Amicus Briefs
Trump v. Vance
140 S.Ct. 2412 (2020)
US Supreme Court
Summary
Breaking with half a century of precedent—and his own public statements during the 2016 campaign—President Donald J. Trump has refused to disclose his tax returns and related financial records. This refusal has raised widespread suspicion about the contents of the President’s financial records; conflicts between his business interests and the duties of his office; financial entanglements with foreign powers; and possible criminal conduct.
The President’s concealment of his financial records has also given rise to multiple subpoenas: one issued by a New York grand jury to Mazars USA, LLP, the accounting firm used by the President; one issued by Congress to the same firm; and a series of subpoenas issued by Congress to Deutsche Bank A.G. and Capital One, two financial institutions with which the President regularly conducts business.
The President brought actions to quash all of these subpoenas, variously arguing (1) that the President could not be subject to any form of criminal investigation during his tenure in office; and (2) that the Congressional subpoenas were not a valid exercise of Congress’s Article I power. The Second Circuit and D.C. Circuit courts of appeals rejected these arguments and upheld the validity the subpoenas. The President petitioned the Supreme Court for certiorari in each instance. The Court granted all three writs in December. The cases will be argued on March 31, 2020.
The President brought actions to quash all of these subpoenas, variously arguing (1) that the President could not be subject to any form of criminal investigation during his tenure in office; and (2) that the Congressional subpoenas were not a valid exercise of Congress’s Article I power. The Second Circuit and D.C. Circuit courts of appeals rejected these arguments and upheld the validity the subpoenas. The President petitioned the Supreme Court for certiorari in each instance. The Court granted all three writs in December. The cases will be argued on March 31, 2020.
On March 4, 2020, EPIC filed an amicus brief in support of the respondents in Trump v. Vance. EPIC urged the Supreme Court to allow the release of President Trump’s tax returns to a grand jury. EPIC explained that President Trump broke with 40 years of precedent by concealing his tax records, even as he sought to collect sensitive voter and citizenship data from the public. “This is inverted liberty: privacy for the President and compelled disclosure of personal data for the public,” EPIC argued. “That is antithetical to the structure and practice of modern democracies which safeguard the privacy of citizens and impose transparency obligations on political leaders, most notably the President.”
Background
Trump v. Vance (2d Cir)
Trump v. Vance, No. 19-635 (cert. granted Dec. 13, 2019) pertains to a state grand jury subpoena for President Trump’s financial records. The case arises from a 2019 subpoena served on Mazars USA by the Manhattan District Attorney for “‘documents and communications’ . . . relating to suspected ‘hush money’ payments made to two women.” Trump v. Vance, 941 F.3d 631, 635 (2d Cir. 2019), cert. granted, No. 19-635, 2019 WL 6797730 (U.S. Dec. 13, 2019). The subpoena covers President Trump’s tax records.
President Trump filed suit in the U.S. District Court for the Southern District of New York to block enforcement of the subpoena, arguing that “the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind.” The district court dismissed the case under the doctrine of Younger abstention, a doctrine which generally requires federal courts to refrain from interfering in ongoing state criminal proceedings. The Court also noted that it found the President’s arguments “repugnant to the nation’s governmental structure and constitutional values[.]” President Trump appealed.
On appeal, the Second Circuit affirmed the ruling of the district court on alternate grounds, but vacated with respect to the district court’s Younger analysis. The court of appeals concluded that it need not refrain from deciding the case at hand, but held “that presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President.” The Court wrote that “[t]he President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions.”
Trump v. Mazars (D.C. Circuit)
Trump v. Mazars, No. 19-715 (U.S. cert. granted Dec. 13, 2019), arises from an April 2019 subpoena issued by House Committee on Oversight and Reform to Mazars USA, LLP. The subpoena seeks “records related to work performed for President Trump and several of his business entities both before and after he took office.” Trump v. Mazars USA, LLP, 940 F.3d 710, 714 (D.C. Cir. 2019), cert. granted, No. 19-715, 2019 WL 6797734 (U.S. Dec. 13, 2019). The Committee contends that “the documents will inform its investigation into whether Congress should amend or supplement current ethics-in-government laws.” Specifically, the Committee is considering whether to revise the Ethics in Government Act of 1978, which “requires many aspiring and current government officials, including presidential candidates and sitting Presidents, to file financial disclosure reports at various times during their candidacies and incumbencies.”
