Emergency Application — Donald J. Trump, et al., Applicants v. Committee on Ways and Means, United States House of Representatives, et al.
Supreme Court briefOct 31, 2022
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No. ______
In the Supreme Court of the United States
____________________________________________________
DONALD J. TRUMP; DONALD J. TRUMP REVOCABLE TRUST; DJT HOLDINGS LLC; DJT
HOLDINGS MANAGING MEMBER, LLC; DTTM OPERATIONS LLC; DTTM OPERATIONS
MANAGING MEMBER CORP.; LFB ACQUISITION LLC; LFB ACQUISITION MEMBER CORP.;
LAMINGTON FARM CLUB, LLC,
Applicants,
v.
COMMITTEE ON WAYS AND MEANS, UNITED STATES HOUSE OF REPRESENTATIVES;
UNITED STATES DEPARTMENT OF THE TREASURY; INTERNAL REVENUE SERVICE;
CHARLES PAUL RETTIG, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE INTERNAL
REVENUE SERVICE; JANET L. YELLEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE
UNITED STATES DEPARTMENT OF THE TREASURY,
Respondents.
____________________________________________________________________________
ON APPLICATION FOR STAY
TO THE U.S. COURT OF APPEALS, D.C. CIRCUIT
____________________________________________________________________________
EMERGENCY APPLICATION FOR STAY OF MANDATE
PENDING THE FILING AND DISPOSITION OF
A PETITION FOR WRIT OF CERTIORARI
___________________________________________________________________________
Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
William S. Consovoy
Thomas R. McCarthy
Cameron T. Norris
Counsel of Record
James P. McGlone
Thomas S. Vaseliou
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Suite 700
Arlington, VA 22209
(703) 243-9423
cam@consovoymccarthy.com
Counsel for Applicants
PARTIES TO THE PROCEEDING
Applicants are Donald J. Trump; Donald J. Trump Revocable Trust; DJT
Holdings LLC; DJT Holdings Managing Member, LLC; DTTM Operations LLC;
DTTM Operations Managing Member Corp.; LFB Acquisition LLC; LFB Acquisition
Member Corp.; and Lamington Farm Club, LLC. Applicants were intervenordefendants in the district court and appellants in the court of appeals.
Respondents are the Committee on Ways and Means, United States House of
Representatives; United States Department of the Treasury; Internal Revenue
Service; Charles Paul Rettig, in his official capacity as Commissioner of the Internal
Revenue Service; and Janet L. Yellen, in her official capacity as Secretary of the
United States Department of the Treasury. The Committee was the plaintiff in the
district court and appellee in the court of appeals. The Government respondents were
defendants in the district court and appellees in the court of appeals.
The proceedings below were:
1. Committee on Ways and Means, United States House of Representatives
v. United States Department of the Treasury, No. 21-5289 (D.C. Cir.) –
Judgment entered August 9, 2022. Applicants moved for a stay pending
certiorari on August 18, 2022, which the Court denied on October 27,
2022.
2. Committee on Ways and Means, United States House of Representatives
v. United States Department of the Treasury, No. 19-1974 (D.D.C.) –
Judgment entered December 14, 2021.
There are no other related proceedings.
i
RULE 29.6 STATEMENT
Pursuant to Supreme Court Rule 29.6, Applicants represent that they do not
have any parent entities or publicly-held companies with a 10% or greater ownership
interest in them.
