Tag: appeal

President Trump’s Accountants Ordered to Turn Over His Financial Records to Congress (DC Circuit)

On 11 October 2019, the US Court of Appeals for DC Circuit ruled 2-1, in the case of Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019), that President Trump’s accounting firm, Mazars USA, LLP, must turn over his financial records to the House of Representatives in accordance with a subpoena. The case runs in parallel to Trump v Vance Jr19‐3204 (2019) concerning a similar subpoena by a New York State prosecutor, discussed here.

In April 2019, the House Committee on Oversight and Reform subpoenaed President Trump’s financial records relating to years 2011 – 2018 from his accounting firm, Mazars USA, LLP. The subpoena was justified on the grounds that the Committee was investigating whether President Trump had committed any wrongdoing and also considering whether Congress should amend ethics in-government regulations. However, President Trump sued in a federal District Court seeking to block the subpoena arguing that it was part of a campaign of harassment conducted by the legislature against the executive and, therefore, served no legitimate legislative purpose. The District Court upheld the subpoena and President Trump appealed (p2).

The US Court of Appeals for DC Circuit first summarised the case law on the issue of enforceability of Congressional subpoenas, starting with the first case considered by the US Supreme Court, Kilbourn v. Thompson, 103 U.S. 168 (1881), where the Court invalidated a subpoena issued outside of a valid Congressional investigation (pp12-18).

Then, the US Court of Appeals for DC Circuit set the starting point – Congressional oversight powers were very broad. Nevertheless, they were also subject to important limitations. Firstly, “the power of Congress . . . to investigate” must be deemed “co-extensive with [its] power to legislate” (per Quinn v. United States, 349 U.S. 155 (1955) at 160). Consequently, “Congress may in exercising its investigative power neither usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights.” Secondly, “Congress may investigate only those topics on which it could legislate” (per Quinn v. United States, 349 U.S. 155 (1955) at 161). Thirdly, “Congressional committees may subpoena only information ‘calculated to’ ‘materially aid’ their investigations” (per McGrain v. Daugherty, 273 U.S. 135 (1927) at 177) (p19).

At that point, the US Court of Appeals for DC Circuit emphasised that the case concerned a subpoena issued to President Trump’s accountant, not to the office of President of the United States directly, and, therefore, the case did not have involve the question of subpoenaing a sitting President. Consequently, the main question was “whether the Oversight Committee is pursuing a legislative, as opposed to a law-enforcement, objective.” (pp20-21).

In this respect, the US Court of Appeals for DC Circuit pointed out that “the fact that an investigation might expose criminal conduct does not transform a legislative inquiry into a law-enforcement endeavor” (per Sinclair v. United States, 279 U.S. 263 (1929) at 295). Furthermore, addressing President Trump’s claim that Congress was conducting a campaign of harassment against him, the Court explained that “in determining the legitimacy of a congressional act” Courts were not allowed to “look to the motives alleged to have prompted it” (per Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) at 508) (p22).

In order to determine whether the subpoena was issued pursuant to a legitimate legislative purpose, the US Court of Appeals for DC Circuit considered Chairman Cummings’s memorandum from 12 April 2019 where he set out the reasons behind the subpoena. The memorandum identified four questions that the subpoena would help answer:

  • “whether the President may have engaged in illegal conduct before and during his tenure in office”
  • “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions”
  • “whether [the President] is complying with the Emoluments Clauses of the Constitution”
  • “whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities”

Furthermore, the subpoena was issued because “[t]he Committee’s interest in these matters informs [the Committee’s] review of multiple laws and legislative proposals under [its] jurisdiction.” In fact, at the time of the subpoena, the House of Representatives was working on a number of Bills that could benefit from the information supplied by President Trump’s accountants:

  • Bill H.R. 1 would require Presidents to include in their financial disclosures the liabilities and assets of any “corporation, company, firm, partnership, or other business enterprise in which” they or their immediate family members have “a significant financial interest
  • Bill H.R. 706 would require sitting Presidents and presidential candidates to “submit to the Federal Election Commission a copy of the individual’s income tax returns” for the preceding nine or ten years
  • Bill H.R. 745 “would amend the Ethics in Government Act to make the Director of the Office of Government Ethics removable only for cause” (pp25-27).