Shortly after the Committee issued its subpoena to Mazars, President Trump and several of his businesses filed suit in the U.S. District Court for the District of Columbia and moved for a preliminary injunction to prohibit enforcement. The President argued that “the Oversight Committee’s subpoena to Mazars exceeds the Committee’s constitutional power to conduct investigations” and “that there is no legislative purpose for the subpoena.” The district court rejected these arguments, concluding that Congress’s subpoena was supported by “facially valid legislative purposes” and that “it is not for the court to question whether the Committee’s actions are truly motivated by political considerations.” The court granted judgment for the Committee, and President Trump appealed.
On October 11, 2019, the U.S. Court of Appeals for the D.C. Circuit affirmed the decision of the district court. The court of appeals held that “[c]ontrary 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.” The court determined that the Committee “was engaged in a ‘legitimate legislative investigation,’ rather than an impermissible law-enforcement inquiry,” and that the subpoena validly “seeks information important to determining the fitness of legislation to address potential problems within the Executive Branch and the electoral system.” Accordingly, the court refused to block the subpoena.
Judge Neomi Rao filed a dissenting opinion, arguing that “[a]llowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.”
Trump v. Deutsche Bank (Second Circuit)
The facts and procedural history Trump v. Deutsche Bank, No. 19-760 (U.S. cert. granted Dec. 13, 2019), largely track those of Trump v. Mazars. The case arises from three subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence to Deutsche Bank and Capital One. Trump v. Deutsche Bank AG, 943 F.3d 627, 632 (2d Cir. 2019), cert. granted, No. 19-760 (19A640), 2019 WL 6797733 (U.S. Dec. 13, 2019). The subpoenas seek certain financial records of President Trump, his family members, the Trump Organization, and affiliated entities.
President Trump et al. filed suit in the U.S. District Court for the Southern District of New York to block enforcement of the subpoena, arguing that it violated the Right to Financial Privacy Act, 26 U.S.C. § 6103, and the limits of Congress’s Article I power. The district court rejected these arguments and denied the President’s motion for a preliminary injunction. President Trump appealed.
On appeal, the U.S. Court of Appeals for the Second Circuit largely affirmed the ruling of the district court (though remanded in part for a procedural clarification and to allow “Appellants to object to disclosure of other specific documents”). The Second Circuit ruled (1) that the house Committees are not required to comply with the Right to Financial Privacy Act; (2) that disclosure of the President’s returns from a third party to Congress via subpoena does not violate 26 U.S.C. § 6103; and (3) that the subpoenas were a valid exercise of Congress’s legislative power.
As to the constitutional question, the court wrote that the Committees’ subpoenas served Congress’s valid legislative interests in:
[N]ational security and the integrity of elections, and, more specifically, enforcement of anti-money-laundering/counter-financing of terrorism laws, terrorist financing, the movement of illicit funds through the global financial system including the real estate market, the scope of the Russian government’s operations to influence the U.S. political process, and whether the Lead Plaintiff was vulnerable to foreign exploitation.
The court also concluded that “the interests of Congress in pursuing the investigations for which the challenged subpoenas were issued substantially ‘overbalance’ the privacy interests invaded by disclosure of financial documents, including the non-official documents of the Lead Plaintiff.”
Judge Livingston filed an opinion concurring in part and dissenting in part, chiefly arguing that a fuller factual record about the subpoenaed documents was necessary to resolve the appeal.
U.S. Supreme Court
In November and December 2019, President Trump et al. petitioned the Supreme Court for writs of certiorari in Vance, Mazars, and Deutsche Bank.
The question presented in the Vance petition was as follows:
Whether a grand-jury subpoena served on a custodian of the president’s personal records, demanding production of nearly 10 years’ worth of the president’s financial papers and his tax returns, violates Article II and the Supremacy Clause of the Constitution.
