The House Ways and Means Committee promised a federal judge Monday that it would notify President Donald Trump if it requests the president’s New York state tax returns and if the court dismisses Trump’s emergency lawsuit to shield his returns from lawmakers.
The pledge came after U.S. District Judge Carl Nichols of Washington said he will rule by Tuesday morning whether to order the House committee to provide such a notice, even though it has not said whether it wants the records.
The notice came after Nichols last week dismissed New York state officials from Trump’s lawsuit, which seeks to bar the House from requesting and state officials from turning over Trump’s returns using a recently enacted New York state law.
New York tax officials had agreed while that case was pending not to turn over Trump’s records any sooner than seven days after Nichols ruled on whether the Trump lawsuit should be heard before him or before a federal judge in New York.
Nichols concluded the latter on Nov. 11, dismissing the New York defendants and starting the seven-day countdown. Trump attorney William Consovoy then asked Nichols to rule on the president’s emergency motion to intervene before any congressional request, arguing that without action, New York might respond to a sudden House request before the president’s opposition could be heard in court.
Nichols, a Trump appointee who joined the bench in July, has sympathized with the president’s argument at times, and at a hearing Monday asked attorneys for the House whether the committee would voluntarily agree to notify the president before making any request.
“Mr. Trump raised the concern that his claims could become ripe and then moot almost instantaneously and without notice to him or the Court, thereby depriving the Court of jurisdiction to decide his claims,” Nichols wrote when adopting New York state officials’ earlier promise to adhere to the seven-day notice window.
The House panel, chaired by Rep. Richard Neal, D-Mass., has said only that it is continuing to review whether to seek Trump’s state returns.
In a court filing hours after the hearing, House General Counsel Douglas Letter answered the judge, writing, “If this Court grants the Committee Defendants’ motion to dismiss, undersigned counsel agrees that should Chairman Neal make a request [before Congress’s current term ends Jan. 3, 2021 . . .], counsel will notify the Court and counsel for the Plaintiff that such a request has been made.”
New York’s Trust Act, signed by Democratic Gov. Andrew Cuomo and enacted July 7, allows New York tax officials to turn over Trump’s state tax returns to three House committees, provided the New York officials receive requests “in furtherance of a legitimate task of Congress.”
Letter has urged Nichols to dismiss the case, saying the committee’s decision whether to use the new state law is “absolutely immune” from court review under the Constitution’s grant of legislative powers to Congress. The House asserts that the Constitution’s speech-or-debate clause generally bars courts from looking to lawmakers’ alleged motives in ruling on the legality of their actions.
“The Supreme Court has repeatedly made clear that courts lack the power to do what Mr. Trump asks,” Letter wrote. Barring lawmakers from even requesting Trump’s state returns would appear to mark the first time any court overrode Congress’s freedom to conduct legislative work, even before lawmakers have taken any action.
“This is of particular concern where the injunction against a body of Congress would be issued at the behest of the President, raising glaring separation of powers concerns. This is precisely what the Framers of the Constitution wished to guard against,” Letter wrote.
New York lawmakers presented the new law as a means of empowering congressional oversight by unearthing details of the president’s past business dealings, his income and other personal financial information that he has refused to release via his federal tax returns.
Trump called the pursuit of his private financial information an attempt at political gain, and he accused New York lawmakers of violating his First Amendment rights by trying to discriminate and retaliate against him “for his speech and politics.”
(c) 2019, The Washington Post · Spencer S. Hsu