Status of congressional court cases this week (Updated)


President Trump’s attorneys on Friday filed an appeal from the ruling of Judge Edgardo Ramos to the U.S. Court of Appeals for the 2nd Circuit. Ramos sided with House Democrats requesting records from Deutsche Bank and Capital One. Trump appeals order siding with House Democrats bank subpoenas.

This is the second appeal of such an order filed this week after a federal judge in D.C. also ruled in favor of a subpoena for Trump’s financial records from the president’s accounting firm, Mazars.

The D.C. Circuit Court of Appeals on Thursday agreed to expedite that appeal, and will hear oral arguments on the matter in mid-July. Judges fast-track court fight over Trump financial records:

In a two-page order, the D.C. Circuit Court of Appeals’ judges scheduled oral arguments for July 12 in the case that pits the president’s attorneys against House Democrats, who issued a subpoena to the accounting firm Mazars USA for eight years of Trump’s financial records.

The court date will come several weeks after a lower court rejected the president’s attempts to block the subpoena[.]

In the next round of legal sparring, Trump will go before a panel of judges that includes another Obama appointee, Patricia Millett, as well David Tatel, a Bill Clinton appointee, and Neomi Rao, who joined the D.C. Circuit in March as a Trump appointee.

Neomi Rao replaced Brett Kavanaugh on the court. During her confirmation hearing in February, she was heavily questioned about some of her college articles about sexual assault, several of which appeared to blame the victims. Neomi Rao is officially Brett Kavanaugh’s replacement on the DC Circuit. She’s faced scrutiny for her writings on sexual assault. Rao repeatedly characterized Brown v. Board of Education as “a really important precedent of the Supreme Court,” but would not say if the case was correctly or incorrectly decided, despite several attempts by Sen. Blumenthal to get a simple yes or no answer. As Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund recently wrote, If judicial nominees don’t support ‘Brown v. Board,’ they don’t support the rule of law. We’ll find out.

Under the order approved Thursday, Trump’s first round of legal briefs spelling out its arguments are due June 10, followed by a response from lawyers for the House committee and Mazars by July 1. A final reply brief from the Trump attorneys is due July 9.

On Thursday, a federal judge in Washington, D.C. heard arguments in the House Democrats’ lawsuit challenging Trump’s “emergency order” to redirect billions in federal funds to build his “big beautiful wall” on the Mexico border. The Justice Department Argues That Congress Can’t Sue The Trump Administration At All:

In defending President Donald Trump’s decision to order billions of dollars in federal funds moved around to pay for a wall along the US–Mexico border, the Justice Department made the sweeping argument Thursday that Congress shouldn’t be able to sue the administration at all.

Appearing before a federal judge in Washington, DC, Justice Department official James Burnham argued the US Constitution simply did not give one branch of government — in this case, the Democrat-controlled House of Representatives — the tools to sue another branch.

The framers of the Constitution “would have been horrified by that prospect,” Burnham said, since it would put the courts above Congress and the executive branch.

It’s an argument that extends far beyond the fight over the border. The Justice Department argued in its brief that lawsuits by Congress to enforce subpoenas to the executive branch were also inconsistent with the Constitution — Burnham cited examples of presidents before the mid–20th century who refused to give information to Congress and weren’t taken to court. But both Republicans and Democrats have argued to the contrary when they’ve gone to court to enforce their subpoenas.

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Douglas Letter, general counsel to the House of Representatives, argued there was clear precedent supporting the role of the courts in stepping in to resolve fights between the other two branches. He argued the Constitution did contemplate one branch suing another when it made clear that the executive branch couldn’t sue Congress over legislative decision-making.

“The Supreme Court is perfectly comfortable telling us, telling the two branches, here’s what the law means,” Letter said.

Letter argued the Founding Fathers would have applauded the House for stepping in to say that the president could not spend money that wasn’t appropriated by Congress, a key tenet of the Constitution. Perhaps with an eye to the inevitable appeals to come, he cited language written by Justice Brett Kavanaugh, formerly a judge on the US Court of Appeals for the DC Circuit, highlighting the importance of Congress’s appropriations power.

Responding to the Justice Department’s argument that Congress had other ways of opposing the executive branch without going to court — for instance, holding hearings or passing legislation explicitly preventing Trump from using funds for this purpose — Letter said Congress did what it was supposed to when it denied the bulk of Trump’s request for billions of dollars for border construction. Trump’s actions amounted to nullifying Congress’s vote, he argued, and members weren’t required to pass a measure saying, “No, we really meant it,” before they could go to court.

“It seems to me that here, we are dealing with something where Congress did act, and one the keys things to remember is the Supreme Court has said many times the executive can’t spend money on its own,” Letter said.

