President Donald Trump arrives at Morristown municipal airport for a weekend at the Trump National Golf Club in Bedminster, New Jersey, August 2, 2019.
Yuri Gripas | Reuters
Attorneys for President Donald Trump returned to the Supreme Court on Friday to ask the justices for the second day in a row to block a demand for his income tax returns — this one from House Democrats.
On Thursday, Trump’s lawyers asked the Supreme Court to hear their appeal of a lower-court ruling that would allow the Manhattan District Attorney’s Office to obtain eight years’ worth of Trump’s personal and corporate tax returns from his accountants as part of its criminal investigation.
In their emergency application filed on Friday, Trump’s lawyers asked the justices to temporarily halt another subpoena for his tax returns to issued to his accountants at Mazars USA by the House Oversight Committee. The firm has said it will hand over the records if it is required to.
“For the first time in our nation’s history, Congress has subpoenaed the personal records of a sitting President from before he was in office,” the president’s attorney Jay Sekulow said in a statement. “And, for the first time in our nation’s history, a court upheld a congressional subpoena to the President for his personal papers.”
“Those decisions are wrong and should be reversed,” he said.
It take five justices to vote to grant a stay.
The nine-member high court has five Republican appointees. Two of them, Justice Brett Kavanaugh and Neil Gorsuch, were appointed by Trump.
The Supreme Court is expected to decide whether to grant the stay before Wednesday, when the subpoena would otherwise be enforced.
William Consovoy, another one of the president’s private attorneys, warned in the application that letting the lower court’s opinion stand would burden presidents with an onslaught of congressional demands.
“Given the temptation to dig up dirt on political rivals, intrusive subpoenas into the personal lives of Presidents will become our new normal in times of divided government — no matter which party is in power,” he wrote.
Trump’s moves in both cases, which could result in landmark Supreme Court decisions, come as the president faces what is only the fourth presidential impeachment inquiry in American history, and as he seeks reelection next year.
The House is investigating Trump for pressuring Ukraine to investigate former Vice President Joe Biden, the front-runner for the Democratic presidential nomination.
If the Supreme Court takes one or both of the cases, it would decide them by the end of the court’s term in June — less than five months before voters head to the polls to elect the next president..
Trump has vigorously fought to keep his tax returns secret, even after claiming he would release them to the public. He is the first president since Gerald Ford to not publicly reveal his tax returns. Even as his lawyers fight at the Supreme Court to keep his tax returns private, the president is fighting battles in lower courts in related matters.
Although both cases at the Supreme Court involve Trump’s tax returns, they have different origins and raise different legal questions.
The case involving Manhattan D.A. Cyrus Vance Jr.’s office raises the question of whether a state prosecutor can obtain financial records related to a president as part of a criminal investigation.
In that case, Trump’s lawyers are arguing that a president cannot be criminally investigated or charged while in office.
That question has never been decided by the Supreme Court — so if the high court takes the appeal of Vance’s subpoenas it could resolve the question of presidential criminal immunity, setting a precedent that could apply in all future cases.
Vance’s office is known to be investigating — at the very least — how the Trump Organization accounted for hush money payments made in the months before the 2016 presidential election by others to two women who claim they had affairs with Trump years before.
Trump denies having sex with either of the women, porn star Stormy Daniels and former Playboy model Karen McDougal.
Daniels was paid $130,000 by Trump’s then-lawyer and fixer Michael Cohen, who later was reimbursed by both Trump personally and by the Trump Organization, ostensibly for legal services. McDougal was paid $150,000 by the publisher of The National Enquirer, the supermarket tabloid newspaper, which was a supporter of Trump.
A federal district court judge in Manhattan in October dismissed Trump’s lawsuit seeking to block the subpoena. Trump then lost his appeal of that ruling to the 2nd U.S. Circuit Court of Appeals, which prompted his petition to the Supreme Court.
The second case, related to the subpoena issued by the House committee, involves the constitutional separation of powers between the legislative and executive branches of government.
The Democratic-led House Oversight Committee issued its subpoena to the Mazars accounting firm for Trump’s tax returns on April 15 — Tax Day. The committee said the records would be of use in the panel’s investigation of ethics-in-government laws.
Read the filing:
The committee’s action came in response to a finding from the Office of Government Ethics that Trump failed to reveal on his financial disclosure report the debt that he owed to Cohen for the lawyer’s payment to Daniels.
In October, a three-judge panel of the U.S. Circuit Court of Appeals in the District of Columbia rejected in a 2-1 vote the president’s arguments that the subpoena was an overreach of Congress’s authority.
“Having considered the weighty interests at stake in this case, we conclude that the subpoena issued by the Committee to Mazars is valid and enforceable,” Circuit Judge David Tatel wrote in the majority decision.
Trump’s attorneys then requested that the entire D.C. appeals court panel rehear the case.
On Wednesday, the court denied that request by a vote of 8-3.
That decision prompted two sharp dissents.
One of them came from Judge Neomi Rao, whom Trump appointed to replace Kavanaugh after tapping him to the Supreme Court.
Rao wrote that the decision “shifted the balance of power between Congress and the President and allowed a congressional committee to circumvent the careful process of impeachment.”
In addition to the House Oversight Committee’s subpoena, the House Ways and Means Committee had demanded that the IRS and the Treasury Department turn over Trump’s federal income tax returns.
The IRS and Treasury have refused to do so, despite a section of the federal tax codes that says Treasury “shall furnish” an individual’s returns if the committee formally requests them.
The Ways and Means Committee is suing the agencies to obtain the returns.
Earlier this week, a federal judge dismissed a lawsuit by Trump that sought to bar the committee from using a newly enacted New York state law to obtain the president’s state income tax returns. Those state tax returns would contain much of the same information that is on his federal tax returns.
Neither that committee nor the two other congressional committees that have the authority to obtain a president’s tax returns under the New York law has actually invoked it to get Trump’s state returns.