Respectfully submitted,
/s/ Cameron T. Norris
Cameron T. Norris
Counsel of Record
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Suite 700
Arlington, VA 22209
(703) 243-9423
cam@consovoymccarthy.com
Counsel for Applicants
Dated: October 31, 2022
ii
TABLE OF CONTENTS
PARTIES TO THE PROCEEDING .................................................................................. i
RULE 29.6 STATEMENT ................................................................................................ ii
TABLE OF CONTENTS.................................................................................................. iii
TABLE OF AUTHORITIES ............................................................................................ iv
OPINION BELOW ............................................................................................................ 3
JURISDICTION ................................................................................................................ 3
BACKGROUND AND PROCEDURAL HISTORY ........................................................ 4
REASONS FOR GRANTING THE STAY .................................................................... 11
I. This Court is likely to grant the petition for certiorari. .................................... 12
II. There is a fair prospect this Court will reverse the D.C. Circuit’s decision
upholding the Committee’s request. .................................................................. 14
III.Without a stay, Applicants will suffer the mooting of their claims and
loss of confidentiality, the quintessential irreparable harms. ......................... 23
IV. The balance of the equities and public interest also support a stay. .............. 25
CONCLUSION ................................................................................................................ 30
iii
TABLE OF AUTHORITIES
Cases
Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467 (S.D.N.Y. 2019) ..................... 23
Araneta v. United States, 478 U.S. 1301 (1986) ............................................... 23, 24, 28
Barenblatt v. United States, 360 U.S. 109 (1959) ........................................................ 17
Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir. 1997) ........................................ 18
Chafin v. Chafin, 568 U.S. 165 (2013) .......................................................................... 23
Coal. for Responsible Regulation, Inc. v. EPA, 2012 WL 6621785 (D.C. Cir.
2012) ........................................................................................................................... 27
Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909
(D.C. Cir. 2008) .......................................................................................................... 29
Comms. of U.S. House of Rep. v. Trump, 141 S. Ct. 197 (2020) ................................. 26
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) .............................................. 18
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975).............................. 19, 29, 30
Garrison v. Hudson, 468 U.S. 1301 (1984) ................................................................... 23
Graham v. Fulton Cnty. Special Purpose Grand Jury, No. 22A337 (U.S. Oct.
24, 2022) ..................................................................................................................... 11
Hollingsworth v. Perry, 558 U.S. 183 (2010) .......................................................... 11, 14
In re Biaggi, 478 F.2d 489 (2d Cir. 1973)...................................................................... 25
In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998) .............................................................. 29
INS v. Chadha, 462 U.S. 919 (1983) ............................................................................. 14
Jewish War Veterans of the U.S. of Am., Inc. v. Gates, 506 F. Supp. 2d 30
(D.D.C. 2007).............................................................................................................. 18
John Doe Agency v. John Doe Corp., 488 U.S. 1306 (1989)................................... 23, 26
Maness v. Meyers, 419 U.S. 449 (1975) ................................................................... 23, 24
Maryland v. King, 133 S. Ct. 1 (2012) ........................................................................... 26
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) .............................................. 14
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bishop, 839 F. Supp. 68 (D. Me.
1993) ........................................................................................................................... 23
Metro. Life Ins. Co. v. Usery, 426 F. Supp. 150 (D.D.C. 1976) .................................... 24
Mikutaitis v. United States, 478 U.S. 1306 (1986) ....................................................... 23
Morrison v. Olson, 487 U.S. 654 (1988) ........................................................................ 18
iv
Nixon v. Fitzgerald, 457 U.S. 731 (1982) ................................................................ 13, 29
Nixon v. GSA, 433 U.S. 425 (1977) ................................................................................ 10
NTEU v. FLRA, 791 F.2d 183 (D.C. Cir. 1986) ............................................................ 25
Philip Morris USA Inc. v. Scott, 561 U.S. 1301 (2010) .................................... 22, 24, 28
Providence Journal Co. v. FBI, 595 F.2d 889 (1st Cir. 1979)................................ 23, 27
Robert Half Int’l Inc. v. Billingham, 315 F. Supp. 3d 419 (D.D.C. 2018) .................. 24
Rostker v. Goldberg, 448 U.S. 1306 (1980) ................................................................... 25
Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d
725 (D.C. Cir. 1974) ................................................................................................... 27
Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968) ........................................... 17
Trump v. Comm. on Oversight & Reform of U.S. House of Representatives, 380
