Judge Said He Expects Quick DC Circuit Ruling on McGahn in Pausing Trump Tax Returns Fight
U.S. District Judge Trevor McFadden said he feared a ruling could get ahead of the U.S. Court of Appeals for the D.C. Circuit as it handles similar issues in a subpoena fight over testimony for former White House counsel Donald McGahn, according to a transcript of Tuesday's teleconference.
January 16, 2020 at 03:11 PM
7 minute read
The original version of this story was published on National Law Journal
U.S. District Judge Trevor McFadden of the District of Columbia wasted no time Tuesday in sharing his thinking with the lawyers involved in a House lawsuit over President Donald Trump's federal tax returns.
"I think this can be pretty brief. I just wanted to update you all on my thinking," McFadden said, according to a transcript of the 24-minute call.
"Typically, I would have had an opinion or hoped to have an opinion out to you all, but in light of the developments in the McGahn case where I see the administration has advanced a lot of the same arguments that are advanced here and given that that case is on an expedited track with the circuit, my strong inclination is not to get out in front of my superiors, given the track that they're on."
McFadden then revealed that he planned to stay the House Ways & Means Committee's lawsuit against the Trump administration—not indefinitely, but until a panel on the U.S. Court of Appeals for the D.C. Circuit ruled on whether the House has standing to sue in a separate lawsuit over subpoenaed testimony from former White House counsel Don McGahn.
The judge said that if the D.C. Circuit rules in favor of the House and its ability to go to court, then he would "summarily deny the government's motion to dismiss in this case."
House attorney Megan Barbero, who has argued both the McGahn and tax return cases, immediately pushed back.
She noted the lawsuit over the tax returns focuses on a provision in the tax code that allows the committee to request the documents, an issue that "is not presented in the McGahn case."
Barbero also argued the case "has now been pending for quite some time and any further delays in resolving this case or, at a minimum, moving this case along expeditiously at the same time McGahn is moving along will really jeopardize the committee's ability to secure compliance with its demands for information."
McFadden heard arguments on a motion to dismiss the lawsuit in November, and indicated at the time that he did believe the House had standing to sue. But the D.C. Circuit judges overseeing the McGahn case did not seem so certain when they heard arguments in early January.
Whether the House has standing is an issue McFadden has wrestled with in his court before: Last year, he dismissed lawmakers' lawsuit challenging the diversion of military funds to build a wall on the southern border, finding they couldn't sue over the matter. That ruling has been appealed to the D.C. Circuit.
On Tuesday's call, Justice Department attorney James Burnham reiterated the administration's legal argument that the House can never go to court against the executive branch.
And he noted the D.C. Circuit's swift briefing in the McGahn case, which took place in one month, "which is extremely fast for any court, but particularly fast for the D.C. Circuit, and so, you know, the idea that this is going to just languish or linger for months and months I don't think is plausible."
Burnham also said the decision in the McGahn case "is going to have a dramatic effect on this case, and so at a minimum it will dramatically simplify this case and at a maximum it may dispose entirely of this case."
"I think the D.C. Circuit is properly in the driver's seat on making that determination, and they will," Burnham added.
Trump's personal attorney William Consovoy then chimed in, surprising the judge who was apparently unaware the lawyer was on the call. Consovoy said he shares "the government's position."
Barbero then made the final arguments for the House, calling the situation "really pure guesswork about what the D.C. Circuit will do and how long it will take them."
She said the arguments for an expedited briefing don't necessarily pan out, noting that the D.C. Circuit also put the Mazars case on a fast-track and still took several months to issue a decision.
"By contrast, if your honor moves quickly to decide the motion to dismiss and if we get to the next stage in this case in parallel with McGahn making its way through the court, we've set this case up so that the committee could actually vindicate its rights in a timely manner," Barbero said. "And staying this case pending unknown timing in the D.C. Circuit is simply not consistent with, as the Supreme Court has indicated, expeditiously moving along the subpoena cases of the House and the committees."
McFadden said that, despite Barbero's arguments, he was "still inclined to stay, at least for now."
And he reiterated that he did not plan to stay the case indefinitely.
"I don't feel like this has been dragging at least in legal, from a legal time frame. I will say—I mean, I am expecting that the panel is going to rule relatively expeditiously, you know?" McFadden said. "If this is—we're not hearing something from them in the coming weeks, I'd certainly consider a motion from the House to lift the stay, but if I'm right that—I think all of the signs, as Mr. Burnham said, do point to the circuit wanting to handle the McGahn case relatively quickly. It just—I don't think it makes sense for me to get out in front of them."
Barbero then asked whether the judge could order the parties to start briefing the underlying question of the case now, while the case is stayed.
McFadden replied by noting that Consovoy has previously suggested he wants discovery to be held in the case, and that he would "certainly need to consider that before we move straight to briefing on the merits."
And the judge urged for the House committee and the Trump administration to work together "to potentially narrow the scope of the disagreement here and possibly resolve it, you know especially—it seems like there are other very similar cases that are working their way through the system that may possibly moot much of this case."
Burnham also asked if McFadden might consider holding a status conference or other proceeding before the judge rules on the motions in the House lawsuit, after the McGahn decision is released. McFadden said he would consider it.
Both the House lawsuits involve seeking information related to the president—his tax returns, and testimony from his former White House counsel about potential acts of obstruction of justice as committed by Trump.
It's unclear when the D.C. Circuit will release a decision on the McGahn testimony. The court is set to next release opinions Friday. The Senate impeachment trial, which the House has argued it needs the McGahn testimony as evidence in, formally began Thursday but arguments are not expected to begin until Jan. 21.
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