“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
Dissents by Trump D.C. Circuit judges Greg Katsas and Neomi Rao to the full court’s November decision that upholds Congress’ authority to subpoena the president’s tax records will effectively send the important case to the Supreme Court. As the majority in the October three-judge panel decision pointed out, Trump’s position threatens to “enfeeble the legislative branch” in conducting oversight of the President and executive branch agencies. The case is Trump v. Mazars USA.
As explained in a previous entry to PFAW's Confirmed Judges, Confirmed Fears blog series, a majority of a D.C. Circuit three-judge panel affirmed a district court opinion and upheld a congressional subpoena for financial records related to President Trump that was issued to his accounting firm. Judge Rao dissented from that ruling, arguing not only that the subpoena should be quashed, but also that Congress cannot do any investigation whatsoever relating to possible illegal conduct by a president or other impeachable official except in the specific context of an impeachment investigation. Based on a careful review of the Constitution, history, and precedent, the majority firmly rejected that view, pointing out that it was supported by “nothing in the Constitution or case law” and that it would lead to “legislative paralysis” of oversight work whenever there is an allegation of executive wrongdoing.
Trump’s lawyers tried to get the full D.C. Circuit to rehear the case, and eight of the 11 judges, including one George W. Bush appointee, rejected their petition. Judges Rao and Katsas dissented, joined by one George H.W. Bush appointee. Rao essentially repeated the position in her panel dissent, adding that even Congress’ later resolution authorizing an impeachment investigation does not validate what she called a “defective subpoena.” Katsas’ dissent asserted that the decision upholding the subpoena poses a “threat to presidential autonomy and independence.”
Shortly after the full court ruling, Trump lawyer Jay Sekulow specifically referred to what he called the “well-reasoned dissent” in announcing that Trump will now try to get the Supreme Court to review the case. We do not know whether the Court will agree to hear the case; if it does, the decision is likely to be issued by next June. But Rao’s and Katsas’ narrow views on Congress’ authority to investigate and then curtail executive abuses of power, if adopted by the Supreme Court’s conservative majority, which also includes two Trump appointees, would seriously damage our constitutional system of checks and balances.