The US Court of Appeals for DC Circuit then held that the issues which were the subject matter of the legislation Congress was working on, were in fact subject to Congressional regulation. The Court, for instance, pointed to the the United States Code which contained a whole range of rules regulating Presidents’ finances and records. It also rejected President Trump’s claim that such regulation would unconstitutionally add further requirements for candidates seeking the office of the President of the United States, contrary to the judgments of the US Supreme Court in Powell v. McCormack, 395 U.S. 486 (1969), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). Consequently, the Court found a valid legislative purpose related to matters which fell under the Congressional purview (pp36-45).

At the same time, the US Court of Appeals for DC Circuit rejected President Trump’s claim that the supposed legislative purpose was merely pretextual and the Committee was in fact engaged in a law-enforcement investigation. The Court held that Congress could investigate whether any criminal activity had taken place to inform itself what type of legislation it should pass to address such an activity (pp27-31).

Finally, the US Court of Appeals for DC Circuit found that the information sought by the subpoena in question was material to its legislative purpose. Even with information concerning financial records going back to 2011 (i.e. long before Mr Trump became the President of the United States), the Court held that the Committee had a legitimate interest in those records because, in theory, it could use them when deciding whether the Ethics in Government Act should require financial disclosure going back more than one year, as it was currently required (pp50-54).

Accordingly, the subpoena was upheld by the majority of the bench. However, Judge Roa dissented arguing that “when Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power“. She argued that the subpoena could not be upheld because the Committee was investigating a sitting President (alongside exercising a legislative function), which could only be done through the impeachment process (pp1-3). Judge Roa pointed to the early practice as the best source of information as to what was permitted under the Constitution. “Founding Era practice confirms the Constitution’s original meaning—investigations of unlawful actions by an impeachable official cannot proceed through the legislative power” (p20). She agreed that “the cases cited by the majority demonstrate that during an investigation of private activity, the incidental revelation of criminal activity is tolerated when Congress has a legitimate legislative purpose,” however, the subpoena cited the investigation into a potential wrongdoing by President Trump as one of the main reasons behind it (p46). Consequently, she would have invalidated the subpoena as issued outside a valid legislative purpose.

The case of Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019) was decided on partisan lines with Judges Tatel (appointed by President Clinton) and Millett (appointed by President Obama) voting against President Trump and Judge Roa (appointed by President Trump himself) voting in his favour. However, even beyond that, it is clearly visible from the majority and dissenting opinions that while the former put emphasis on the accountability of the executive branch as the overarching objective, the latter focused on the separation of powers as understood through the lenses of originalism.

The case of Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019), like the case of Trump v Vance Jr19‐3204 (2019) decided by the US Court of Appeals for 2nd Circuit (discussed here), is part of a long dispute over President Trump’s financial records. With President Trump consistently refusing to release his tax returns, his political opponents have been attempting to obtain them by various legal routes, including subpoenas from the House of Representatives and a New York State Grand Jury. Both subpoenas have now been upheld by the US Courts of Appeals. However, the judgment in Trump v. Mazars USA, LLPNo. 19-5142 (D.C. Cir. 2019) will be appealed by requesting another hearing before an en benc panel of the US Court of Appeals for DC Circuit. Both cases could also be eventually appealed to the US Supreme Court.

SCOTUS to Hear Citizenship Question Case Bypassing Court of Appeals

On 15 February 2019, the US Supreme Court agreed to hear the census case on whether the Trump Administration could add the citizenship question to the 2020 census. The Court’s decision comes after, on 15 January 2019, the District Court for the Southern District of New York ruled in State of New York v US Department of Commerce, 18-CV-5025 (JMF) that Commerce Secretary’s decision to add the citizenship question violated the Administrative Procedure Act governing the creation of new regulations by administrative agencies. Following the ruling, the Justice Department asked the US Supreme Court to bypass the ordinary appellate stage at the US Court of Appeals and take the case in light of the approaching June deadline for printing census forms. The Court will hear the case in April 2019 and the ruling is expected to be delivered in June 2019, before the Justices adjourn for the summer (CNN).

