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Hooray, it is Trump v. Mazars day. AGAIN. Because it is always and forever 2020.

In 2019, various House Committees, newly under the control of a Democratic majority, subpoenaed then President Trump’s accounting company Mazars USA, LLP for a mountain of financial documents on the theory that it would inform the legislative process. Trump sued his accountants, with a boost from Bill Barr at the DOJ, and in 2020, the Supreme Court issued a spiffy, new four-part test for congressional subpoenas of a sitting president’s personal records.

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In light of the requirement that he evaluate for (1) relevance to legislative purpose, (2) overbroadness, (3) whether the materials could be obtained elsewhere, and (4) the burden on a sitting president, US District Judge Amit Mehta pared back the subpoena in August 2021, limiting the query to documents submitted during the time Trump was in office. He also tossed the demand for documents relating to possible changes in presidential disclosure requirements, although he agreed that Trump’s lease of the Trump Hotel in DC from the federal government provides a sufficient legislative basis for the Committee to get a lot of what it originally wanted.

Both sides appealed, which is how this neverending saga wound up back at the DC Circuit this morning in front of Chief Judge Sri Srinivasan, Judge Judith Rogers, and Judge Ketanji Brown Jackson.

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Both sides got beat up pretty good, although Trump’s lawyer Cameron Norris of Consovoy McCarthy PLLC took the most bruising hits. His argument that the Mazars holding was primarily about protecting the executive from an “inherently suspicious” subpoena from a “rival branch” met with immediate skepticism, particularly from Judge Jackson.

The issue is one of separation of powers — “a constitutional principle, not a political one” —  rather than competition between the branches, she observed. Judge Jackson similarly flagged “another separation of powers problem: applying heightened scrutiny to prevent congress doing its job.”

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Later in the hearing, Judge Rogers echoed this, expressing “concern that the court not view itself as some sort of superintendent of decisions about what is relevant inquiry for legislation.”

Norris’s other arguments, including fearmongering about Congress coercing a sitting president to enact legislation by threatening to subpoena and publicize his personal records the moment he leaves office, met with varying pushback.

“You seem to be trying to carve out special status for [Trump] as a former president that I haven’t seen before in the law,” Judge Jackson pushed back, asking later “How is that consistent with the rule of law and full and complete transfer of power?”

But none of the judges appeared to notice when Norris referred to the subpoenas as resting on the thin reed of a “2016 loan” to former Trumpland fixer Michael Cohen.

The “loan” was to cover the hush money payoff to Stormy Daniels to keep quiet about their alleged affair, and indeed Cohen pled guilty to making an illegal campaign contribution in connection with it.

House Counsel Douglas Letter fared only slightly better, with the court trying to puzzle out what metric to employ if they accept the argument that Mazars doesn’t apply to a former president. Chief Judge Srinivasan suggested that the illogical result would be that an illegal congressional subpoena would magically become valid on January 20 “under a standard that immediately gets turned off because the president left office.”

In any event, Letter announced confidently that the government could “easily” meet the Mazars standard if the court decides to apply it, pointing to the presence of three billionaires in the 2020 presidential race to support of the contention that Congress needs to look at Trump’s finances to plan for the contingency of having another businessman president.

The panel grappled with the issue of whether they were required to edit the subpoena themselves, as Judge Mehta did, or to strike the subpoena in its entirety. Unsurprisingly, the House counsel favored the former approach, while Trump’s lawyer warned of moral hazard of allowing Congress to craft wildly overbroad subpoenas safe in the knowledge that courts would take responsibility for limiting scope.

In the end, the judges appeared to agree with the trial court that the GSA-hotel claims provided a stronger basis for the document demand than the generalized need to legislate in case another rich guy gets elected.

But regardless of the outcome, no one in the room believes the panel will be the last word on the case. Letter urged the court to rule as expeditiously as possible, but with the midterms fast approaching, the odds that the GOP can take back the House and nope out of the case before it returns yet again to Judge Mehta increase by the day.

TICK TOCK.

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Consovoy McCarthy PLLC, Donald Trump, Douglas Letter, Government