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Trump-Appointed Judge to Preside Over House Democrats’ Tax Return Lawsuit


Robert Barnes Trevor McFadden Donald Trump

A Trump-appointed federal judge who donated money to the Trump presidential campaign will preside over House Democrats’ lawsuit seeking to obtain President Donald Trump‘s tax returns.

The House Ways and Means Committee filed a lawsuit Tuesday against the U.S. Treasury Department and the Internal Revenue Service (IRS) demanding the release of the president’s tax returns after being rebuffed by the administration for months. The case was assigned on Wednesday to Judge Trevor N. McFadden of the District Court for the District of Columbia, who made headlines last month when he ruled that House Democrats did not have legal standing to challenge President Trump’s plan to fund construction of a wall on the southern border with approximately $6 billion intended to be spent elsewhere.

In his 24-page decision, McFadden held that the court did not have authority to resolve the dispute between the legislative and executive branches of the government where “the parties are contesting the meaning of bills that Congress has validly passed.”

“And quarrels over how to implement a law do not support legislative standing, as the ‘Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts,’” McFadden wrote. He thereby dismissed the lawsuit.

In his ruling against House Democrats on border funding, however, McFadden provided a detailed analysis of the House’s wide ranging investigatory powers. McFadden indicated that the House would have standing in a lawsuit brought under congressional investigatory powers.

“Indeed, using the Judiciary to vindicate the House’s investigatory power is constitutionally distinct from seeking Article III standing for a supposed harm to Congress’s Appropriations power. Unlike the Appropriations power, which requires bicameralism and presentment, the investigatory power is one of the few under the Constitution that each House of Congress may exercise individually,” McFadden wrote.

McFadden also signaled that when congressional investigations are thwarted, it is entirely appropriate for the courts to step in and resolve the issue.

It is perhaps for this reason that the House’s power to investigate has been enforced with periodic help from federal courts. In 1927, for instance, the Supreme Court observed that a ‘legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.’

Legal observers have noted McFadden’s border spending ruling and wondered whether he will rule similarly in this case.

Here’s why it is interesting.

House Ways and Means Committee Chairman Rep. Richard Neal (D-Mass.) claimed in his demand for Trump’s tax returns that the Committee was “considering legislative proposals and conducting oversight related to our Federal tax laws, including, but not limited to, the extent to which the IRS audits and enforces the Federal tax laws against a President.” The administration did not comply with Neal subpoena.

The Department of Justice’s (DOJ) Office of Legal Counsel (OLC) published an opinion in response, supporting Treasury Secretary Steven Mnuchin‘s refusal to hand over the tax returns. The opinion, penned by OLC’s Assistant Attorney General Steven Engel, said that House Democrats were using 26 U.S. Code § 6103(f) merely as a pretext to obtain Trump’s tax returns. Engel said that Mnuchin was right to say this was not a legitimate legislative purpose.

“While the Executive Branch should accord due deference and respect to congressional requests, Treasury was not obliged to accept the Committee’s stated purpose without question, and based on all the facts and circumstances, we agreed that the Committee lacked a legitimate legislative purpose for its request,” Engel said.

But McFadden also briefly discussed subpoena power in his dismissal of the border wall suit, pointing out that “informational injuries to Congress arise ‘primarily in subpoena enforcement cases'” [citations removed]:

During oral argument, the House also suggested that U.S. House of Representatives v. U.S. Department of Commerce, provides an example of courts’ willingness to recognize standing in similar contexts. Not so. There, the House had standing to argue that the Census Bureau’s “statistical sampling will deprive Congress of information it is entitled to by statute (and the Constitution), and must have in order to perform its mandatory constitutional duty—the apportionment of Representatives among the states.” In other words, the “inability to receive information which a person is entitled to by law” is “sufficiently concrete and particular to satisfy constitutional standing requirements.” This type of informational injury, which an individual can allege, is conceptually distinct from the “institutional” harm to an “institutional plaintiff” the House asks the Court to recognize here. More, informational injuries to Congress arise “primarily in subpoena enforcement cases,” which hold that the legislature “has standing to assert its investigatory power.”

The three-part standing test House Democrats previously failed requires that the plaintiff suffer an “injury in fact”:

1) The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent

2) There must be a causal connection between the injury and the conduct brought before the court

3) It must be likely, rather than speculative, that a favorable decision by the court will redress the injury

Matt Naham contributed to this report.

[Images via Mark Wilson/Getty Images and United States District Court for the District of Columbia]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.