Oral arguments in the appeals case where President Trump will be arguing to block a congressional subpoena for his financial records begin at 9:30 a.m. ET.
Trump took the unprecedented step of hiring personal attorneys to sue to block his longtime accounting firm – Mazars USA LLP – from complying with a subpoena from the House Oversight Committee for years of his financial records. A D.C. federal judge upheld the subpoena, and the President appealed the decision in a battle that is expected to reach the Supreme Court.
Conservative movement attorney William Consovoy will be representing Trump. House General Counsel Douglas Letter will be arguing for the Oversight Committee.
We will be live-blogging the hearing before D.C. Circuit Judges David Tatel, Patricia Millett and Neomi Rao once it commences.
Arguments are available to watch on the appeals court website.
11:47: And that’s it for oral arguments. The hearing began at 9:30, and was initially scheduled for one hour. It ran an extra one hour and 15 minutes as the panel of three judges grilled attorneys in the case.
Tierney Sneed was in the courtroom and will be emerging shortly with more on how the arguments went.
11:46: Consovoy moves to the Emoluments Clause issue, calling it a “great example of an answer in search of a rationale for this whole case.”
He then says that the court has heard two hours of argument on the question of whether the case is law enforcement or a legitimate use of Congressional power.
11:45: Consovoy says that the President can stand in for the recipient of the subpoena in the case, because the documents held by the third-party custodian are relevant to him.
11:44: And we’re back to Consovoy, on rebuttal.
11:43: Judge Tatel closes his questioning of Letter by asking about the expedited schedule for the case.
11:41: We have now passed the two-hour mark. Thirty minutes was initially budgeted for each side; both have gone over one hour.
11:40: Letter addresses Consovoy’s “law enforcement point,” saying that Congress frequently investigates potential criminal wrongdoing.
He brings up Congress’s 9/11 investigation, which concerned mass murder. He adds that “no one would have said” the probe was illegitimate, given that it examined criminal conduct.
11:36: Rao asks again if the president is “treated any differently” by a Congressional subpoena than a cabinet official.
Letter concedes that “the president is unique” in his official capacity.
Rao then presses Letter on what the difference should be.
Letter goes back to the nub of the subpoena, which is that Trump is allegedly “mixing” his personal business interests with those of his office.
Rao then returns to her earlier line of questioning, that the full House has not authorized an investigation of the President. She points out that the House has not created a specific committee to investigate Trump.
Letter replies that “the House gets to decide its own rules.”
“That’s not a subject for this court to get into,” he adds.
11:35: Judge Rao asks if there are any ways in which the committee “should treat the president differently from John Q. Public” with respect to a Congressional subpoena.
Letter replies that the Oversight Committee’s investigative powers are, if anything, broader over the executive branch.
“We do not deny that, in some universe, Congress is using its powers abusively to prevent the president from doing anything, from carrying out his job,” Letter says. “We’re nowhere near that.”
Rao interjects, asking if that’s the sole standard.
11:31: Letter adds that part of Congress’s investigation goes to whether Trump is “under the influence” of a foreign state, or company. He goes on to say the Supreme Court has held that Congress is allowed to pursue unsuccessful leads in the course of its investigations, giving them a sprawling nature.
Millett continues to grill Letter on the subpoena’s time scope.
11:28: Judge Millett asks what “legitimate interest” Congress has in procuring materials before Trump was inaugurated.
“How do you explain the financial disclosure interest over this whole time period?” she asked, specifying that she meant the “pre-presidential time period.” Judge Millett appears skeptical, asking “how on earth” the House could ask for the records.
Letter replies that Trump’s activities before becoming President affect his federal financial disclosures, as well as his business dealings with the federal government.
Millett asks if the House’s power extends to documents from Trump at age 18, or at birth.
“It probably would not be pertinent to go back that far,” Letter replies.
11:24: Letter adds that “Mr. Consovoy is asking you to rule on the constitutionality of legislation” that has not been passed, or even contemplated from the as-of-yet uncovered facts of Congress’s investigation.
“If Congress wanted to pass legislation saying what is an emolument…then Congress would want to find out what is an emolument,” Letter argues, adding that Congress would need to determine what emoluments are being received by the president.
Judge Rao then asks what “the specific facts” are regarding emoluments that Congress needs to know.
Letter replies that part of the investigation goes to examining Trump’s relationships to his hotels.
He then offered an interesting hypothetical: “the Saudis come in and say, ‘We want to rent the entire hotel for the year, and name a price, whatever price is good for us.’ Is that an emolument?”