The question presented in the Mazars petition was as follows:
Whether the Committee on Oversight and Reform of the U.S. House of Representatives has the constitutional and statutory authority to issue a subpoena to the accountant for President Trump and several of his business entities demanding private financial records belonging to the president.
No formal question was presented by the petitioners in Deutsche Bank, as the Court ultimately construed the petitioners’ stay application as a petition for certiorari.
On December 13, 2019, the Supreme Court granted all three petitions and stayed the relevant mandates of the D.C. Circuit and Second Circuit. The Court also consolidated the two Congressional subpoena cases (Mazars and Deutsche Bank). All three cases are set for oral argument on March 31, 2020.
EPIC’s Interest
Since President Trump took office in January 2017, EPIC has undertaken numerous efforts to secure the public release of the President’s tax returns.
As part of EPIC’s Democracy and Cybersecurity Project, EPIC filed Freedom of Information Act (“FOIA”) requests in February and March of 2017 for the President’s returns. EPIC called on the IRS to exercise its authority under 26 U.S.C. § 6103(k)(3) to disclose an individual’s tax records in order to “correct a misstatement of fact published or disclosed with respect to such taxpayer’s return[.]” EPIC highlighted multiple misstatements of fact made by President Trump concerning his tax returns and interactions with the IRS, including misstatements concerning his financial entanglements with the Russian government. When the IRS refused to process EPIC’s FOIA request, EPIC filed suit. EPIC v. IRS, 261 F. Supp. 3d 1 (D.D.C. 2017), aff’d, 910 F.3d 1232 (D.C. Cir. 2018).
In EPIC v. IRS II, EPIC has filed a separate FOIA request and lawsuit for certain of President Trump’s personal and business tax records pursuant to 26 U.S.C. § 6103(k)(1). That provision requires the IRS to disclose records of “offers-in-compromise,” which are administrative settlements of outstanding tax liabilities. EPIC is currently awaiting a ruling from the district court on the IRS’s motion to dismiss EPIC’s complaint.
EPIC has also made efforts beyond the FOIA to effect the public release of the President’s returns. In December 2018, EPIC wrote to the House Committee on Ways and Means, the Joint Committee on Taxation, and the Senate Finance Committee urging the committees to exercise their authority under 26 U.S.C. § 6103 to obtain the President’s returns from the IRS. When the House Committee on Ways and Means took that advice and demanded the President’s returns under § 6103(f), EPIC applauded the decision and filed a FOIA request for records of communications between the IRS and the Committee. And EPIC President Marc Rotenberg has written about the double standard exhibited by President Trump in demanding public disclosure of personal voter data while refusing to disclose his tax returns.
Legal Documents
Trump v. Vance
U.S. Supreme Court, (No. 19-635)
- Petition for Writ of Certiorari (Nov. 14, 2019)
- Brief of Respondents Cyrus R. Vance, Jr., in His Official Capacity as District Attorney for the County of New York, et al. in Opposition (Nov. 21, 2019)
- Brief Amicus Curiae of United States (Nov. 22, 2019)
- Reply Brief of Petitioners (Nov. 25, 2019)
- Brief Amicus Curiae of Christian Family Coalition (CRC) (Nov. 25, 2019)
U.S. Court of Appeals for the Second Circuit, 941 F.3d 631 (2d Cir. 2019) (No. 19-3204)
- Opinion (Nov. 4, 2019)
- Oral Argument (Oct. 23, 2019)
U.S. District Court for the Southern District of New York, 395 F. Supp. 3d 283 (S.D.N.Y. 2019) (No. 19-8694)
- Preliminary Injunction Memorandum Opinion (Oct. 7, 2019)
- Complaint (Apr. 22, 2019)
