House restarts push to enforce subpoena for Trump financial records

Case is all but certain to be appealed, possibly to the Supreme Court

Chairwoman Carolyn Maloney, D-N.Y., at a House Oversight and Reform Committee hearing in August.  (Tom Williams/CQ Roll Call file photo)
Chairwoman Carolyn Maloney, D-N.Y., at a House Oversight and Reform Committee hearing in August. (Tom Williams/CQ Roll Call file photo)
Posted March 4, 2021 at 1:07pm

The federal courts have spent so long deciding whether House Democrats could subpoena Donald Trump’s personal financial records from his accounting firm that the ongoing legal saga has a new wrinkle: What changes now that he’s a former president?

The House Oversight and Reform Committee reissued the subpoena to Mazars USA last month, and it is identical to the one from 2019 that ultimately led the Supreme Court to issue a new test for when Congress could obtain those records.

The case restarted Thursday back at the U.S. District Court in Washington, where Judge Amit P. Mehta is ready to make a decision quickly for a few reasons — with a hearing about who should win in June.

First, the case is all but certain to head back to appellate courts and even the Supreme Court no matter how Mehta rules on whether the subpoena can be enforced.

And second, Trump’s lawyers and the House don’t dispute any facts in the case, only whether those facts meet the new legal test the Supreme Court set.

On a conference call Thursday, Mehta asked lawyers for both sides what has changed, since the original subpoena was directed to a sitting president, the Supreme Court’s decision was about the standard to apply to a sitting president.

“Does the Supreme Court’s decision have any further relevancy now, now that the sitting president is no longer the president and the subpoena is directed to a private citizen?” Mehta asked the lawyers. “And have we litigated for two years to come back to the standard I applied two years ago?”

Megan Barbero, a lawyer for the House, told Mehta the subpoena already meets the Supreme Court’s four-part test it laid out in a July 2020 opinion, which also sent the case back to the lower courts to decide if the Mazars subpoena meets that test.

But the House plans to argue that Trump’s ouster from the White House in the November 2020 election means it is easier for the House to meet those standards, such as one related to separation-of-powers concerns about whether the subpoena would be a burden on a president.

Cameron Norris, an attorney for Trump, told Mehta that in prior cases those concerns apply to past presidents as well, and that it wouldn’t be fair to have the House have its interests in the information based on Trump as president, but then have that subpoena tested as if he were no longer president.

“The subpoena was issued while he was president, it was reissued under a House rule that allowed the house to issue prior subpoenas again,” Norris said. “And so it’s that prior subpoena, its investigative mission, that justifies this subpoena still.”

Those arguments will be submitted to the court in the coming months. House committees first subpoenaed Trump’s financial information in April 2019. The committee chairman who first issued the subpoena, Rep. Elijah Cummings of Maryland, died in October 2019.

The Supreme Court ruling in July 2020 for the first time put limits on congressional power to subpoena a sitting president’s personal and business information, and experts say it will make it significantly more difficult for Congress to exercise its oversight powers.

Oversight Committee Chairwoman Carolyn B. Maloney, in a Feb. 23 memo to committee members, wrote that Congress still needs the information in Trump’s personal financial records. She reissued the subpoena two days later.

“For more than 22 months, the Committee has been denied key information needed to inform legislative action to address the once-in-a-generation ethics crisis created by former President Trump’s unprecedented conflicts of interest,” Maloney wrote.

“The Committee’s need for this information — in order to verify key facts and tailor legislative reforms to be as effective and efficient as possible — remains just as compelling now as it was when the Committee first issued its subpoena, and the Committee’s legislative efforts remain just as critical to the American people as they were before President Trump vacated the White House on January 20, 2021.”