted that the circuit has largely gotten involved when it comes to enforcing congressional subpoenas.

"This is not an action by Congress, or even by the House," the senior judge said.

Ginsburg also raised concerns that ruling for the House Oversight Committee members could open the door for more members of Congress to go to court over battles with the executive branch.

There's "no limit where a small group of members can create an inter-branch dispute" and cause courts to rule on it, Ginsburg said.

Vladeck maintained that the Seven Member Rule was narrow enough that ruling in the committee's favor wouldn't cause that level of issues.

"There is no separation of powers fight here," the Georgetown professor said, adding that the "statute only empowers requests to executive agencies."

Former Jones Day partner Hashim Mooppan, a deputy assistant attorney general at DOJ, argued the lower court ruled correctly in finding that the committee members didn't have standing.

But he faced questioning from Millett about whether the right to access executive branch information might be a "fringe benefit" to sitting on the Oversight Committee and therefore be considered more personal than professional.

Mooppan argued that, if the panel ruled that members could get executive branch information for their private benefit and not for the use of the committee, that could butt up against U.S. Supreme Court precedent. But Tatel and Millett both said the matter before them was standing, and not the merits of the information the DOJ lawyer was referencing.

Millett also repeatedly made comparisons to FOIA requests, asking how this instance differed from a member of Congress seeking information under that law.

Mooppan responded that the Seven Member Rule was crafted solely for oversight purposes, while FOIA can apply to anyone. But both Millett and Tatel said there was nothing in the Seven Member provision that explicitly stated it should only be used for oversight.

If the circuit panel does find that the committee members have standing, the case is likely to go back to district court for further proceedings on the merits of the lawsuit.

Tuesday's hearing came on the backdrop of intense focus on the emoluments clause and whether Trump is violating the provision by profiting from foreign entities while he is in office, without first receiving congressional approval.

Trump faced backlash and further claims that he was violating the clause when his administration announced last week that the 2020 G-7 summit would be held in Trump's Doral resort in Miami. The president reversed that decision over the weekend.

The D.C. Circuit on Tuesday morning also scheduled oral arguments for Dec. 9 in Democratic members of Congress' emoluments lawsuit against Trump. That hearing, too, will focus on standing, as the Democrats are suing in their personal capacity.

The U.S. Court of Appeals for the Fourth Circuit announced last week that it will hear a separate emoluments lawsuit against Trump en banc, after a three-judge panel initially struck down the case. The U.S. Court of Appeals for the Second Circuit also recently resurrected another emoluments lawsuit.

Read more:

En Banc Fourth Circuit Will Reconsider Its Trump Emoluments Ruling

Trump Must Face Emoluments Claims, as 2nd Circuit Revives Lawsuit

Judge Hands Off Emoluments Case to DC Circuit in Win for Trump DOJ