Trump v. Mazars USA, LLP
U.S. Supreme Court, (No. 19-715)
- Petition Stage
- Petition for Writ of Certiorari (Dec. 4, 2019)
- Brief of Respondents Committee on Government Oversight and Reform of the U.S. House of Representatives in Opposition (Dec. 11, 2019)
- Reply Brief of Petitioners (Dec. 12, 2019)
- Merits Stage
- Brief of Petitioners Donald J. Trump et al. (Jan. 27, 2020)
- Joint Appendix (Jan. 27, 2020)
- Briefs of Amici Curiae in Support of Petitioner
- Brief of Foundation for Moral Law (Jan. 29, 2020)
- Brief of W. Burlette Carter (Jan. 31, 2020)
- Brief of the United States (Feb. 3, 2020)
- Brief of Eagle Forum Education & Legal Defense Fund (Feb. 3, 2020)
- Brief of Christian Family Coalition (CFC) of Florida, Inc. (Feb. 3, 2020)
- Brief of Prof. Victor Williams (Feb. 3, 2020)
- Brief of Respondents (Feb. 26, 2020)
U.S. Court of Appeals for the D.C. Circuit, 930 F.3d 710 (D.C. Cir. 2019) (No. 19-5142)
- Opinion (Oct. 11, 2019)
- Oral Argument (July 12, 2019)
U.S. District Court for the District of Columbia, 380 F. Supp. 3d 76 (D.D.C. 2019) (No. 19-1136)
- Preliminary Injunction Memorandum Opinion (May 20, 2019)
- Complaint (Apr. 22, 2019)
Trump v. Deutsche Bank AG
U.S. Supreme Court, (No. 19-760)
- Petition Stage
- Emergency Application for a Recall and Stay of Mandate Pending the Filing and Disposition of a Petition for a Writ of Certiorari (Dec. 6, 2019)
- Response to Application from Respondents Committee on Financial Services of the U.S. House of Representatives (Dec. 11, 2019)
- Reply in Support of Emergency Application for a Recall and Stay of Mandate (Dec. 12, 2019)
- Merits Stage
- Trump v. Deutsche Bank was consolidated by the Court with Trump v. Mazars. Merits briefs are listed above under Trump v. Mazars.
U.S. Court of Appeals for the Second Circuit, 943 F.3d 627 (2d Cir. 2019) (No. 19-1540)
- Opinion (Dec. 3, 2019)
- Oral Argument (Aug. 23, 2019)
U.S. District Court for the Southern District of New York, No. 19-3826, 2019 WL 2204898 (S.D.N.Y. 2019)
- Preliminary Injunction Memorandum Opinion (May 22, 2019)
- Complaint (Apr. 29, 2019)
Resources
News
- Ed Kilgore, How The High Court Could Reshape The TCPA’s Future, NY Mag (Dec. 14, 2019)
- Robert Barnes, Supreme Court Will Take Up Trump’s Broad Claims of Protection from Investigation, Wash. Post (Dec. 13, 2019)
- Adam Liptak, District Court Finds no Violation on First Amendment in TCPA Suit Brought by Coalition of Bi-Partisan Political Organizations, N.Y. Times (Dec. 13, 2019)
- Robert Barnes, House Asks Supreme Court Not to Delay Access to Trump’s Financial Records, Citing Threat to 2020 Elections, Wash. Post (Dec. 11, 2019)
- Adam Liptak, Supreme Court to Temporarily Blocks Disclosure of Trump’s Financial Records, N.Y. Times (Nov. 25, 2019)
- Adam Liptak, Justice Dept. Urges Supreme Court to Back Trump in Tax Records Case, N.Y. Times (Nov. 22, 2019)
- Robert Barnes, Supreme Court Precedents Do Not Shield Trump Financial Records, House, Prosecutors Argue, Wash. Post (Nov. 21, 2019)
- Adam Liptak, Supreme Court Urged to Allow Release of Trump’s Financial Records, N.Y. Times (Nov. 21, 2019)
- Adam Liptak, Chief Justice Gives Trump Temporary Reprieve in Financial Records Case, N.Y. Times (Nov. 18, 2019)
- Adam Liptak, Trump Again Asks Supreme Court to Bar Release of His Financial Records, N.Y. Times (Nov. 15, 2019)
- Adam Liptak, Trump Asks Supreme Court to Bar Release of His Tax Returns, N.Y. Times (Nov. 14, 2019)
- Adam Liptak, Trump Tax Return Case Confronts Supreme Court with a Momentous Choice, N.Y. Times (Nov. 5, 2019)
- Adam Liptak, Trump Taxes: Appeals Court Rules President Must Turn Over 8 Years of Tax Returns, N.Y. Times (Nov. 4, 2019)
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