Adding the citizenship question to the upcoming 2020 census became very controversial after some groups, such as the ACLU, had said that it would deter many illegal immigrants from participating in the census. This in turn would lower the official population numbers for States with a large portion of illegal immigrants, mainly California. This could have a considerable impact on the apportionment of federal funds and seats in the House of Representatives which directly depends on population numbers (US Constitution, Article 1, Clause 3). ACLU claims that adding the citizenship question would stop about 6.5 million people from entering their details in the census which could lead to the State of California loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill).

The Trump Administration argues that the citizenship question is necessary in order to comply with the Voting Rights Act and that this question has been asked during all but one census from 1820 to 2000. But in January 2019, a District Judge (an Obama appointee) disagreed, holding that the rationale was ‘pretextual’ and the decision was made in violation of the Administrative Procedures Act because it had failed to ‘consider all important aspects of a problem’ as required by the Act, implying also that the true intentions behind the citizenship question was to deter participation (Bloomberg).

Ordinarily, the decision of the District Court for the Southern District of New York would have to be appealed to the US Court of Appeals for the 2nd Circuit. However, as with many other unfavorable judicial rulings, the Trump Administration petitioned the Supreme Court to hear the appeal bypassing the Court of Appeals. For the first time, the Court agreed. The Court’s decision is clearly motivated by the urgency of the matter given that census questionnaires must be ready in the summer of 2019. With an ordinary appellate procedure, it would not have been possible to meet this deadline. Given how rare it is for the Supreme Court to accept cases bypassing the Courts of Appeals, it is understandable that the Trump Administration is holding this decision as a small victory.

Assisted Suicide Remains Unlawful (UKSC)

On 27 November 2018, the UK Supreme Court refused, in the case of R (on the application of Conway) Secretary of State for Justice [2018] UKSC B1, to consider an appeal from the High Court (Divisional Court) where the Court had upheld the ban on assisted suicide as compatible with Article 8 of the European Convention on Human Rights. Assisted suicide remains illegal in the United Kingdom under the Suicide Act 1961, s2(1), despite numerous attempts to overturn the ban as in breach of the European Convention on Human Rights. In its short opinion, the Supreme Court relied on previous precedents from the European Court of Human Rights leaving the question of the so called ‘right to die’ for states to decide. As the decision was merely on the application for permission to appeal, the Claimant had to demonstrate only a ‘prospect of success’ upon a full hearing that would justify giving the permission. Nevertheless, the Court held “not without some reluctance […] that in this case those prospects are not sufficient to justify giving permission to appeal” (at para. 8).

Since the enactment of the Human Rights Act 1998, rendering the European Convention on Human Rights directly applicable in the United Kingdom, there have been several challenges to the Suicide Act 1961 as incompatible with the Convention. Most notably, in the case of Pretty v United Kingdom (2002) 35 EHRR 1, following a dismissal by the UK House of Lords, the European Court of Human Rights also ruled that Article 2 of the Convention could not be interpreted as containing any right to die. It was further held that although the ban on assisted suicide interfered with the right to private life under Article 8(1) of the Convention, it could be justified ‘for the protection of the rights of others’ under Article 8(2). 13 years later, a similar challenge was mounted in the case of Nicklinson v United Kingdom (2015) 61 EHRR SE7 but the European Court of Human Rights maintained its position from 2002 relying on a wide margin of appreciation states enjoyed on the question of assisted suicide. Interestingly, before the case reached the European Court of Human Rights, the UK Supreme Court (having succeeded the Appellate Committee of the House of Lords), had followed Pretty only 7-2, with Lady Hale and Lord Kerr dissenting. In her Dissenting Opinion, Lady Hale “reached the firm conclusion that [the] law [was] not compatible with the Convention rights […and…] little [was] to be gained, and much to be lost, by refraining from making a declaration of incompatibility.” (R (Nicklinson) v Ministry of Justice [2014] UKSC 38 at para. 300).