Burnham countered that Trump wasn’t ignoring or nullifying Congress, but rather was invoking another law Congress had passed to give the Department of Defense flexibility in spending its funds. He said there were potentially serious consequences for federal officials to spend money that wasn’t appropriated, and the administration didn’t take that lightly.

If Congress could sue the executive branch when it wasn’t happy with what the administration was doing, that opens the door to other types of interbranch litigation, Burnham argued. He said it was absurd to imagine the judiciary suing another branch for removing its authority, and that same logic should apply to Congress suing the executive branch.

“If you allow them to sue, you move the entire political process into Article III,” Burnham said, referring to the section of the Constitution that established the judicial branch.

As for the merits of the fight over whether Trump could lawfully move billions of dollars from other sources to fund border construction, McFadden asked Letter about the fact that Congress had passed the very processes Trump was invoking now. Letter said it was still an unlawful workaround — that Congress clearly denied funding for the specific item that Trump was trying to pay for using this money.

Letter also argued that the border construction projects didn’t qualify as the kind of “unforeseen” military requirements that fell under the laws cited by the administration — Trump had been talking about wanting to build a wall since he was a candidate. McFadden asked if it was still “unforeseen” as a military project, as opposed to serving a civilian purpose through the Department of Homeland Security. The judge asked if the border was a “gray area” when it came to the role of the military.

Letter said building border walls historically was not a military function, and the military was at the border now supporting Homeland Security. The administration’s proposal to define border construction as a military function was “sufficiently bizarre” that the court could rule on whether it was allowed.

Burnham argued that construction of sections of border wall, or border barriers, wasn’t a monolith — these were individual projects being funded by money that was appropriated by Congress to the Defense Department and now was being appropriately moved around under authority that Congress gave the department. Where Congress wanted to prohibit the use of funds for specific projects along the border, it had done so, he said.

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House Democrats sued the administration in April, arguing Trump’s actions fly in the face of multiple congressional votes denying additional funding for the wall; other lawsuits challenging Trump’s plans are pending in several courts. The House isn’t challenging the lawfulness of Trump’s declaration of a national emergency, but rather the specific use of funds from various sources for border wall construction. They argue the administration’s plan violates the Appropriations Clause and runs afoul of Congress’s authority to decide how federal money is spent.

US District Judge Trevor McFadden, a Trump appointee in 2017, made clear at the beginning of Thursday’s hearing that he had concerns about whether the House had standing to bring the case at all and whether allowing the case to go forward would violate separation of powers principles. He did not say when he would rule.

This doesn’t sound promising. Will this Trump judge support an imperial presidency?

The Justice Department has argued in the past in favor of limiting the role of courts in deciding interbranch disputes. But judges have historically found that there is at least some role for them to play in interpreting the law when these sorts of fights come up.

The incredibly corrupt Attorney General William Barr is having DOJ lawyers argue in court, just like Trump’s personal lawyers in the subpoena cases for his financial records, that Congress has no power of oversight over the president and cannot resort to the courts for a declaratory judgment of the competing powers and privileges of the legislative and executive branches. They are effectively arguing that the president is above the law and cannot be made to comply with the rule of law, or to be held accountable for his actions.

Unless these U.S. attorneys are like-minded ideologues like A.G. Barr pursuing his legally unsupported “unitary executive” theory, they should resign their office rather than fall in line and make these ridiculous arguments they know to be legally infirm. This is not a case in which to say “I am just doing my job.” You took an oath to uphold the Constitution and the rule of law, and that means taking a principled stand, even if it costs your job.

UPDATE: President Trump’s efforts to build a wall along the southwest border hit a roadblock on Friday night when a federal judge in California granted a preliminary injunction that prevents the administration from redirecting funds under the national emergency declaration issued in February. Federal Judge Blocks Part of Trump’s Plan to Build Border Wall:

Judge Haywood Gilliam of the United States District Court for the Northern District of California, who is overseeing a pair of lawsuits over border wall financing, ruled that the administration’s efforts likely overstep the president’s statutory authority.

The injunction applies specifically to some of the money the administration intended to allocate from other agencies, and it limits wall construction projects in El Paso, Tex., and Yuma, Ariz.

The ruling quoted from a Fox News interview with Mick Mulvaney, the acting White House chief of staff, in which he said that the wall “is going to get built, with or without Congress.”

The idea that the president can act “without Congress” when lawmakers refuse a funding request from the White House “does not square with fundamental separation of powers principles dating back to the earliest days of our Republic,” Judge Gilliam wrote.

The two related cases were argued before Judge Gilliam, who was appointed by President Barack Obama, earlier this month — one filed by the State of California in conjunction with 19 other states, and a second from the American Civil Liberties Union on behalf of the Sierra Club and the Southern Border Communities Coalition.

Both suits argued that Mr. Trump had overstepped his constitutional authority by using money to fund a border barrier without congressional approval.