Donald Trump’s legal challenge to the newly enacted New York Law permitting state tax returns to be turned over to select congressional committees upon request led to an oral argument for a motion to enjoin the state of New York on Monday.
Tierney Sneed reports, Judge Looking For ‘Modest’ Relief For Trump In NY Tax Returns Dispute:
U.S. District Judge Carl Nichols said he was very skeptical of the arguments and proposals being put forward by Trump’s attorney Will Consovoy. But he was also vexed by the “conundrum” that he said the situation was putting him in: if the House made such a request, the New York state officials could grant it almost immediately (once it was determined that the request met the law’s requirement) without any notice being given to the President.
“I get that may be technically allowed, but it puts me in an awkward position,” Nichols said, while expressing frustration that neither the House or the New York officials would commit to give Trump time to litigate any hypothetical request for his state tax returns.
Courts do not render advisory opinions on hypothetical issues. There must be an actual case and controversy that is ripe for litigation, i.e., an injury that can be remedied.
Nichols gave a couple of examples of the kinds of agreements the parties could put forward to avoid this scenario: the House could agree to give Trump some heads up before it made the request or the New York state officials could notify Trump once the request was received.
But the judge is putting it on the parties to negotiate the next steps. He said if they could not agree on a proposal by Tuesday, each party could put individual proposals for him to consider.
He gave the parties three conditions for the ideal proposal for the next steps: that it allows for the request to be litigated before a case is made moot by the records being produced; that it will allow for a request to be adjudicated when it is ripe, meaning that there will be an actual request for him to weigh; and that the agreement treads “very lightly if at all” on the separation of powers, and specifically the Speech and Debate Clause.
Much of the hour and a half of oral arguments focused latter issue. The House Ways and Means Committee, represented by House counsel Doug Letter, argued that blocking lawmakers from making the request would violate the Speech and Debate Clause, which gives lawmakers broad protections for actions and statements made in the legislative space.
Nichols, a Trump appointee who has only very recently joined the court, acknowledged that it would “problematic” for him to block the House from making its request for that reason, hence his request that parties negotiate some other next steps that would preserve Trump’s ability to bring a challenge to such a request.
Nichols also said the issue wouldn’t be ripe to litigate until there was a request from the House for the records, so that the judge could weigh whether it was a legitimate action within the House’s legitimate legislative sphere.
He told the parties to file a status report outlining a shared agreement or their individual proposals by 6 p.m. Tuesday.
The parties failed to reach a compromise. You’re shocked, I’m sure.
Tierney Sneed follows up, Trump, House Tell Judge They Can’t Agree On Next Steps In NY Tax Returns Dispute:
U.S. District Judge Carl Nichols had asked that Trump, House Democrats and New York state officials negotiate an agreement that would address the concerns the judge raised about a new law in New York that would allow Congress to request the President’s state tax returns.
The parties said in a joint status report on Tuesday that the could not reach such an agreement and offered competing proposals for how the case should move forward.
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In the status report, Trump suggested there be a two week waiting period, either before the House formally makes a request or after New York receives it, to allow him to litigate the request before the records are produced.
The House committee is arguing that the judge should not grant Trump’s request that committee be blocked from making a move towards getting the tax returns: “If the Court were to grant the requested relief against the Committee, as far as counsel for the House is aware, it would be the first time that any Court would have overridden Speech or Debate Clause immunity and enjoined the Senate, the House, or any component of the Legislative Branch in the absence of any action having been taken first by Congress.”
An issue that came up in Monday’s hearing is whether the D.C.-based judge — if unable legally to block the House from making the request — would even have authority to order the New York officials not to produce the records.
The New York plaintiffs are asking for the judge to go ahead and adjudicate the question of the judge’s authority. Under that proposal, the New York officials offered to hold off on producing the records until at least one week after the decision on those issues is handed down.
So we should have a ruling in another week or so.
It appears from his reported comments that this Judge agrees with the legal position of the House, but he is bending over backwards to create an extrajudicial notice period to allow Trump an opportunity to challenge a request of the House Ways and Means Committee for his New York tax returns, which has not yet happened (hence the ripeness issue).
Both Section 6103(f) of the federal tax code and the statutory compliment New York law do not contain any notice provision. If the congressional committee requests the tax records, they “shall” be produced to the committee. It is a non-discretionary ministerial act. So this Judge would be wrong to superimpose an extrajudicial notice period not provided for by law.
This would only be for the purpose of delay, interfering with legitimate congressional oversight, when the ultimate legal outcome is certain: the committee will get the tax returns.
This case is going to be appealed regardless of how the judge rules, but the law is clearly on the side of the House. This litigation is solely for the purpose of delay in an attempt to to run out the clock.
UPDATE: Well that didn’t take long. On Thursday, Judge Carl Nichols, a Trump appointee, issued an order that temporarily prevents New York from providing the House Ways and Means Committee with President Trump’s state tax returns. Judge temporarily blocks NY from sharing Trump tax returns:
The order comes one day after Nichols said that he was leaning toward issuing such an order during a teleconference.
This is only a temporary order to preserve the status quo until the court hears arguments on the substantive motion to dismiss, and rules on the motion. The court does not want the case to become moot by the release of the tax returns.
The New York officials contend that the federal court in D.C. doesn’t have jurisdiction over them and that the proper venue for the case is New York, not D.C.
In his order, Nichols set a schedule for the New York officials to argue their motion to dismiss. And he ordered the New York officials to not provide the Ways and Means Committee with any requested tax information about Trump until one week after he issues a ruling on their motion.
Nichols also directed the New York officials to notify the court and Trump if Neal requests Trump’s state tax returns during the period of time in which the state can’t provide the returns under the order.
The order is in line with a proposal that New York officials had laid out in a court filing earlier this week. Trump’s lawyers had indicated during Wednesday’s conference that they were OK with the proposal as clarified during the conference. The Ways and Means Committee didn’t take a position.
New York laid out the proposal after Nichols asked the parties in the lawsuit to see if they could reach an agreement about how the case should proceed to ensure that it doesn’t become moot before it is litigated.