F. Supp. 3d 76 (D.D.C. 2019) .................................................................................... 24
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ....................................................................... 2
Trump v. Mazars USA, LLP [Mazars II], 940 F.3d 710 (D.C. Cir. 2019) .................. 18
Trump v. Mazars USA, LLP [Mazars V], 39 F.4th 774 (D.C. Cir. 2022) ....... 13, 21, 26
Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020)............................................passim
Trump v. Mazars USA, LLP, 140 S. Ct. 581 (2019) ..................................................... 28
U.S. Servicemen’s Fund v. Eastland, 488 F.2d 1252 (D.C. Cir. 1973) ....................... 28
United States ex rel. Chandler v. Cook Cnty., 282 F.3d 448 (7th Cir. 2002) ............. 25
United States v. AT&T Co., 567 F.2d 121 (D.C. Cir. 1977) ......................................... 29
United States v. Nixon, 418 U.S. 683 (1974)................................................................. 28
United States v. Rumely, 345 U.S. 41 (1953) ................................................................ 19
Ward v. Thompson, No. 22A350 (U.S. Oct. 26, 2022) .................................................. 11
Watkins v. United States, 354 U.S. 178 (1957)................................................. 15, 16, 17
Wilkinson v. United States, 365 U.S. 399 (1961).......................................................... 17
Statutes
26 U.S.C. §6103 ............................................................................................................. 5, 6
28 U.S.C. §1254 ................................................................................................................. 3
28 U.S.C. §1257 ............................................................................................................... 23
28 U.S.C. §2101 ................................................................................................................. 3
Other Authorities
v
Hearings on S. 2170 et al. before the Subcommittee on Intergovernmental
Relations of the Senate Committee on Government Operations, 94th Cong.,
1st Sess. (1975) (A. Scalia, Assistant Attorney General, Office of Legal
Counsel) ...................................................................................................................... 15
Office of Legal Counsel, Congressional Committee’s Request for the President’s
Tax Returns Under 26 U.S.C. §6103(f) (June 13, 2019)................................. 7, 8, 17
Rules
Fed. R. App. 41 .................................................................................................................. 3
S. Ct. R. 10 ................................................................................................................. 12, 23
vi
TO THE HONORABLE JOHN G. ROBERTS, JR., CHIEF JUSTICE OF THE UNITED STATES AND
CIRCUIT JUSTICE FOR THE D.C. CIRCUIT:
This case raises important questions about the separation of powers that will
affect every future President. The only way to preserve these certiorari-worthy
questions and to avoid causing Applicants irreparable harm is for this Court to grant
an administrative stay by Wednesday, November 2, and then to stay the issuance of
the mandate pending the filing and disposition of a petition for writ of certiorari. If
the Court wishes, it could alternatively construe this application as a petition for
certiorari and grant review.
The House Committee on Ways & Means, through its chairman, Rep. Richard
Neal, has requested from the IRS six years of tax returns and related files for
President Trump and eight of his business entities. As justification for seeking these
papers—and these papers alone—the Committee has offered only an interest in
studying the staffing and funding of the IRS’s audit process for Presidents and Vice
Presidents. This case is about whether that bare statement alone—as a matter of law,
and even in the face of extensive evidence of pretext—satisfies the test this Court
announced in Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).
The Committee’s purpose in requesting President Trump’s tax returns has
nothing to do with funding or staffing issues at the IRS and everything to do with
releasing the President’s tax information to the public. Business entities aren’t even
subject to the program of the Committee’s professed concern, nor were the requested
individual returns from years outside President Trump’s tenure in office. And
although every President and Vice President since 1977 has been subject to the
1
Presidential Audit Program, see App.3, the Committee sought records related to a
single individual. On top of this objective mismatch, Chairman Neal and Speaker
Pelosi’s on-the-record statements, as well as statements by other officials involved in
making the request, evince quite a different purpose: exposing President Trump’s tax
information to the public for the sake of exposure.
A panel of the D.C. Circuit, however, held that all evidence of pretext—which
the district court called “impressive” and “troubling”—is insulated from review. The
panel concluded that the bare statement of purpose on the face of the request satisfies
the test announced in Mazars, despite extensive evidence that this stated purpose
was only a pretext. This error will hamstring the President in disputes over any
future demands for information. If allowed to stand, it will undermine the separation
of powers and render the office of the Presidency vulnerable to invasive information
demands from political opponents in the legislative branch. Review is of the utmost
importance, and the Court should preserve its ability to grant it—not just for one
“particular President,” but also for “the Presidency itself.” Trump v. Hawaii, 138 S.
Ct. 2392, 2418 (2018).
The Court will only have the chance to consider granting review if it stays the
mandate of the D.C. Circuit. The Government has said it will release the requested
information to the Committee without delay when the mandate issues, currently
scheduled for Thursday, November 3. Applicants sought a stay below, while the
Committee sought immediate issuance of the mandate to moot the case on the spot.
