Judge Neomi Rao is a cartoonishly right-wing judge. President Donald Trump’s appointee to the United States Court of Appeals for the District of Columbia Circuit once criticized a French court decision upholding a ban on “dwarf tossing.” She’s argued that much of the executive branch is unconstitutional, in part because members of Congress sometimes write letters to heads of agencies.
And yet, at a hearing Friday morning concerning President Trump’s ability to resist congressional oversight, even Rao appeared skeptical of many of the president’s lawyer’s arguments. Though the bulk of her questions suggested that Rao, a former law clerk to Justice Clarence Thomas and a former senior Trump White House official, will give her vote to Trump, even she grew impatient with many of Trump’s claims. And there is little risk that she picks up a majority.
The other two judges, Judges David Tatel and Patricia Millett, spent much of their morning eviscerating Trump’s arguments. So, while it remains to be seen if the Supreme Court will bail out Trump in Trump v. Mazars, his lawyers nevertheless had a bad day in the D.C. Circuit today.
The case involves the U.S. House Committee on Oversight and Reform’s subpoena seeking many of Trump’s financial documents from his accounting firm. Last May, a federal district court rejected Trump’s attempt to block those subpoenas. That decision is now on appeal to the D.C. Circuit.
Let’s start with what the law actually says. As Judge Amit Mehta, the district judge who ruled against Trump, explained in his opinion, “there are limits on Congress’s investigative authority,” but these limits “do not substantially constrain Congress.”
“So long as Congress investigates on a subject matter on which ‘legislation could be had,’” Mehta explained, “Congress acts as contemplated by Article I of the Constitution.”
There’s no question that the subpoena at issue in Mazars complies with this rule. The financial records the House seeks, according to the committee, “will aid its consideration of strengthening ethics and disclosure laws, as well as amending the penalties for violating such laws.” As Judge Millett pointed out during Friday’s hearing, the committee considered various ethics, contracting, financial disclosure bills during this Congress that could be informed by the subpoena at issue in Mazars, some of which already passed the House.
Faced with such an unfavorable legal landscape, Trump lawyer William Consovoy rested much of his argument on Supreme Court cases suggesting that Congress must have a “legitimate legislative purpose” when it engages in oversight. Again, the legitimate legislative purpose here is that a probe into the president’s financial records could reveal whether strong ethics laws are necessary to avoid presidential corruption. But Consovoy claimed that that wasn’t Congress’ real purpose.
The real purpose, he claimed, was “law enforcement” — that is, to catch Trump in illegal acts. At one point, he even suggested that the court should place all of the statements by House members that suggest they want to find information that damages Trump on one side of the scale, and all the statements suggesting that they are considering legislation on the other — and that he should prevail because “my pile is higher.”
That appeared to be too much, even for Judge Rao. Searching for Congress’ “motive,” Rao suggested in one question, is “off the table.” At another point she noted that Congress may have some “incidental” law enforcement purpose on its way to a legislative purpose.
Judge Millett, meanwhile, often appeared flabbergasted by Consovoy’s arguments — a problem Consovoy exacerbated by taking increasingly radical positions as he was pressed. At one point, for example, Millett accused Consovoy of claiming that all the ethics bills being considered by Congress are “a ruse” to justify a probe into Trump’s financial records. At another point, she trapped Consovoy into admitting that his arguments would lead to a truly absurd result.
To wit: Under Consovoy’s sweeping theory of presidential immunity, she asked at one point, could Congress send “a polite letter” asking Trump to turn over certain records. At another point, she summarized Consovoy’s view as “when it comes to the president’s conflict of interest” there’s “nothing Congress can do.”
Consovoy’s response was “with respect to the president, my answer is yes.”
Meanwhile, while Tatel and Millett did ask critical questions of Douglas Letter, the lawyer arguing on behalf of the House committee, many of their questions seemed intended to figure out how to craft an opinion ruling against Trump. Others seemed to be probing for the best rebuttal to Consovoy’s arguments. A few were critical of weaker aspects of Letter’s argument that he does not need to prevail on in order to win this case.
But the only judge who seemed likely to vote in Trump’s favor was Rao. She launched into a non-sequitur at one point suggesting that the subpoena is invalid unless it is approved by the entire House. At other times, she seemed sympathetic to arguments that the House would have to amend its rules to make them clearer if it wants to subpoena a sitting president’s records.
There is a small chance that a majority could decide that the House needs to amend its rules before it can enforce the subpoena, but that would be a easy matter for the House to take care of quickly.
So Trump had a bad day in court today. It is likely that he will lose the Mazars case. And it is even possible — though hardly likely — that he won’t get Rao’s vote.