Sunday, November 24, 2019

District Court Gives Trump Limited Protection in Tax Returns Case

Judge Carl J. Nichols (D.D.C.) earlier this week ordered House Ways and Means Chair Richard Neal to provide President Trump and the court contemporaneous notice if he seeks President Trump's tax returns under New York's TRUST Act. Judge Nichols further ordered Chair Neal not to receive the tax returns for 14 days after any request.

The order is designed to allow the court to determine whether a request is valid. Without the notice and delay requirements, Chair Neal could request, and receive, the records without President Trump's knowledge, let alone his challenge, then immediately mooting his claim.

New York's TRUST Act authorizes certain congressional leaders to request and receive certain public officials' state tax returns, including the tax returns of the president, without providing prior notice to the officials. After enactment, President Trump sued, arguing that the TRUST Act violated Article I, because such a request would lack a legitimate legislative purpose, and the First Amendment. He also sought emergency relief under the All Writs Act, asking the court for an order that would allow the parties to litigate the legality of any request for his state returns before New York authorities would release them (and thus render any challenge moot). 

Congressional Democrats moved to dismiss, arguing that they were immune from suit under the Speech and Debate Clause, and that President Trump lacked standing.

The court ruled that it couldn't yet determine whether Chair Neal would be immune from suit under the Speech and Debate Clause, because he hasn't yet requested the records. The court said that Speech & Debate immunity turns on whether any request would concern matters "on which legislative could be had," and thus turns on legislative purpose. But because nobody has made a request, the court can't determine the purpose of any request.

As to standing, the court ruled that President Trump has standing: because "[t]he risk of future harm to Mr. Trump thus requires just a single step by a single actor, Chairman Neal, who is a party to this litigation," "there is sufficiently substantial risk that future harm could occur to warrant limited relief under the All Writs Act." 

The court then ordered that Chair Neal inform President Trump and the court at the same time when he makes any request, and not to receive the tax returns for 14 days after. According to the court, this "will prevent Mr. Trump's claims from becoming ripe and then moot almost simultaneously without notice to him or the Court."

https://lawprofessors.typepad.com/conlaw/2019/11/district-court-gives-trump-limited-protection-in-tax-returns-case.html

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