The court of appeals denied both motions. The Committee now opposes a stay of any
2
length, including an administrative stay. The Government opposes a stay pending
certiorari but takes no position on an administrative stay.
OPINION BELOW
The district court’s opinion is reported at 575 F. Supp. 3d 53, and it is
reproduced at Appendix (“App.”) 37-81. The D.C. Circuit’s opinion was entered on
August 9, 2022. It is reproduced at App.1-33 and is reported at 45 F.4th 324. The D.C.
Circuit’s order denying rehearing en banc is available at 2022 WL 15524456, and it
is reproduced at App.36.
JURISDICTION
The D.C. Circuit issued its opinion on August 9, 2022. On August 11, 2022, the
Committee moved for immediate issuance of the mandate and for expedited
treatment of the motion. On August 18, 2022, Applicants filed a timely petition for
rehearing and rehearing en banc. That same day, Applicants also moved the D.C.
Circuit to stay its mandate pending the filing and disposition of a petition for writ of
certiorari. On October 27, 2022, the D.C. Circuit denied Applicants’ motion to stay
the mandate and the Committee’s motion to expedite the mandate. App.35. It also
denied Applicants’ petition for rehearing en banc. App.36. Without a stay from this
Court, the mandate will issue on November 3, 2022. See Fed. R. App. 41(b). The Court
has jurisdiction to stay issuance of the D.C. Circuit’s mandate pending the filing and
disposition of a petition for writ of certiorari. See 28 U.S.C. §2101(f). The Court has
jurisdiction for a writ of certiorari under 28 U.S.C. §1254(1).
3
BACKGROUND AND PROCEDURAL HISTORY
Democrats made a national issue out of President Trump’s tax returns in the
2016 election. And for the two years before he became Chairman of the Ways & Means
Committee, then-Ranking Member Neal sought to expose President Trump’s tax
returns to the public, without offering any legislative purpose. To the contrary, he
openly stated that he wanted to disclose the tax returns to enable “the media to sift
and sort” them and so the public could see “whether he uses tax shelters, loopholes,
or other special-interest provisions to his advantage.” App.102-03 ¶¶37-41. In a
published report, Neal wrote that “the public” needed to see President Trump’s
returns to get “the clearest picture of ... how much he earns, how much tax he pays,
his sources of income ... , whether he makes charitable contributions, and whether he
uses tax shelters, loopholes, or other special-interest provisions.” App.103 ¶41.
Minority Leader Pelosi called it “one of the first things” the Democratic majority
would do, and Neal affirmed that Democrats would “force” disclosure, adding that
“Democrats ha[d] voted again and again to release those documents.” App.109 ¶¶7576 (emphasis added).
After Democrats took control of the House in 2019, Chairman Neal did not
disavow his stated purpose. But he warned his Democratic colleagues not to “step on
[their] tongue[s]” to avoid undermining their case. App.111 ¶88. At the same time,
Speaker Pelosi—who approved Chairman Neal’s ultimate request—said, “I think
overwhelmingly the public wants to see the President’s tax returns.... They want to
know the truth, they want to know the facts and that he has nothing to hide.” App.110
¶81. Speaker Pelosi’s spokeswoman later told the press that “all roads le[d] back” to
4
President Trump’s tax returns, which would show his “improprieties,” “potential tax
evasion,” and “violations of the Constitution.” App.113 ¶96.
In April 2019, Chairman Neal formally requested the tax returns of President
Trump and eight Trump business entities, along with audit information and IRS
administrative files, for tax years 2013 to 2018. See 26 U.S.C. §6103(f); App.118 ¶123.
Chairman Neal claimed he needed these materials to study “the extent to which the
IRS audits and enforces the Federal tax laws against a President” under the
“mandatory examination” process specified in the “Internal Revenue Manual.”
App.118-19 ¶124. But Committee-Member Rep. Pascrell explained that Neal’s
rationale was “chosen according to counsel” as “the best way” to “make sure we got
the tax returns.” App.120 ¶130. And Chairman Neal himself elsewhere acknowledged
that he had strategically “constructed” the best possible “case” to “stand[] up” in court.
