Judge Neomi Rao pilloried for her dissent in Trump tax returns case

Judge Neomi Rao of D.C. Circuit Court of Appeals (Getty Images)

WASHINGTON, D.C. — President Trump appointed Judge Neomi Jehangir Rao, 45, who was confirmed by the full Senate on March 13 by a strictly party line vote of 53-47, with all the Republicans voting for and Democrats against, on her lifetime appointment to the D.C. Circuit Court of Appeals, in her first major ruling Oct. 11, dissented with her colleagues that the President’s accounting firm need not comply with a Congressional subpoena for eight years of his tax and financial records.

In the case involving the subpoena by Congressional Oversight Committee chaired by Rep. Elijah Cummings (D-Md.), the court’s majority affirmed a lower court ruling that denied Trump attorneys’ request for a permanent injunction against the subpoena, except for Rao who argued in her dissent that if the House wants to investigate possible wrongdoing by the president, it should do so by invoking its constitutional impeachment powers, not its regular oversight powers.

“Throughout our history, Congress, the president, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment,” she said, and warned, “Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.”

In her dissent — which some analysts believed could provide a road map for other conservatives, including on the Supreme Court, but was pilloried by other analysts, including prominent progressive legal pundits — Rao said Congress has the power to investigate private individuals. But, she said, that power did not extend to the president in the same way because the Constitution has created impeachment as a mechanism to investigate him.

The Detroit, Michigan-born Rao — was earlier the administrator of the Office of Information and Regulatory Affairs (OIRA) and Trump’s ‘regulatory czar,’ kept hammering away in her dissent that if Congress is allowed to act otherwise, it would result in a disruption of the Constitution’s separation of powers, and as a result could give the legislature the authority “to expand its control over the other branches.”

Jay Sekulow, one of Trump’s private attorneys along with the mercurial and controversial Rudy Giuliani, said in a statement, “While we are reviewing the court’s lengthy decision, as well as Judge Rao’s dissent, we continue to believe that this subpoena is not a legitimate exercise of Congress’s legislative authority.”

But the president’s lawyer in the case, White House Legal Counsel, William Consovoy, declined to comment on the ruling or the legal team’s next steps, though it was highly likely that Trump would appeal — either to the full D.C. Circuit or to the Supreme Court.

House Democrats agreed, as part of the appeals process, with the president’s private legal team to suspend deadlines set by the subpoena for turning over the records while the court case is pending.

Consequently, the timeline envisaged the case to move expeditiously by court standards and could likely set up a potential ruling from the Supreme Court in the midst of the presidential campaign.

Mazars USA, Trump’s accounting firm in question, said in a statement that it stood by its previous statement about the case in that it would “respect the legal process and fully comply with its legal obligations.”

Judges David S. Tatel and Patricia A. Millett, both appointed by Democratic presidents, who wrote for the court, said, “Contrary to the president’s arguments, the Committee possesses authority under both the House Rules and the Constitution to issue the subpoena, and Mazars must comply.”

Citing former Supreme Court Justice Louis Brandeis’s 1926 argument, Tatel and Millett argued that the purpose of separation of powers is “not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

In the 66-page opinion, written by Tatel, he said that like Congress had in the Teapot Dome and other presidential scandals, the “Oversight Committee has expressed an interest in determining whether and how illegal conduct has occurred.”

“Even more so,” he said, “the House has even put its legislation where its mouth is,” passing one bill to address problems it is investigating and proposing others.

Thus, he wrote, “Whether current financial disclosure laws are successfully eliciting the right information from the sitting President, occupant of the highest elected office in the land, is undoubtedly ‘a matter of concern to the United States,’ “ and added,  “It is not at all suspicious that the Committee would focus an investigation into presidential financial disclosures on the accuracy and sufficiency of the sitting President’s filings.”

 Mark Joseph Stern, legal writer for Slate, slammed Rao, describing her dissent as

“deeply embarrassing,” because it clearly showed that the entire goal of her ruling is to protect the president.

“The thrust of Rao’s dissent is that the House has to invoke its ‘impeachment power’ to investigate the president,” he noted on Twitter and argued, “It cannot investigate him pursuant to its legislative authority. Which is just not true! Congress passes legislation governing the executive branch all the time!”

Stern said, “If taken seriously, Rao’s argument would insulate the president from congressional investigations into his illegal conduct ‘unless’ (1) the House invoked impeachment and (2) the courts found the allegations to be within ‘the scope of impeachable offenses,’” and exclaimed,”What?!”

“Rao has claimed for herself the power to decide that the Mazars subpoena is ‘really’ about impeachment — not legislation, as the House claims—and wants to crush it on that basis, “ he said, and ridiculed Rao, saying, “She simply does not have that authority. This is insane. Her whole dissent is preposterous.”

Interestingly, the appeals court was reviewing an expedited decision from U.S. District Judge Amit P. Mehta, who pointed to decades of legal precedent upholding Congress’s right to investigate, and had put the case on a fast track.

“It is simply not fathomable that a Constitution that grants Congress the power to remove a President for reasons including criminal behavior would deny Congress the power to investigate him for unlawful conduct — past or present — even without formally opening an impeachment inquiry, Mehta wrote.

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