Trump's Demand to Be Notified if Congress Requests NY State Tax Returns 'Astounding,' House Attorneys Say
Such a request, they claimed, has never been granted in court against a member of Congress. That shouldn't change in this case, they argued.
November 15, 2019 at 02:21 PM
6 minute read
Attorneys representing the U.S. House of Representatives said Friday that a request from President Donald Trump to have two weeks notice before a New York state law is used to disclose his tax returns to federal lawmakers was "astounding" and urged a federal judge to reject it.
Such a request, they claimed, has never been granted in court against a member of Congress. That shouldn't change in this case, they argued.
"Undersigned counsel is not aware of any court ever issuing such an order against a Congressional committee or Member of Congress," they wrote.
The filing was the latest effort by attorneys for the U.S. House Ways and Means Committee to throw out a lawsuit from Trump, who's attempting to stop federal lawmakers from taking advantage of the state law.
That law, called the TRUST Act, was enacted in New York earlier this year and is set to allow federal lawmakers to request copies of almost any elected or appointed official who resides in the Empire State.
Trump, earlier this year, sued to strike down the law and prevent Congress from using it. While officials in New York previously agreed to put the law on hold while the litigation was pending, that deal is set to expire next week.
Starting Monday, designated members of Congress will be allowed to, at any time, ask New York state for copies of Trump's state tax returns. Attorneys for Trump asked U.S. District Judge Carl Nichols of the District of Columbia this week to impose restrictions on such a request, setting limits on use of the TRUST Act.
Trump is represented by William Consovoy and Patrick Strawbridge from Consovoy McCarthy.
They asked Nichols to require that Congress give Trump two weeks notice if they plan to request Trump's tax returns from New York. They said, alternatively, that Nichols could require New York to give Trump two weeks notice if they receive a request for his filings.
"Plaintiff believes he is entitled to either form of relief for the reasons set forth in his papers," they wrote.
Attorneys for Trump have claimed their request could be granted through the All Writs Act, a federal law that allows courts to issue relief in cases where it has jurisdiction.
In their new filing Friday, Douglas Letter, general counsel to the House, wrote that the TRUST Act can't be shown to cause immediate injury to Trump until it's actually used by federal lawmakers. And even then, they wrote, there's no guarantee that any tangible harm would be done.
"There is no case or controversy because Mr. Trump has no injury—the Committee has not made a request under New York's TRUST Act for Mr. Trump's tax returns and the New York defendants have not responded to any such hypothetical request," they wrote.
"That should be the end of the matter," they continued.
They rejected Trump's argument that the All Writs Act would give Nichols power to enjoin members of Congress and state officials in New York from immediately requesting, and disclosing, copies of his tax filings.
If Trump's request is granted, they warned, such a decision could lead to a slippery slope in future uses of the All Writs Act. Someone could use the All Writs Act to block a subpoena from Congress to a third party under the same theory, they argued.
"The [All Writs] Act is not the panacea that Mr. Trump envisions, and his arguments disregard the text of the statute and the case law interpreting it," they wrote.
Trump first moved to block Congress from taking advantage of the TRUST Act in July, when his attorneys also claimed the All Writs Act should provide him with that emergency relief. New York, instead, agreed to put the TRUST Act on hold for the time being.
That was until Nichols, in a decision earlier this week, dropped New York Attorney General Letitia James and State Tax Commissioner Michael Schmidt from Trump's lawsuit, saying they couldn't be sued over the TRUST Act in Washington, D.C.
Attorneys for the House wrote that, instead of seeking relief under the All Writs Act, Trump could move for a preliminary injunction against the law. But they predicted that effort would fail.
"Mr. Trump has not even attempted to argue that the equities and public interest favor an injunction, which may explain why he styles his request as a bid for relief under the All Writs Act rather than a more typical motion for a preliminary injunction," they wrote.
They argued that Trump won't be able to argue for relief until he's been harmed. That's not even a possibility until the TRUST Act is used, they said. For now, they're asking Nichols to throw out Trump's challenge to the law because, they said, he has nothing to sue over.
It was also suggested in the filing that, even if the TRUST Act is used by members of Congress, Trump may not be able to sue over it in Washington, D.C. The purported injury would come from New York, where the disclosure of his tax filings would originate, they said.
"If use of the TRUST Act causes any injury to Mr. Trump, that injury would be traceable to New York," they wrote.
Nichols, in his decision earlier this week, suggested that Trump could bring a lawsuit in New York to stop state officials from enforcing the law, and to evaluate its constitutionality. Attorneys for Trump have said they don't plan to do that.
The Commerce Department declined to comment on the new filing. The U.S. Department of Justice did not immediately respond to a request for comment.
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