The U.S. Court of Appeals for the District of Columbia Circuit, voting 8–3, denied a petition from Trump’s lawyers for a rehearing by the full court. Seven judges appointed by Democratic presidents and Judge Thomas Griffith, who was appointed by Republican President George W. Bush, voted against Trump, while all three of those voting for the rehearing were Republican appointees.
Judge Gregory Katsas, a Trump appointee, said in a dissent that the ruling was nearly unprecedented.
“If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary. For the second time in American history, an Article III court has undertaken to enforce a congressional subpoena for the records of a sitting President,” he wrote. (pdf)
“The first time that was attempted, we took the case en banc, refused to enforce the subpoena, and stressed that the availability of impeachment foreclosed any conclusion that the records at issue were ‘demonstrably critical to the responsible fulfillment’ of Congress’s legislative prerogatives, even when Congress was investigating significant allegations of presidential misconduct.”
Katsas argued that the case posed a “threat to presidential autonomy and independence.”
Judge Neomi Rao, another Trump appointee, who replaced Brett Kavanaugh after he was confirmed to the Supreme Court, said in a dissent that the House Committee on Oversight and Reform “exceeded its constitutional authority when it issued a legislative subpoena investigating whether the President broke the law.”
“Investigations of impeachable offenses simply are not, and never have been, within the legislative power because impeachment is a separate judicial power vested in Congress. The panel’s analysis of these issues misapprehends the gravamen of the Committee’s subpoena and glosses over the difficult questions it raises for the separation of powers,” she wrote.
Judge Karen Henderson, an appointee of President George H.W. Bush, joined in both dissents.
The judges who denied the rehearing didn’t issue a statement. The order read: “Appellants’ petition for rehearing en banc and the response thereto were circulated to the full court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing, it is ORDERED that the petition be denied.”
The case involves Trump’s financial records and his accounting firm, Mazars USA. The Nov. 13 ruling came about a month after a panel on the U.S. Court of Appeals for the District of Columbia Circuit ruled 2–1 that the documents had to be turned over to Congress.
The president is expected to appeal to the Supreme Court.
In a separate case, Manhattan District Attorney Cy Vance issued a subpoena for eight years of Trump’s tax returns. A judge ruled in October that Trump’s accounting firm had to turn over the records, a ruling temporarily blocked by a federal appeals court but later upheld by the court. Jay Sekulow, counsel to the president, said the case would be taken to the Supreme Court.