Rule of Law

OP-ED: Trump Judges Are Playing Keep-Away With His Tax Returns and Other Financial Records

Rather than moving quickly to decide a case of national import like this one, Judge McFadden is delaying, possibly to the point that there will not be time for full resolution of the case.

On Tuesday, Judge Trevor McFadden of the U.S. District Court for the District of Columbia issued a surprising order further delaying any potential release of President Donald Trump’s tax returns to the House Ways and Means Committee. McFadden, who was appointed by Trump to the federal bench, has had that committee’s subpoena of Trump’s tax returns before his court since July and has yet to issue a ruling. In Tuesday’s order, the judge continued to delay, putting the proceedings on hold until the U.S. Court of Appeals for the District of Columbia Circuit decides a completely separate matter. The tax returns case—which has nothing to do with the ongoing impeachment inquiry of Trump—is now on hold until the circuit court rules on the House’s subpoena of testimony for former White House counsel Don McGahn in the impeachment inquiry. Because these cases have few similarities, it is difficult to understand McFadden’s latest order as anything other than an effort to delay the release of Trump’s tax returns for as long as possible. Coupled with D.C. Circuit Judge Neomi Rao’s effort to block a subpoena of Trump’s financial records in the Mazars USA case, this is another instance of one of Trump’s appointees to the federal bench taking a position that could undermine Congress’ ability to access critical information about this president’s finances.

The Ways and Means Committee first brought the tax returns case last July, seeking to enforce a subpoena with which the Treasury Department had refused to comply. The committee relied on a provision of federal law, 21 U.S.C. § 6103(f)(1), that says that “[u]pon written request from the chairman of the Committee on Ways and Means of the House of Representatives. . . the Secretary shall furnish such committee with any return or return information specified in such request.” As the committee argued, this language imposes a “mandatory” and “nondiscretionary duty” for Treasury Secretary Steven Mnuchin to furnish tax records to the committee when requested. And the committee noted that it was unaware of a single other instance when a treasury secretary has refused to transmit a tax return to the Ways and Means Committee upon request.

Moreover, though the statutory language does not require the committee to offer a reason for a request, the committee argued that it plainly had a legitimate legislative purpose for requesting Trump’s tax returns. As Chairman Richard Neal has explained, the committee is considering legislation related to the nation’s tax laws, including “the extent to which the IRS can audit and enforce federal tax laws against a current or future president.” In short, whether under section 6103 or its Article I oversight powers, the Ways and Means Committee argued that it had a legal right to obtain Trump’s tax returns. The request became even more urgent this past October, when a federal whistleblower reported that a political appointee may have interfered in an audit of the president or vice president.

But the committee still doesn’t have the returns. On Aug. 20, the committee filed a motion for summary judgment—in effect, a motion for an order deciding the legal question in the case and requiring the Treasury Department to turn over the tax returns. On the same day, the committee filed a motion to expedite consideration of the case. As the committee explained, “[t]ime is of the essence” because the House is “not a continuing body” and the current Congress only exists until Jan. 3, 2021, at which point its subpoenas will expire. The committee therefore argued that it “must obtain a prompt resolution of the issues in this case if it is to have enough time to investigate the tax issues implicated by President Trump’s tax returns and return information and propose and pass any legislation that it may deem appropriate in response.”

The district court rejected that motion, holding that the committee had failed to meet its burden to justify expedition, and suggesting that the court should not rush to decide the difficult legal questions presented in the case. The case was eventually argued on Nov. 6. It has now been more than two months since oral argument, more than six months since the case was first filed, and more than eight months since the subpoena was issued—yet McFadden still hasn’t issued a ruling.

Then, on Tuesday, McFadden delayed a decision even further. McFadden issued an order stating that the case is stayed “pending a decision in Committee on the Judiciary, U.S. House of Representatives v. McGahn.” But it is hard to understand why he would be awaiting a decision in the McGahn case. The two cases raise different issues: The tax return case raises the issue of Congress’ powers under a federal statute and its Article I investigatory authority, while the McGahn case raises a separate issue of the immunity of the president’s close advisers to congressional subpoenas during an impeachment inquiry.

To be sure, one could argue that both cases raise broader jurisdictional questions about Congress’ power to bring suits like these at all, but even that issue is not identical: the tax return case involves Congress’ power to enforce a right to documents that it has under a federal statute and to engage in oversight in aid of its legislative function, while the McGahn case involves Congress’ power to enforce a subpoena of a witness as part of an impeachment investigation. There is no judicial principle that requires McFadden to refuse to decide the case before him until the court of appeals has weighed in on a tangentially related issue in a separate case. And it is particularly unclear why he would wait here, given that multiple other district court judges in McFadden’s district have already ruled that Congress can bring suits like the tax return one.

McFadden’s order is also troubling because of what it means for Congress’ ability to eventually obtain Trump’s tax returns. The current Congress is already more than halfway over. Thus, even if the committee is correct on the law and is entitled to the tax returns, there is a real risk that Trump will manage to run out the clock and let any subpoena for his tax returns expire before it can be enforced. That’s especially true here, where—as an attorney for the House noted in a hearing before the judge issued his order—there will need to be further briefing on the merits of the case even if the judge rules in favor of the House on the preliminary briefing.

The possibility that justice delayed could be justice denied is why judges should be expediting cases like this and ensuring that they are decided quickly to avoid any purposeful attempts at delay by the parties. To that point, it is noteworthy that several other cases involving congressional requests for documents and testimony from the Trump administration have moved far quicker—for example, the case involving financial documents from Trump’s accounting firm Mazars, which is already at the Supreme Court and in which Rao dissented, and the case involving the portions of the Mueller report redacted as grand jury materials, which was already argued before the D.C. Circuit.

Unfortunately, rather than moving quickly to decide a case of national import like this one, McFadden is delaying, possibly to the point that there will not be time for full resolution of the case. Let us hope the D.C. Circuit, which heard arguments in the McGahn case earlier this month, issues its decision quickly and prevents the district court from using the pendency of that case as an excuse to refuse to decide whether Trump’s tax returns must be released.

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