App.119 ¶¶127-28. Indeed, in three years of demanding disclosure of President
Trump’s tax returns up to that point, he had never once offered the IRS’s mandatory
audit process as a rationale. App.120 ¶131.
As a supposed attempt to study the presidential audit program, the
Committee’s request was far off target. President Trump was not subject to that
program for half of the tax years in the initial request, and none of the business
entities in the request ever have been. The request also purported to study a program
that has covered every President and Vice President since 1977 by requesting
information related to a single individual. It called for files from audits that were still
5
ongoing. And it called for the underlying tax-return information, which has no
relevance to a legislative study of the auditing process. App.137 ¶218.
Meanwhile, Committee members, including Chairman Neal, repeatedly
contradicted their request’s stated purpose even after it was announced. They
continued to describe the request’s purpose in terms of exposing President Trump’s
tax information to “the public,” App.123-30 ¶¶143-87, but a proper request would only
allow the Committee to review the information while “sitting in closed executive
session,” 26 U.S.C. §6103(f). To the extent they discussed the IRS’s audit process,
they did so in law-enforcement terms, expressing their desire to audit President
Trump’s returns themselves and to uncover evidence of illegal conduct. For example,
in a press release issued on the same day as the request, Chairman Neal said that
the request would help the Committee determine whether President Trump is
“complying with” the tax laws. App.123 ¶143. And throughout 2019 and 2020, Rep.
Pascrell and other Committee Members continued to say that the Committee needed
to see Trump’s tax information to see “how far his crimes go” and otherwise expose
his tax information to the American public. App.124-30 ¶¶147-187.
The Committee’s improper purpose was not lost on the Executive Branch.
Treasury rejected the Committee’s request as having illegitimate purposes in May
2019. It noted that the request was “the culmination of a long-running, welldocumented effort to expose the President’s tax returns for the sake of exposure.”
App.137
¶217.
Treasury
highlighted
the
“widespread,
contemporaneous
acknowledgement by the Committee Chairman and other key Members that the
6
actual objective is to use the IRS as a means to expose the tax returns of a political
opponent.” Id. Collecting over forty pages of public statements, Treasury told
Chairman Neal that his stated purpose was “at odds with what you and many others
have repeatedly said is the request’s intent: to publicly release the President’s tax
returns.” App.137 ¶217.
Treasury also highlighted the “objective” mismatch between the Committee’s
audit rationale and “the terms of [its] request,” including request for files from
ongoing audits and the focus on a single President even though most of the requested
categories of information have “never been publicly released with respect to any
President.” App.137 ¶218. Treasury further noted that the request “does not inquire
about the IRS’s procedures for presidential audits,” ask for “additional information
about those policies,” ask “whether [they] have changed over time,” or ask about “the
extensive protections that ensure such audits are conducted with extreme
confidentiality and without improper interference.” Id. Accordingly, Treasury
determined it was not authorized to fulfill the Committee’s request.
The Department of Justice reached the same conclusion. In a June 2019
memorandum, the Office of Legal Counsel concluded that the request “represents the
culmination of a sustained effort over more than two years to seek the public release
of President Trump’s tax returns.” Office of Legal Counsel, Congressional
Committee’s Request for the President’s Tax Returns Under 26 U.S.C. §6103(f), at 7
(June 13, 2019) (hereinafter “OLC 2019”). OLC found that the Committee’s stated
purpose “blinks reality. It is pretextual. No one could reasonably believe that the
7
Committee seeks six years” of a single President’s “tax returns because of a newly
discovered interest in legislating on the presidential-audit process.” Id. at 16. It
further noted that “throughout 2017 and 2018, Chairman Neal and other Members
of Congress ... offered many different justifications for such an action,” but never
“oversight of ‘the extent to which the IRS audits and enforces the Federal tax laws
against a President.’” Id. at 11. Instead, they had “made clear their intent to acquire
and release the President’s tax returns.” Id. OLC thus concluded that the
Committee’s purpose was not what Chairman Neal wrote in his request. See App.138
¶¶219-20. OLC further agreed with Treasury that “the Committee’s request does not
objectively ‘fit’ [its] stated purpose.” App.189 ¶221; OLC 2019 at 27. “[M]any of the
requested documents are barely relevant” to the audit process, including the tax
returns themselves, which are filed before that process begins. App.189 ¶221; OLC
2019 at 27. Instead, OLC found the request “‘perfectly tailored’ to accomplish the
Committee’s long-standing and avowed goal” of exposing the President’s tax returns.
