A federal appeals court appeared ready Monday to let a House committee get some of former President Donald Trump’s records from accounting firm Mazars USA, but the judges expressed concerns that lawmakers cast too wide of a net in the subpoena.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in Trump’s challenge to the House Oversight and Reform Committee investigation, the latest action in a more than two-year legal showdown over separation-of-powers concerns that has included a trip to the Supreme Court.
The D.C. Circuit panel is reviewing an August ruling from a district court judge who found that the House committee could get some, but not all, the information it sought in the most recent version of the subpoena.
To do so, the D.C. Circuit has to consider a new test the Supreme Court laid out last year for when Congress can subpoena personal financial records of a president for a legislative purpose without implicating separation-of-powers concerns.
Except now Trump is an ex-president, one part of the unsettled legal area around the subpoena that means the case seems likely to wind up at the Supreme Court again no matter what the panel rules.
At issue are records the committee seeks on Mazars’ work related to Trump’s lease on his company’s redevelopment of the Old Post Office Building in Washington, D.C., as a luxury hotel; related to whether foreign governments had paid millions of dollars to Trump businesses while he conducted foreign policy affecting those governments, in violation of the emoluments clauses of the Constitution; and related to Trump’s presidential conflicts of interest and financial disclosures.
Judge Ketanji Brown Jackson, in questioning with House General Counsel Doug Letter, said that she was surprised when she looked at the committee’s subpoena, because she thought it would have more specifics about the categories of records the House sought.
“The subpoena raises a question about whether what’s really going on here is more of the kind of dragnet fishing expedition that we all agree the Supreme Court says you can't do,” Jackson said.
Letter responded by highlighting that the new test from the Supreme Court was only for a sitting president. And he pointed out, for example, that Congress might want to define what emoluments are, because lawmakers have learned some the terms of some of Trump’s loans changed before he became president.
“Then when he’s president, does that mean that he was paying less on a debt then he would have been before, and that would be an emolument?” Letter said.
Circuit Chief Judge Sri Srinivasan responded that it “seems tough” to argue that the full range of the subpoena, such as every document Mazars had related to Trump’s financial disclosures, could be justified by another part of the subpoena, such as looking into the hotel lease.
And Srinivasan also said that the more it seems like Trump’s financial arrangements were historically complicated, multi-layered and unique, the less it seems like that information is going to be relevant for predicting issues that a future president might present.
“Then it starts to look like, why look into that highly, highly, highly unique situation to inform future circumstances that are very, very unlikely to present those kinds of considerations again,” Srinivasan said.
Letter said the House needs to look at what happened with Trump because there were serious problems that could have been major national security concerns because of Trump’s financial interests with Saudi Arabia, Turkey and Russia. “There is so much smoke here, it’s blinding,” Letter said. “And it’s hard to breathe, because there’s so much of it.”
Judge Judith Rogers asked Letter how far a court’s authority goes to reshape the scope of the subpoena. “I’m concerned that the court not view itself as some sort of superintendent here of the committee’s decisions, in terms of what is a relevant inquiry for purposes of future legislation, even if it proves to be wrong,” Rogers said.
Letter responded that the court should only strike down some part of a congressional subpoena, “if it really is quite clearly beyond Congress’s authority.”
“And in fact, there aren’t many Supreme Court cases, or cases from this court, where you find that the courts have said, ‘Well, this subpoena has a valid legislative purpose but this one point just goes too far,’” Letter said.
An attorney for Trump, Cameron Norris, told the judges that the problem with the House rationale for seeking financial records to consider a new disclosure law is that “it’s utterly limitless.” It could be about tax records, or medical records, “you could say that about anything,” Norris said.
And Norris told the panel that there are still separation-of-powers concerns in the case even if Trump is no longer president, because the threat of intrusive subpoenas on presidents, their families and their businesses can have a chilling effect on how they deal with Congress when in office.
“It would affect how you deal with Congress if you knew that they could expose your entire financial history to the public as soon as you leave office,” Norris said. “That threat would loom large over everything you're doing. It also would allow Congress to influence who can run for president, who can be president, because they would be allowed to expose this type of information to influence that process as well.”
Letter began his part of the argument with a straightforward request that the D.C. Circuit panel rule quickly “so that the Oversight Committee has the ability to carry out its responsibility.”
The House committee first subpoenaed Trump’s financial information in April 2019. The committee chairman who first issued the subpoena, Rep. Elijah E. Cummings of Maryland, died in October 2019. House Oversight and Reform Chair Carolyn Maloney, D-N.Y., reissued it in February after Trump left office.
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 predicted it will make it significantly more difficult for Congress to exercise its oversight powers.