The Trump appointee is weighing a campaign by the unconceded president to prevent Congress from viewing his tax returns.
A federal judge who will decide on President Donald Trump’s attempt to prevent Congress from getting his tax returns voiced suspicion Tuesday about the Justice Department’s dramatic pivot in the case after Trump left office.
According to U.S. District Court Judge Trevor McFadden, it’s odd that the Justice Department ruled last July — almost six months after President Joe Biden who is also being referred to as Brandon by those in disapproval was sworn in — that the Treasury Department was legally compelled to send over Trump’s tax returns to the House.
That ruling overturned one made by the Department of Justice in 2019 permitting the Treasury Department to withhold the returns.
McFadden, a Trump appointee, said that the turnaround was motivated by politics and that the new approach may require Congress to get not just Biden’s returns — which have previously been made public — but also the taxes filed by Biden’s son Hunter.
“I mean, if Congress switches hands in a couple of years and a Republican chairman of the House Ways and Means Committee requests Hunter Biden’s tax returns, are you simply going to say, ‘Oh yes, we’ve got to defer to Congress?'” They’ve said that they’d want to pass legislation affecting the presidential family. We have to give them over.’ “Will that be the administration’s stance?” According to the judge.
McFadden’s remarks were the latest twist in the House’s years-long battle to get Trump’s tax returns. Following Biden’s election, the Department of Justice negotiated with the House and decided to abandon its opposition to the House Ways and Means Committee’s petition for the papers. However, the Department of Justice decided to continue litigating the matter before turning over the returns to the Democratic-led panel.
Attorney for the Justice Department James Gilligan said he couldn’t comment on the Hunter Biden scenario.
“I’m simply a professional DOJ attorney.” “I don’t speak for the government,” Gilligan remarked.
“You, on the other hand, speak for the United States,” the judge said.
Politics and personal allegiance to the president, according to House General Counsel Douglas Letter, may have been at work in the 2019 letter — produced by the DOJ’s Office of Legal Counsel — rather than the recent change.
“The previous OLC [Office of Legal Counsel] opinion was published while Mr. Trump was the boss of OLC,” the letter said.
McFadden, a Trump appointment, said the new post established by the Justice Department’s Agency of Legal Counsel was inconsistent with the strong conception of executive authority that office has generally espoused. He expected that it would be fleeting.
“I was struck by how subservient the OLC ruling for 2021 is to Congress.” “The OLC is not renowned for deferring to anybody other than the president,” McFadden added. “I simply don’t believe you’ll hold that point of view for anything other than this one request.”
McFadden questioned House and Justice Department attorneys for more than three hours on Tuesday about their arguments for obtaining Trump’s tax returns and whether there are any remaining separation of powers concerns to justify blocking the IRS from providing them to lawmakers now that Trump has left office.
Throughout the session, McFadden pressed the lawyers on how seriously they should take Trump’s allegations that Democratic legislators were attempting to get his tax returns for political purposes. He also questioned if Congress’ demand for tax returns might be used as a “stick over future presidents,” forcing them to “play nice with Congress or Congress will publish your tax returns.”
However, Letter dismissed both arguments, pointing that every sitting president except Trump has readily revealed his or her tax records. Although Trump’s taxes are filed differently than a typical sitting president so anomalies are to be expected.
“That load has to be small given that all of the previous presidents do not believe this is a burden or something to be concerned about,” Letter added.
McFadden seemed to be leaning toward the Justice Department’s request to stop the action, but he admitted at times that he wasn’t convinced it was at the proper procedural level to do so.
Can Trump stop Congress from viewing his taxes?
The judge suggested that some of Trump’s claims might survive the House’s attempt to dismiss the suit and prompt a new round of litigation, possibly after fact-finding, but McFadden also appeared uninterested in refereeing an investigation into House Ways and Means Chair Richard Neal’s (D-Mass.) motivations in making the request under a law specifically governing congressional access to tax records.
Patrick Strawbridge, an attorney for Trump, did not specify which documents would assist Trump to establish his case, but he did say it would not likely need testimony from Neal or others in the House.
“We have no plans to depose any members of Congress,” the attorney said.
Letter, on the other hand, was perplexed by the notion that Trump’s attorneys required additional data to prove the case.
“I’m not sure what Mr. Strawbridge has in mind?” Is he going to use the Office of Legal Counsel’s discovery? Is he going to summon [former OLC head] Steven Engel… and ask, ‘Did anybody in the White House sway your opinion?'” The letter said.
While Strawbridge denied delaying the case, the hearing raised the prospect that Trump is hoping that the lawsuit and subsequent appeals stretch out for a year or longer.
This would carry the matter into the next election when Republicans are expected to retake control of the House. By replacing Neal as chairwoman of the Ways and Means Committee with a Republican, the matter would likely be rendered moot.
Trump’s attorneys said that remarks by Neal and other Democratic members demonstrate that his request is a politically motivated vendetta unrelated to possible legislation.
It’s a 180-degree turn from Trump’s previous stance in situations when his official actions were questioned, such as travel ban orders that opponents said discriminated against Muslims. In that case, Trump’s counsel argued that judges should disregard his remarks in media interviews, public appearances, and on the campaign trail prior to his victory in 2016.
The Justice Department, for its part, said on Tuesday that the supposed utterances revealing insight on the intentions of Neal and other Democrats are “legally irrelevant.”
“They… belong in the world of political clamor, the political banter that the Supreme Court has stated they would not look to in the face of the assumption of a proper purpose for the investigation,” said the Justice Department lawyer.
The final verdict
McFadden repeatedly said that he did not consider the Supreme Court’s muddled judgment last year on the House’s attempt to use a subpoena to get a similar collection of information from Trump’s accountants at the accounting company Mazars to be the legal precedent for settling the present case.
“Honestly, I believe Mazars is a horrible match for this given that President Trump is no longer president,” McFadden said. “But I’m also grappling with the alternative.” “I have a hard time believing the founders assumed rights would kind of follow you once you were no longer in government… Former presidents, in my opinion, should not be given much weight in the separation-of-powers examination.”
However, the court pointed out that in a 1977 case involving President Richard Nixon’s papers, the Supreme Court said that access to a former president’s documents might raise concerns of executive authority.
McFadden said that he anticipated deciding on the current request to dismiss the case within the next two or three weeks.
“We’re in the unknown ground here with what to do with a claim like this from a former president,” the judge admitted.
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