“We need to know what money is coming in and how does that relate to Trump,” Letter concludes, and goes on to say that the House needs to determine what assets related to the D.C. hotel that Trump considers are his.
11:20: Letter says that Congress needs to know a litany of information, including “the terms on which Mazars was engaged” by Trump.
Letter then returns to the emoluments question, saying that Congress has the power “to give consent” to emoluments. Therefore, he argues, the House has the authority to investigate matters involving the alleged receipt of emoluments, either from foreign governments, or from government bodies domiciled in the U.S.
11:17: Judge Tatel asks Letter if he believes the subpoena can be sustained on Rep. Cummings’s stated reason – to investigate whether Trump was inflating his assets with respect to the GSA.
Letter says yes, and adds that the issue partly goes to the Emoluments Clauses.
11:15: Rao asks if the committee has “forfeited” the GSA and Emoluments Clauses issues, as Trump argued in an earlier brief.
“It is absolutely and completely factually wrong,” Letter replies, adding that he doesn’t understand why Consovoy made that argument.
11:11: The appeals court is now discussing whether another previous case is relevant to Trump’s effort to halt the Mazars subpoena.
Letter says “what Mr. Consovoy is asking you to do is clearly inappropriate.”
11:08: We’ve gotten into a discussion of Congress’s impeachment power and the effects that an impeachment inquiry has on the body’s investigative authority.
“We are not here relying on impeachment power,” Letter says.
11:05: Judge Tatel jumps in. “Let me see if we can’t get some control of this issue here.”
Tatel characterizes Consovoy’s argument as that, in a case involving the president, the court should apply a “more searching” standard than would be typical of a Congressional subpoena.
Letter says that “we have to understand the clear constitutional power of the House to investigate, from day one.”
Tatel asks Letter if he reads the House rules to allow a subpoena to the President.
Letter says yes.
11:03: Letter argues that Trump has “put himself in this position.”
Judge Rao then asks how that authorizes the committee’s subpoena.
“Is there any limitation on the ability of the House to delegate its power to a single committee?” she asks. “Could they delegate the full authority of the House to a single committee?”
11:00: Judge Rao presses Letter, asking whether the subpoena for records relating to the President is unprecedented, insofar as it appears to have occurred without a full House or Senate vote.
“It’s not a subpoena to the President,” Letter says, emphasizing that it went to Mazars. “I don’t think we’ve ever encountered before an argument that Congress cannot do an oversight investigation of the Executive Branch.”
Rao says: “You can’t provide any specific example” of the committee exercising “compulsory process against the President.”
10:58: Judge Rao then asks what evidence there is “from the House that they’ve authorized the committee to take this action?”
Letter replies that the House has given Rep. Cummings’s Oversight Committee broad investigative authority.
Rao then asks Letter to provide historical examples of where Congress has decided to investigate the president “without a full vote of the House or Senate.”
Letter then cites a Civi War-era committee that was convened to oversee the war, before Rao interrupts, saying that it never subpoenaed President Lincoln.
10:56: Judge Tatel asks why the House has to subpoena Mazars, the third-party accountant, and not the Government Services Administration, with regard to the Trump Organization’s lease of the Post Office building in Washington D.C.
“We need to know from Mazars – we hope we can get a better window into what is the actual situation,” Letter says, “as to what the financial situation actually is.”
10:55: Letter says that the House has shown a legitimate legislative purpose.
Judge Tatel asks him to address Consovoy’s point about constitutional concerns regarding the underlying legislation.
“Serious constitutional questions are to be avoided,” Letter says, adding that he doesn’t believe Consovoy’s concerns are “serious.”
10:52: Judge Rao brings up a Nixon-era case which held that the President has some right to privacy over his personal records.
“You’re right – if he writes a letter to his daughter saying, ‘I hope you do well in college,'” that’s not covered by the Presidential Records Act, Letter says.
But, he argues, communications involving his financial disclosures would be covered.
10:50: We’re on a discussion of whether it’s important that Congress has not subpoenaed Trump directly, but rather a third-party custodian of his records.
“Here, this would have very little impact at all on how the President carries out his functions,” Letter says. “You can’t ignore the fact that what is being asked for here do involve records of the President, even though they are primarily records from before he was the President.”
Judge Millett points out that since Trump gave the records to Mazars, he has “no privilege,” and that they are not protected by accountant-client privilege.
