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Friday, October 11, 2019

The President’s Tax Returns

I highly recommend reading today DC Circuit opinions. The panel opinion by Judge Tatel and the dissent by Judge Rao are both excellent and turn, I think, largely on the standard of review that should be applied to a congressional subpoena of the President or other officials subject to impeachment. 

That said, the most relevant question now is whether the DC Circuit decides to take the case en banc. If it does, then it’s hard to see how the issue can be resolved before the presidential election. 

Posted by Gerard Magliocca on October 11, 2019 at 07:59 PM | Permalink


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Posted by: mcafee.com/activate | Oct 16, 2019 12:51:15 AM

Adam, you can read here in Wikipedia about the Ukraine affair ( generally speaking):


Posted by: El roam | Oct 14, 2019 7:02:10 AM

Adam, not at all moot. For the potential impeachment article, has nothing to do so with tax return, or other investigations so far. Here I quote from the subpoena to Pompeo (secretary of state) here:

The Committees are investigating the extent to which President Trump jeopardized national security by pressing Ukraine to interfere with our 2020 election and by withholding security assistance provided by Congress to help Ukraine counter Russian aggression.

End of quotation:

So, this is the subject of the impeachment. The rest, had to do, not with impeachment, but, with legislative purposes as declared so by the House ( or the committees ). But officially, it is the "Ukraine gate " affair as known or named so. So, not at all moot.Those are parallel investigations in fact.

Link to the subpoena:



Posted by: El roam | Oct 14, 2019 6:35:36 AM

Isn't this all moot given that the House has now opened an impeachment inquiry? That is, don't current circumstances satisfy the conditions Rao sets forth in her dissent?

Posted by: Adam | Oct 13, 2019 9:16:56 PM


Do you really think it wise or acceptable for you to 'mansplain' the law to a sitting federal judge just because that judge is a woman and (let's be honest) a POC?

Posted by: thegreatdisappointment | Oct 13, 2019 3:09:23 PM

Judge Rao's reasoning is that because the Constitution gives the House the power to impeach civil officers, and the Senate the power to try impeachments and to remove officers, that must be the exclusive means by which Congress can investigate wrongdoing by any and all such civil officers--the President, the Vice President, all Art. III judges, all civil officers within the Executive branch, etc.

No, that's not an exaggeration. She wrote: "Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials." And: "Allowing Congress to use the legislative power to circumvent the impeachment process disrupts the separation of powers." And: "Investigating unlawful actions by impeachable officials is outside the legislative power because impeachment provides the exclusive mechanism for Congress to investigate such conduct." And: "The Constitution is best read to provide for impeachment as the exclusive mechanism for Congress to investigate the wrongdoing of the President and other impeachable officials." [There are plenty more examples, too.]

Personally, I find such a stunning proposition to be virtually self-refuting--or, in any event, refuted by everything we know about the history of congressional oversight. (That why it's hardly surprising that Trump's attorneys didn't make this argument, even though they were very aggressive/creative in the arguments they did make.)

Judge Rao's principal error, but hardly her only one, is that she conflates the power to try officials for "crimes," and to remove them from office (something Congress can only do by impeachment, trial and a 2/3 vote in the Senate, of course) with the power to merely investigate, uncover and publicize wrongdoing by government officials--hardly limited to "crimes," let alone to conduct that might warrant the extreme sanction of removal. (And in this case, also to investigate possible conflicts of interest of the President, something that might not even amount to wrongdoing at all.) This is, of course, the sort of thing Congress has been doing throughout the history of the nation, both in the service of possible legislation and pursuant to its "informing function" (informing itself and the public about how the government is operating and whether and how officials are or are not complying with the law), a function Congress "has assiduously performed ... [f]rom the earliest times in its history." Watkins v. United States, 354 U.S. 178, 200 n.33 (1957). (I wrote much more about this after the oral argument in Mazars, here: https://balkin.blogspot.com/2019/07/can-congress-investigate-whether.html)

Posted by: MARTIN LEDERMAN | Oct 12, 2019 11:17:12 AM

I have seen zero defenses of the dissent. Have you point me at one?

Posted by: Matthew Kugler | Oct 12, 2019 9:24:18 AM

Important. The dissenting is really interesting as stated indeed. Just the essence, I quote:

Allowing Congress to investigate impeachable officials for suspicions of criminality pursuant to the legislative power has serious consequences for the separation of powers because it allows Congress to escape the responsibility and accountability inherent in impeachment proceedings.

One may reach the ruling here:



Posted by: El roam | Oct 11, 2019 8:31:17 PM

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