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Trump Seeks Supreme Court Intervention in Tax Return Case

Posted on Nov. 1, 2022

Former President Trump has asked the Supreme Court to continue to block Treasury from releasing his tax returns to the House Ways and Means Committee while his legal team finalizes his petition to reverse the D.C Circuit’s decision.

Trump on October 31 filed an emergency application for stay of mandate pending the filing and disposition of a petition for writ of certiorari in Committee on Ways and Means v. Treasury.

“This case raises important questions about the separation of powers that will affect every future President,” the application argues. “The only way to preserve these certiorari-worthy questions and to avoid causing [Trump] irreparable harm is for this Court to grant an administrative stay by Wednesday, November 2, and then to stay the mandate pending the filing and disposition of a petition for writ of certiorari.”

The request comes in the wake of the D.C. Circuit’s rejection of Trump’s motion for rehearing en banc, in which Trump claimed that the court erred in determining that the burden placed on a sitting president by the release of his tax returns wasn’t substantial enough to violate separation of powers. The court held in August that the Ways and Means Committee’s request for the returns served a proper legislative purpose.

Following that decision, the committee asked the court to allow Treasury to immediately hand over Trump’s returns to avoid significant harm to its ability to act on the information. The D.C. Circuit declined the request on October 28.

Despite the court’s denial, Treasury has said it will release the requested information to the taxwriting committee without delay when the mandate issues, currently scheduled for November 3.

According to Trump, the Ways and Means Committee now opposes a stay of any length, including an administrative stay. Treasury opposes a stay pending certiorari but takes no position on an administrative stay.

Trump argued that the stay should continue, asserting that the separation of powers issue makes it likely that the Supreme Court would take on the case and that there is a fair prospect that it would reverse the D.C. Circuit’s decision.

“Without a stay, the Government will fulfill the Committee’s request once the D.C. Circuit’s mandate issues. That threatens [Trump] with irreparable harm on two fronts: the mooting of their legal claims and the disclosure of their confidential information,” the application says.

The Saga Continues

The House battle for Trump’s tax returns has continued for more than three years. Ways and Means Chair Richard E. Neal, D-Mass., requested the returns in April 2019, but then-Treasury Secretary Steven Mnuchin refused to comply with the subpoena, arguing that the request was disingenuous in its purpose.

A new request was filed in June 2021, which alleged that the committee was considering legislative proposals regarding tax laws and wanted to review the effectiveness of the presidential audit program. With a new secretary in Janet Yellen, Treasury said it would comply with the request.

Trump filed cross-claims in August 2021 against the request, arguing that separation of powers still applied and that Congress sought the returns for political reasons. Judge Trevor N. McFadden of the U.S. District Court for the District of Columbia dismissed the cross-claims and counterclaims in December 2021. Trump appealed, and arguments were heard in March. The D.C. Circuit affirmed McFadden’s decision August 9.

In Committee on Ways and Means v. Treasury, No. 21-5289 (D.C. Cir. 2022), Trump is represented by attorneys from Consovoy McCarthy PLLC.

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