App.190 ¶222; OLC 2019 at 29.
In July 2019, the Committee sued Treasury and other governmental
defendants to enforce its request, and Applicants intervened in the case as
defendants. App.193-94. The case was stayed pending the resolution of Committee on
Judiciary of United States House of Representatives v. McGahn, No. 19-5331 (D.C.
Cir.), and remained stayed for six months after President Biden took office while the
new administration considered how to respond to the request. App.201, 204-05.
8
In July 2021, the Government reversed course. It informed the district court
(and Applicants) that Chairman Neal had updated his request for President Trump’s
tax returns six weeks earlier—pursuing the same information for tax years 2015 and
2020, instead of 2013 to 2018—and that the Government now intended to comply.
D.D.C. Doc. 111. The Government then revealed a new OLC opinion, contradicting
its 2019 opinion. App.147 ¶264. The new 2021 opinion did not deny the Committee’s
long campaign to expose President Trump’s tax returns to the public or retract its
previous conclusions about the Committee’s true purpose; instead, it simply
concluded that despite all the evidence, Treasury had to accept the Committee’s
stated purpose at face value. App.157 ¶267. Perhaps thinking the case was over,
Speaker Pelosi candidly celebrated the Government’s reversal—not because the
House could now study the presidential audit program, but instead “[t]he American
people” would now “know the facts” about President Trump. App.149 ¶270.
Applicants immediately answered the Committee’s original complaint and filed
counterclaims and crossclaims against the Committee and Government challenging
the lawfulness of the request. App.208. The Committee and Government moved to
dismiss Applicants’ claims.
In its ruling, the district court recounted Chairman Neal’s statements related
to the request and concluded that they “are relevant” and “undermine the alleged
purpose of studying [legislation].” App.54-55. It found the evidence of an improper
purpose both “impressive” and “[t]roubling.” App.56. Given the 12(b)(6) posture,
Applicants’ allegations of an invalid purpose thus should have survived the motions
9
to dismiss. The district court, however, dismissed all of Applicants’ claims. The
district court declined to apply this Court’s test from Mazars and instead evaluated
the request under the deferential standard of Nixon v. GSA, 433 U.S. 425 (1977). The
court thus concluded that the Committee “need only state a valid legislative purpose.”
App.56 (emphasis added).
A panel of the D.C. Circuit affirmed. Unlike the district court, the panel
purported to apply the Mazars test, not Nixon v. GSA. Nevertheless, it agreed with
the district court that it was required to ignore all of Applicants’ allegations
establishing an invalid purpose, and instead could only consider the purposes
Congress identified in the request itself. App.10. With this highly deferential review,
the panel accepted the Committee’s “need” for the requested information without
regard for other potential sources. Rather than enforce Mazars’s demand that a
request be “no broader than reasonably necessary to support Congress’s legislative
objective,” 140 S. Ct. at 2036, the panel did not analyze the Request’s sprawling
breadth—six years of returns and audit files, including business returns which are
not subject to the Presidential Audit Program, without even limited guarantees of
confidentiality—in relation to its purpose. Instead of demanding “detailed and
substantial” evidence of the Request’s purpose, id., the Court ignored Applicants’
substantial evidence of pretext. Finally, when assessing the “burdens” imposed by the
Request, id., the panel held—at the 12(b)(6) stage—that Request was only tolerably
“inconvenient” to President Trump and a “possible” but “not substantial” threat to
10
ongoing relations between the political branches, App.24.1 The panel thus reduced
Mazars’s scrutiny of legislative purpose to a magic-words test—approving the request
so long as the Committee mouthed some permissible justification.
REASONS FOR GRANTING THE STAY
“To obtain a stay pending the filing and disposition of a petition for a writ of
certiorari, an applicant must show (1) a reasonable probability that four Justices will
consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that
a majority of the Court will vote to reverse the judgment below; and (3) a likelihood
that irreparable harm will result from the denial of a stay. In close cases the Circuit
Justice or the Court will balance the equities and weigh the relative harms to the
applicant and to the respondent.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010)
. Applicants meet this test.
