William Consovoy William Consovoy of Consovoy McCarthy at a meeting of the Federalist Society. Washington, D.C. April 17, 2018. Photo: Diego M. Radzinschi/ALM

Lawyers for President Donald Trump are hoping to convince a Washington federal appeals panel that a U.S. House committee subpoena for financial records goes too far, and the opening lines of their newly filed court papers tee up a hypothetical clash between Congress and the U.S. Supreme Court—where the justices’ records, and not the president’s, are the target of a congressional demand.

The justices, of course, just like the president, file annual financial disclosure forms that are available to the public. But that’s not what House Democrats are going after—they hit the president’s longtime accounting firm, Mazars USA, with a subpoena for records created between 2011 and 2018. Mazars has remained mum in the dispute, letting the president’s legal team make its case.

The subpoena was upheld in Washington’s federal trial court, and now the fight, which opened Monday with the brief from Trump’s lawyers, will unfold in the U.S. Court of Appeals for the D.C. Circuit. That’s where Trump’s attorneys—including William Consovoy of the Washington boutique Consovoy McCarthy—presented a scenario in which the House has demanded access to financial records belonging to Supreme Court justices.

“[R]eplace ‘president’ with ‘justices’ and the ruling below would, without question, authorize a congressional subpoena for the justices’ accounting records—even for many years before they joined the court,” Consovoy wrote in the brief, also signed by former White House lawyer Stefan Passantino of Michael Best & Friedrich, who represents various Trump business entities.

That’s just what Consovoy did in his brief—inserting the word “justice” in places in the record where “president” had appeared. For instance, as written by Consovoy: Congress has “sweeping authority to investigate illegal conduct of a [justice] before and after taking office.”

Congress, of course, has that sweeping authority through its power to impeach justices as well as presidents. But whether Congress could scrutinize justices’ financial records in a non-impeachment setting is an open question. There’s no recent historical parallel where either the House or the Senate issued a subpoena for the financial records of a justice.

“To be sure, there are limits on Congress’s investigative authority. But those limits do not substantially constrain Congress. So long as Congress investigates on a subject matter on which ‘legislation could be had,’ Congress acts as contemplated by Article I of the Constitution,” U.S. District Judge Amit Mehta in Washington wrote, backing the lawfulness of the House subpoena to Mazars.

In 2011, Chief Justice John Roberts Jr. in his annual report addressed ethical constraints that might or might not pertain to Supreme Court justices. He stressed the unique status of the Supreme Court under the Constitution, while acknowledging that the justices voluntarily abide by financial disclosure rules imposed by Congress on lower federal court judges.

“Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income,” Roberts wrote. “The Court has never addressed whether Congress may impose those requirements on the Supreme Court. The Justices nevertheless comply with those provisions.”

Roberts’s statement that the court has never ruled on whether Congress can impose financial requirements on justices suggests at least the possibility that the high court could, if challenged in a case, say no.

Consovoy, a former clerk to Justice Clarence Thomas, and the U.S. House legal team, led by general counsel Douglas Letter, know the subpoena dispute will reach the U.S. Supreme Court, possibly by late July or sometime in August.

D.C. Circuit Judges Patricia Millett, Neomi Rao and David Tatel have scheduled argument for July 12. The case parallels one that will be heard in the U.S. Court of Appeals for the Second Circuit, where Trump’s lawyers are fighting a House subpoena that seeks Trump-related information from Deutsche Bank and Capital One.

 

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