Paradoxically, Lady Hale and Lord Kerr, who were both willing to hold the ban on assisted suicide incompatible with the European Convention on Human Rights in 2014, constituted the majority of the Supreme Court panel (along with Lord Reed) refusing the permission to appeal in Conway. In fact, they were in the position to accept the case on behalf of the Court, even in the face of opposition of Lord Reed.

President Trump Unable to Flip Appeal Courts Circuits

President Trump has made clear on several occasions that judicial nominations are one of his top priorities. In terms of Appeal Courts, as of 15 September 2018, he has successfully appointed 26 Circuit Judges, with further 10 nominations pending before the Senate and another 3 positions awaiting his nomination (13 vacancies in total). Many commentators have been pointing out that President Trump might not only change the constitution of the US Supreme Court by appointing Judge Gorsuch (and most likely Judge Kavanaugh) to its bench, but also flip majorities of at least some Appeal Circuits. However, upon a closer examination, this seems rather unlikely, at least in President Trump’s first term in office.

The US Courts of Appeals are grouped in 11 Circuits in addition to the so called special DC Circuit. As of 15 September 2018, the 1st Circuit is the only one which has not had any vacancies since the last general election and as such it has a stable 4-2 Democratic majority. The 2nd Circuit has 3 vacancies but even if filled by President Trump, it will retain a Democratic majority of 7-6. The 3rd Circuit has 2 vacancies and it has already seen 1 judge appointed to its bench by President Trump in addition to 4 judges appointed by previous Republican Presidents so assuming President Trump fills those 2 empty seats, the Circuit will be evenly split 7-7 between the Republican and Democratic appointees. The 4th Circuit has also had 2 judges appointed to its bench by President Trump on top of 4 judges appointed by previous Republican Presidents but it retains a stable Democratic majority of 8-6. The 5th Circuit currently has 1 vacancy, 5 Trump appointees and 6 other Republican-appointed judges making its overwhelmingly Republican 12-5. The 6th Circuit is also overwhelmingly Republican with 4 Trump appointees on top of 7 other Republican-appointed judges adding up to a strong 11-5 Republican majority. The situation is similar in the 7th Circuit which has 4 Trump appointees in addition to other 5 judges appointed by previous Republican Presidents adding up to a stable 9-2 Republican majority. This is again seen in the 8th Circuit where President Trump has appointed 3 judges on top of 7 other Republican-appointed judges adding up to an overwhelming Republican majority of 10-1. The most liberal of all the Circuits, the famous 9th Circuit currently has 7 vacancies, 1 Trump appointee and another 5 Republican-appointed judges but even assuming all those vacancies are filled by President Trump, the Circuit will nevertheless retain a stable Democratic majority of 16-13. A stable Democratic majority of 7-5 will also hold in the 10th Circuit where President Trump has appointed 2 judges on top of another 3 appointed by previous Republican Presidents. The 11th Circuit is another Circuit which is evenly split 6-6 between the Democratic and Republican appointees after President Trump has appointed 3 judges in addition to another 3 Republican-appointed judges already on the bench. Finally, the DC Circuit consisting of 1 Trump appointee and 3 other Republican-appointed judges also retains a stable Democratic majority of 7-4.

Given the structure of vacancies inherited by President Trump, it is unlikely that his appointments will be able to flip any Appeal Circuit. As of 15 September 2018, despite any appointments made so far, and any other likely to be made in President Trump’s first term, Democratic-appointed judges hold majorities in 6 Circuits (1st, 2nd, 4th, 9th, 10th and the DC Circuit) and Republican-appointed judges hold majorities in 4 Circuits (5th, 6th, 7th and 8th). The only difference made by President Trump’s appointments to the Appeal Courts could be observed in the 3rd and 11th Circuits which moved from stable Democratic majorities to being evenly split. In any event, with the appointment of Judge Gorsuch and the likely appointment of Judge Kavanaugh to the US Supreme Court, it is not the Appeal Courts where President Trump intends to make his judicial legacy most visible.