Judges appear deeply skeptical of Trump arguments against financial records subpoena

A panel of federal appeals court judges on Friday appeared deeply skeptical of President TrumpDonald John TrumpSupreme Court comes to Trump's aid on immigration Trump is failing on trade policy Trump holds call with Netanyahu to discuss possible US-Israel defense treaty MORE’s arguments against a congressional subpoena seeking his financial records.

The judges on the D.C. Circuit Court of Appeals heard arguments in Trump’s appeal of a lower court ruling upholding a subpoena issued by House Oversight and Reform Committee Chairman Elijah CummingsElijah Eugene CummingsPence extends olive branch to Cummings after Trump's Baltimore attacks Infrastructure needed to treat addiction as chronic disease doesn't exist GOP retreat creates WiFi password blasting socialism MORE (D-Md.) for the president’s records from the accounting firm Mazars.

The arguments stretched on for twice the amount of time they were scheduled to take, underscoring how seriously the judges are weighing the case and the legal issues it raises.

ADVERTISEMENT

The president’s lawyers have argued that the subpoena serves no legitimate legislative purpose and instead serves as a form of “law enforcement,” an argument reiterated before the panel of judges on Friday.

Trump attorney William Consovoy told the panel that he had concerns over whether the lawmakers could issue the subpoena for the president’s records in the first place, as House rules do not explicitly state that the president can personally be targeted.

But the judges seemed doubtful of that claim, and argued that the previous rulings that Consovoy was citing weren’t relevant to the case.

“There’s no sign of this altering the relationship between the president and the Congress,” Judge David Tatel said. “This is just financial disclosure, which presidents for years have been doing.”

Consovoy also claimed that the subpoenas don’t have a “legitimate legislative purpose” — an argument the judges were also quick to oppose.

The panel pointed to pieces of legislation that have already been passed that could relate to the subpoena, such as provisions in H.R. 1 relating to the president’s finances, and asked how they could be expected to ignore that kind of evidence.

And Judge Neomi Rao, a Trump appointee, asked why the Department of Justice wasn’t involved in the case if the president believes the subpoena would impact his ability to carry out the duties of his office.

Consovoy said he couldn’t answer the question.

Tatel, a Clinton appointee, also pushed back against Consovoy’s suggestion that the possibility of a subpoena might prevent others from running for president because it would lead to the disclosure of their financial records. He said he doesn’t “see why this limits anybody’s ability to run for president.”

Judge Patricia Millet, nominated by former President Obama, said that it would make sense for lawmakers to scrutinize a sitting president.

“You keep talking like they picked some individual off the street to target,” Millet said. 

Oversight of the president “sounds OK to me,” she added.

Tatel and Millet homed in on Consovoy’s assertions that the president is protected from this kind of scrutiny from Congress, with Tatel calling such an implication “stunning.”

“I still don’t understand why, if Congress is interested in determining whether the financial disclosure laws are adequate,” they couldn’t obtain the president’s financial records, Tatel said.

ADVERTISEMENT

And the judges were further wary of the claims that the subpoenas could serve as a form of law enforcement. They asked why, if Congress believes that wrongdoing may be occurring in the office of the president, lawmakers couldn’t conduct the kind of oversight needed to confirm those facts and then pass laws accordingly.

“Isn’t that what Congress would always do if it seeks to amend a piece of legislation” to address potential issues within the executive branch, Tatel asked Consovoy.

While the panel of judges was skeptical of the claims brought on behalf of the president, they also raised concerns about Congress’s investigatory authorities to House general counsel Douglas Letter.

When asked multiple times whether there was an example of a House committee issuing a subpoena in relation to the president, Letter did not provide a response that seemed to satisfy Rao.

However, he maintained, the House Oversight and Reform Committee has broader powers to investigate than other House panels and that the request for documents relating to Trump falls well within those authorities.

And he said that because the subpoena was technically issued to a third party, Mazars, and not the president himself, it doesn’t raise larger issues surrounding separation of powers.

Much of the questions presented to Letter also surrounded the Emoluments Clause of the Constitution, which some, including Democratic lawmakers, allege that Trump is violating, particularly with the ownership of the Trump International Hotel in D.C.

The House attorney said that by getting Trump's financial records, lawmakers could obtain more details on the president's connections to the hotel and potentially pass legislation further defining what an emolument is.

Millet pressed Letter on the fact the records requested were for a period of time before Trump took office. She asked if that means that lawmakers could then ask for records that stretch back to when a president was 18, "or even birth.”

Letter replied that the House needs records for an extended period of time to look for any irregularities in Trump’s finances.

However, he promised — to laughter — that the House will “never” seek a president’s diary from when he was 7 years old.

It’s unclear when the panel of judges will rule on the matter. The case was placed on an expedited schedule, meaning a decision could land in the near future.

Trump has vowed to fight any subpoenas issued in House Democrats' myriad investigations into him, his administration, his businesses and his family.

D.C. District Judge Amit Mehta, an Obama appointee, ruled to uphold the subpoena to Mazars earlier this year. And a federal judge in New York has also ruled in favor of a subpoena for Trump's records to Deutsche Bank and Capital One.

Legal experts have regularly said they believe that the congressional subpoenas will be upheld in court, as the Supreme Court has sided with Congress's investigatory powers in the past.

The 2nd Circuit Court of Appeals will hear arguments next month on the appeal of the Deutsche Bank order.