10:48: Letter says “you can’t ignore” that the case concerns the President, and then calls Consovoy’s argument that the subpoena could impede the president “not a very good one.”
Rao interjects, saying “On the other hand, the President could hand over his diary of 30 years, to a friend, and if someone subpoenaed that…I’m worried about ignoring the fact that it’s a third party.”
10:44: Judge Millett says that what she finds difficult is that the complainant is “Donald J. Trump.”
“Is he here as the President,” or as a private citizen, as Bill Clinton claimed to be during a similar case in the 1990s. “In what capacity is he here as a plaintiff?”
Letter replies that “the president is the president.”
“A significant amount of what Congress is looking in to is his financial disclosure form as President,” in addition to as a candidate, Letter says.
10:42: Judge Tatel goes on to ask why they should be so deferential to Congress, “when what we’ve got is a separation of powers issue.”
Letter replies that “this is not just some sort of dispute between the President and Congress,” going on to say that Congress is reviewing multiple “legislative possibilities,” some of which don’t directly concern the office of the president.
“What I’m saying is that there are all sorts of possibility of legislation that Congress may come up with that don’t involve separation of powers,” he adds.
10:40: Letter opens by saying that the district court judge got it right.
Judge Tatel interjects, asking him to address whether the lower court got it substantially wrong.
“I don’t understand why we would adopt that deferential standard,” he asks.
10:38: Consovoy: “I do not think I am breaking new ground today in saying that in disputes between the President and Congress,” the answer is political.
And that’s all for Consovoy – the judges grilled him for more than an hour. Both sides were allotted 30 minutes each.
Now we’re on to Douglas Letter for the House.
10:36: Judge Millett adds that the question is whether there is “any power to look at any thing” regarding the President.
“I think I’ve heard you say that when it comes to the President,” Millett continues, “Congress can get no information.”
Consovoy replies that “Many Congresses have been frustrated by court rulings fencing off the President.”
10:32: Consovoy then argues that Congress’s lawmaking and investigative authority does not apply to the executive office of the president – it’s a separate authority, in his view.
Judge Millett replies that “you keep talking like they picked up some individual off the street to target” but Congress is talking about the office of the President.
10:30: Judge Rao gets back in, asking Consovoy why he believes there is no connection between the subpoena and Congress’s stated legislative purpose.
Consovoy replies that “if Congress’s decision whether to strengthen the laws turns on whether a particular individual violates them,” then that goes beyond Congressional authority.
10:27: Judge Tatel then asks Consovoy what the principle is that a court should use to determine that Congress’s justification of a subpoena “is just a ruse?”
Consovoy then says the court should analyze Congress’s process in issuing the subpoena, as well as the statements of members of Congress.
“I don’t think the court should disregard what the speaker is saying publicly,” he adds.
10:26: Consovoy claims that a memo from the House Oversight Committee outlining the subpoena does not assert contemplated legislation. Judges Tatel and Millett then read from the memo, contradicting him.
10:24: Judge Tatel points out that Consovoy “didn’t quote the full sentence” in a relevant case.
That case – Tatel adds – “makes clear exactly what Judge Rao said earlier – which is that if Congress is pursuing a legitimate legislative objective, it doesn’t become illegitimate just because some of the information would be revealed to law enforcement.”
10:22: We’re back on whether Congress’s appropriations power with regard to the Executive branch grants it the ability to enact laws mandating financial disclosures.
“Imagine, in the future, you have the most corrupt president in humankind, openly flaunting it, what law could Congress pass?” Judge Millett asks.
Consovoy: “I think it’s very hard to think of one.”
10:20: Judge Millett to Consovoy: “So you dispute that even if the House had written the resolution even as you want,” then Congress “at all does not have this power to oversee the president in any capacity.”
She adds: “If your argument is the very predicate of assuming that they had a laundry list of perfectly Constitutional statutes they were ready to enact, they structurally do not have any oversight power over this isolated spot called” the executive office of the President.
Consovoy replies that he is “not trying to stand here and argue today that Congress has no power” to pass any laws regarding the presidency.
10:16: Consovoy to Judge Millett: “I don’t believe Congress gets that kind of benefit of the doubt in a separation of powers case,” before citing a dissent written by Justice Antonin Scalia.
“That doesn’t make it a majority opinion,” Millett replies.
10:15: Consovoy restates his main thesis, that “we believe the purpose of this subpoena is unconstitutional.”
10:13: Judge Tatel asks Consovoy about whether legislation that has yet to be enacted could be deemed unconstitutional.
