BuzzFeed’s Zoe Tillman reveals some truly terrible news for President Donald Trump’s efforts to resist a congressional investigation into his finances.
Here's something we do know: If Trump files an emergency motion to delay yesterday's order, it would go to a monthly motions panel. Right now that's Judges Tatel, Millett, and Rao. So no Garland there. That's different from whatever merits panel is later assigned 9/x
— Zoe Tillman (@ZoeTillman) May 21, 2019
To explain, on Monday, federal District Judge Amit Mehta ruled that Trump’s accounting firm must comply with a congressional subpoena seeking many of Trump’s financial records. Just as significantly, Mehta denied Trump a stay of this decision that lasts longer than one week. Thus, unless Trump’s lawyers can convince a higher court to issue such a stay by next Monday, the House Oversight Committee will soon know a whole lot more about Trump’s personal finances.
As Tillman reports, Trump’s request to stay Mehta’s decision will be heard by a motions panel consisting of Judges David Tatel, Patricia Millett, and Neomi Rao — at least assuming that this case proceeds through ordinary procedures and none of these three judges recuses. Tatel is a Clinton appointee. Millett is an Obama appointee. Rao is a Trump appointee. The case is Trump v. Committee on Oversight and Reform of the United States House of Representatives.
As Mehta explains in his opinion, Trump’s legal arguments are extraordinarily weak. Though “there are limits on Congress’s investigative authority,” Mehta wrote, those limits “do not substantially constrain Congress.” Rather, “so long as Congress investigates on a subject matter on which ‘legislation could be had,’ Congress acts as contemplated by Article I of the Constitution.”
There are many reasons why a congressional investigation into a sitting president’s finances is valid, and Mehta lists quite a few in his opinion, including the fact that “the requested records will aid [Congress’] consideration of strengthening ethics and disclosure laws, as well as amending the penalties for violating such laws.”
Indeed, if anything, the law is even more favorable to the House’s position than Mehta suggests. As law professor Michael Dorf writes, Congress may “conduct investigations that are relevant to one of its constitutional powers.” By this standard, there are any number of reasons why the House may obtain the records that it seeks.
The subpoenas are valid because they are probative of whether additional ethics legislation is needed to prevent presidential corruption. They are valid because Congress has the power to approve any gifts the president receives from a foreign government, and Trump’s financials records could reveal if Trump is acting without such approval. And they are valid because Congress has impeachment power, and it needs to be able to investigate federal officials to determine whether they are worthy of impeachment.
So the law is quite clear here. Indeed, it is so clear that only the most hackish, Trumpy judge could rule in Trump’s favor.
The good news for Trump is that Neomi Rao is probably that judge. Rao, who previously served as Trump’s “regulations czar,” once criticized a French court decision upholding a ban on “dwarf tossing,” on the theory that the ban coerced little people into not being tossed around by drunk people. She questioned a Supreme Court decision protecting marriage equality because it did not give enough respect to anti-LGBTQ groups that seek “recognition exclusively for traditional marriage.” As a college student, she wrote that the concept of date rape, “exemplifies the attempts of the nurture feminists to develop an artificial, alternative world in which women are free from sexual danger and ‘no always means no.’”
But there’s only one of Rao on the three-judge panel. And Tatel and Millett are thoroughly normal people who most likely can be trusted to read the law in a normal way. Trump might get a dissent from Rao arguing that the law should not apply to him, but that’s all he’s likely to get.
That doesn’t mean that Trump will ultimately prevail in the Supreme Court — at least three members of that court bear far more resemblance to Rao than they do to Talel or Millett. But it does mean that Trump will need Chief Justice John Roberts’ vote to bail him out in this case. And Roberts’ vote is, at the very least, more uncertain than Rao’s.
UPDATE: A second federal district judge, Judge Edgardo Ramos, just ruled against Trump in a similar case seeking Trump’s financial records from two banks.
BREAKING: Ramos WON'T preliminarily enjoin the subpoenas.
— Adam Klasfeld (@KlasfeldReports) May 22, 2019
UPDATE 2: The House committee appears to have reached a deal with Trump’s lawyers to delay further action on this case for several months, in return for an expedited hearing on the merits in the DC Circuit.
NEW: Trump's lawyers and the House Oversight Committee have asked the DC Circuit to expedite his appeal re: the subpoena to his accounting firm. If the court agrees, the House agreed to suspend the deadline for the company to produce documents https://t.co/k6XtzUoJTS pic.twitter.com/gfmLs1zFir
— Zoe Tillman (@ZoeTillman) May 22, 2019
Assuming that the court agrees to this deal, the practical result will be that the panel of Tatel, Millett, and Rao will not rule on an emergency motion for a stay — indeed, such a motion will not be filed. Most likely within several months, the DC Circuit will hand down a decision after a full round of briefing on the merits and an oral argument. Whoever loses will almost certainly seek review in the Supreme Court.