A federal appeals court in Washington grappled Tuesday with how to move forward on a House lawsuit to enforce subpoenas for President Donald Trump’s personal and business financial records — with judges suggesting the court might wait until this session of Congress ends Jan. 3.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held oral arguments in the long-running legal fight about committee subpoenas for Trump records from auditing firm Mazars USA and other financial institutions that date back as far as April 2019.
The Supreme Court issued a July 9 opinion on the case that did not resolve the Trump-House dispute over the subpoenas but instead laid out a test for what Congress and the courts must do before subpoenas for a president’s records can be enforced. The opinion then sent the cases back to lower courts to reexamine.
The panel on Tuesday worked through issues about whether it could decide the case now or send it back even lower to a federal district court judge, or whether it even makes sense to decide anything before the new Congress.
Judge David Tatel pointed out that the timing of the lawsuit closely matches that of an Oct. 6, 2008, decision in a case about a House subpoena for Harriet Miers, former White House counsel during the George W. Bush administration.
In that decision, the D.C. Circuit noted that the subpoenas would expire along with that session of Congress, and by waiting until the new session of Congress, the courts could see if the issue was moot and get the “additional benefit of permitting the new President and the new House an opportunity to express their views on the merits of the lawsuit.”
Tatel also pointed out that the full D.C. Circuit, on Oct. 15, agreed to hear a case about the House Judiciary Committee’s subpoena for former White House counsel Don McGahn and set oral arguments for Feb. 23.
That order cited the Miers case and also asked the parties to address in briefs “whether the case would become moot when the committee’s subpoena expires” upon the conclusion of the 116th Congress.
“You have two D.C. Circuit instances, where under circumstances almost identical to this, we have decided it is best not to act until the new Congress is in place,” Tatel said. “It’s hard for me to see how we avoid that in this case.”
Doug Letter, the House general counsel, urged the court to move quickly, saying that the full House or committee chairs, who are selected in December, could issue new subpoenas and continue the litigation on the first day of the new Congress.
This case is different than the Miers case, Letter said, because the Supreme Court already ruled on most of the legal arguments. But he instructed the D.C. Circuit to weigh the separation of powers issues when part of Congress wants to subpoena the personal documents of a president.
“We think most of the key issues in this case have already been decided and not touched by the Supreme Court. That’s why it seems to me this court could and should rule,” Letter told the panel.
“This litigation has been going on for an extremely long time, and there’s no good reason for the court not to issue its decision, issue its mandate and we’ll see what happens,” Letter said.
But Judge Patricia Millett hinted that the court might want to wait and see what happens with the election and the new Congress instead.
“The majority could change, everything could change,” Millett said during a line of questions that settled that the subpoenas would have to be issued again by the new Congress.
“Obviously, if you have a change in parties, if you have a change in membership or if you are issuing new subpoenas, it’s sort of a logical time to revisit issues,” she said.