It appears likely New York will have to wait to produce any of President Trump’s tax returns Congress may request, until certain legal questions surrounding a dispute over such a hypothetical request are settled.
At a teleconference hearing on Wednesday, U.S. District Judge Carl Nichols said he was “leaning” towards adopting a proposal that New York officials put forward for dealing with concerns he raised about the state’s new tax law allowing it to hand over Trump’s state returns to Congress.
Specifically, the judge was worried that due to the nature of the law, New York would be able to produce Trump’s tax returns as soon as the House requested them, giving the President no opportunity to legally challenge the request.
The House has not requested the records, but recent comments from House Ways and Means Committee Chairman Richard Neal (D-MA) suggested Democrats were looking into the idea. That prompted a lawsuit from Trump’s personal attorneys last week seeking to block lawmakers from doing so.
Nichols, though sympathetic to Trump’s concerns, seemed to acknowledge at a hearing on Monday that the Constitution’s Speech and Debate Clause protected lawmakers from being proactively blocked from making the request. And he said the legality of such a request would not be ripe for him to adjudicate until there was a formal request from Congress for him to consider.
Thus he had asked the parties to negotiate potential next steps that would preserve Trump’s abilities to sue if the records were requested. The parties on Tuesday offered individual proposals instead.
At the Monday hearing, the New York officials — who were also sued by Trump — raised that the D.C.-based judge might not even have the authority to decide what New York can and cannot do in response to a hypothetical request.
Under the New York proposal, there would be an expedited briefing over the issue of the judge’s authority over the aspect of the case affecting the state officials. New York would agree to wait a week until after a decision is handed down on that issue to fulfill any request from Congress for the tax returns. That would give Trump’s personal attorneys time to file a legal challenge in New York, if it turned out the D.C. court was not the appropriate venue.
New York, represented by Andrew Amer of the state Attorney General’s office, also agreed at Wednesday’s hearing to notify the court if they receive a request while the procedural issue was being litigated. Trump’s personal attorney, William Consovoy, meanwhile suggested if he lost on the question of the judge’s authority over New York, he would try again to block the House from making the request.
The judge said he was going to take the time to further digest the proposal, but it was “where I am leaning.”