“We don’t know what Congress will propose if it gets this information and holds hearings,” he says.
10:11: Judge Millett asks Consovoy if he believes that a Congressional committee couldn’t even send a polite letter, under his interpretation of the excessiveness of the House of Representative rules.
Consovoy says yes.
“Which means they can’t even look,” Judge Millett replies. “Under your theory, there is no oversight authority at all.”
Consovoy replies “the answer is yes, but we haven’t had the need to go nearly that far in this case.”
10:08: We’re now in a discussion of whether, by providing President Trump with his salary, Congress retains the power to issue financial disclosure requirements. Judge Millett proposed a hypothetical by which Congress would provide a higher salary to presidents who disclose more information.
Consovoy replies that it would be “deeply controversial and constitutionally problematic.”
Judge Millett then asks if he believes that when it comes to presidential conflicts of interest, “there is nothing Congress can do.”
Consovoy: “With respect to the president, the answer is yes.” He then says that the framers of the Constitution did not put “financial disclosures in the text.”
10:05: Judge Tatel returns, saying “here you have a bill passed by the House that simply adds to the disclosure requirements.”
“That’s not unconstitutional, is it?” he asks.
Consovoy replies that it is.
10:04: Under questioning from both Rao and Millett, Consovoy replies that the court should conduct a “primary purpose test” to assert that Congress is, in fact, acting as a law enforcer.
10:02: Judge Rao asks Consovoy how he distinguishes his argument that Congress’s “real object” in issuing the subpoena is law enforcement from a “search for motive,” which “both parties agree is impermissible.”
10:00: Judge Tatel is now asking whether H.R. 1 – the House’s flagship anti-corruption bill that aims in part at tightening financial disclosure requirements in the Executive Branch – constitutes a legitimate legislative purpose.
“These bills have passed the House, and they are directly related to the subject of the subpoena. Should we just ignore those?” he asks.
Consovoy replies: “We think that underlying legislation would be unconstitutional.”
9:58: Judge Millett presses Consovoy, saying that under his “naive” theory, the court would have to accept that various pending pieces of legislation in the House are “a ruse.”
“Can we do that?” she asks.
9:56: Under further questioning from Judge Tatel, Consovoy has moved on to his argument that the real “object” of the House Oversight Committee’s subpoena is “law enforcement.” Consovoy cites Pelosi reportedly saying that she wants to see Trump “in prison.”
Tatel moves the discussion to Rep. Elijah Cummings (D-MD)’s public statements that he is considering legislation around financial disclosures for the President.
“The court does not have to be naive,” Consovoy replies. “The court does not have to accept that here are some legislative-type arguments, and deny what is staring the court in the face.”
9:53: Judge Tatel adds that Consovoy suggests that not only do conflict of interest laws not apply to the president, but asks if he believes that financial disclosure laws should not apply as well.
Consovoy replies: “I think so too.”
9:51: Rao speaks up again – “many of the arguments raised here relate to the unique Constitutional status” of the president. She then asks why the Justice Department isn’t attending.
Consovoy replies that “this happens in these fights all the time,” that it’s private litigation.
Rao goes on to say, “if these arguments are about the office of the Presidency,” why isn’t the government attending. Consovoy replies he can only speak for his own representation.
9:49: Judge Millett asks Consovoy how Mazars handing over documents “impedes the execution of” the president’s duties.
9:47: Rao, a recent Trump appointee, asks Consovoy to explain “what specifically is the Constitutional interest in the case.”
Consovoy goes back to his argument that the House lacks a “legitimate legislative purpose” in issuing the subpoena.
9:43: Consovoy admits that if the House of Representatives rules specifically cited a power to issue a subpoena to the president, he would be making a different argument.
9:41: Tatel to Consovoy: “You don’t have standing to challenge House rules.” Tatel adds that Trump can challenge the subpoena. The question then goes to whether the House subpoena to Mazars is authorized by the House of Representatives rules.
9:40: Consovoy replies that the issue goes to House rules.
9:39: Judge Tatel questions Consovoy on the cases he’s using to back up his argument, saying the Trump case “seems really different.” Tatel goes on to say that it’s a case relevant to “laws on financial disclosure…which presidents for years have been doing.”
9:37: Consovoy opens saying that the statutory language does not give the House the jurisdiction to issue the subpoena to Mazars, and that its exceeded its authority in doing so.
Judge Millett asks if Consovoy believes if he disputes that the House itself has the power to issue a subpoena generally.