WASHINGTON — A federal judge pressed House attorneys Thursday on whether they will drop part of a lawsuit to enforce a subpoena for six years of President Trump’s federal tax returns.
The questioning from U.S. District Judge Trevor McFadden during a hearing in Washington came less than a week after a federal appeals court ruled that Congress cannot sue to compel executive branch officials to testify. The judge had earlier decided to delay his decision in the Trump tax case saying he wanted to wait on a ruling from the appeals court matter because it presented similar legal claims.
“I don’t think the committee seriously disagrees … that under the panel’s opinion, their subpoena is dead,” McFadden told lawyers for both the Democratic-led House Ways and Means Committee and the Justice Department.
The Justice Department has sought to toss out the case based on White House claims of immunity from congressional oversight.
House Deputy General Counsel Josephine Morse asked for time, saying it planned as early as Friday to request a rehearing by the full U.S. Circuit Court of Appeals for the District of Columbia Circuit in the case of former Trump White House counsel Donald McGahn. Last week the judges, in a 2-to-1 panel ruling, overturned a trial judge’s order that McGahn must comply with a House subpoena to testify in Congress’s impeachment probe.
The majority ruled that “the Constitution forbids federal courts” from being dragged into such kinds of political disputes between the two elected, legislative and executive branches of government, saying Congress can enforce its demands for information through other checks-and-balances such as its power over appropriations.
Morse requested to inform the judge by March 13 on whether it would drop its subpoena claim and file legal arguments why the House may continue asking the court to back its demand for Trump’s tax returns.
The House has argued it can go to court under a basis that was not an issue in the McGahn case, namely that it may sue to enforce a 1924 law that gives the tax-writing committee authority to seek tax returns and other records in overseeing the effectiveness of the Internal Revenue Service’s audit programs.
McFadden agreed to the deadline and said he was open to further briefing on whether Congress has standing to sue on that question, but warned he did not want to split or decide the case piecemeal because of the risk that further appeals in the McGahn case would keep disrupting the litigation.
The House sued the administration last July after Treasury Secretary Steven Mnuchin refused to comply with a subpoena for Trump’s business and tax records issued in May.
McFadden in January announced he would delay ruling on the Trump administration’s request to toss out the lawsuit until a ruling in McGahn’s case, a stay now lifted.
Even if the House eventually prevails, it remains unclear whether appeals in the McGahn case can be resolved before Congress’s request for Trump’s tax returns expire when this term of Congress ends after the November election.
At oral arguments in November, McFadden said he was “dubious” about the department’s claim that Congress cannot go to court to enforce its legal demand for information because doing so would “supplant the centuries-old process of political negotiation” between the executive and legislative branches.
The judge acknowledged arguments that such an absolute position could stymie any congressional investigation of the executive branch. McFadden invoked Trump’s acting chief of staff, Mick Mulvaney, who has said Democrats will “never” see the president’s tax return. The judge asked what else Congress could do when the administration refused to comply.
Trump is the first president since the 1970s not to release his tax records. Mnuchin has said the subpoena “lacks a legitimate legislative purpose” and is instead part of “a long-running, well-documented effort to expose the President’s tax returns for the sake of exposure,” according to Trump’s court filing.
House lawyer Megan Barbero said the law clearly states the treasury secretary “shall furnish” tax return information requested by the tax-writing committee. “Even in politically fraught cases,” she said, “it is the duty of the court to weigh in and say what the law is.”
House Democrats sued in July, citing investigative reports that allege Trump has engaged in aggressive, decades-long tax avoidance schemes. House Democrats said they seek to determine if he took inappropriate advantage of tax laws.
The committee sought the records citing a provision of the federal tax code prompted by the Teapot Dome bribery scandal involving the administration of president Warren G. Harding in the early 1920s.
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