To preserve its ability to review this case, the Court should enter an
administrative stay pending the disposition of this emergency application. See, e.g.,
Graham v. Fulton Cnty. Special Purpose Grand Jury, No. 22A337 (U.S. Oct. 24, 2022)
(Thomas, J., in chambers) (granting administrative stay); Ward v. Thompson, No.
22A350 (U.S. Oct. 26, 2022) (Kagan, J., in chambers) (same). Without interim relief,
the D.C. Circuit’s mandate will issue on Thursday, November 3, upon which the
1 Judge Henderson concurred in part and, as relevant here, concurred in the judgment
only. She “conclude[d] that the burdens borne by the Executive Branch are more
severe and warrant much closer scrutiny” than the majority provided. App.29.
Although Judge Henderson apparently concluded that the Committee’s request does
not threaten the separation of powers, her separate opinion—which correctly
criticizes the panel for watering down the Mazars test—never actually applies the
Mazars test itself or explains why the request satisfies it.
11
Government will fulfill the Committee’s request and deprive this Court of the
opportunity to rule even on this emergency application. Having entered an
administrative stay to consider this application, the Court should then grant a stay
pending the filing and disposition of a petition for writ of certiorari.
In addition, the Court may wish to construe this Application as a petition for
writ of certiorari as to the question: whether, under the standard of Trump v. Mazars
USA, LLP, 140 S. Ct. 2019 (2020), courts must defer to the legislative purpose on the
face of a congressional request for a President’s personal information, even when all
the evidence suggests that purpose is pretextual. Cf. Nken v. Mukasey, 555 U.S. 1042
(2008).
I.
This Court is likely to grant the petition for certiorari.
The petition will present “an important question of federal law that has not
been, but should be, settled by the Court.” S. Ct. R. 10(c). At the very least, it will
present important questions that are substantial enough that the Court should
preserve for itself a shot at considering further review. The court of appeals seems to
agree. See App.14 (stressing “the possibility of further appellate review”).
As further testament to this case’s importance, this Court has already agreed
to review a similar case once before. Like Mazars, this case arises from a
congressional demand for a President’s personal information—a “clash between rival
branches of government over records of intense political interest for all involved.”
Mazars, 140 S. Ct. at 2034. It therefore “implicate[s] weighty concerns regarding the
separation of powers.” Id. at 2035.
12
Moreover, the legal issues in this case are unsettled and in need of this Court’s
review. Until Mazars, this Court had “never addressed a congressional subpoena for
the President’s information.” Id. at 2026. The Court further noted at the end of its
analysis that “one case every two centuries does not afford enough experience for an
exhaustive” treatment of this area of law. Id. at 2036. So it is unsurprising that even
after the Mazars decision, cases involving similar demands still “implicate[] a number
of difficult questions of first impression.” Trump v. Mazars USA, LLP [Mazars V], 39
F.4th 774, 812 (D.C. Cir. 2022) (Rogers, J., concurring).
No Congress has ever wielded its legislative powers to demand a President’s
tax returns. As the district court put it, “[w]e are in uncharted territory.” App.40. The
parties all agree that the Committee’s request implicates the separation of powers at
some level, and the United States once agreed that the request is unconstitutional.
App.13-14. Even now, the Government appears to agree that this case “implicate[s]
important institutional principles” of “importance to the Executive Branch,” and
presents “novel and complex questions about the privileges and authority of all three
branches of the federal government.” D.D.C. Doc. 134, at 2 ¶¶4-5.
Left unreviewed, the D.C. Circuit’s decision will have far-reaching
implications. It will establish important (but incorrect) precedent for the political
branches moving forward, binding in the circuit in which most conflicts over
congressional demands for information must be litigated. Even more so because the
court of appeals applied the full-blown Mazars test, which means its analysis will also
control future disputes between Congress and sitting Presidents. Simply put, this
13
Court should be the one setting precedent to guide those disputes. On top of these
reasons for granting certiorari, the Supreme Court also gives “special solicitude” to
former Presidents bringing “claims alleging a threatened breach of essential
Presidential prerogatives under the separation of powers.” Nixon v. Fitzgerald, 457
U.S. 731, 743 (1982). In short, Applicants’ petition will have at least a “reasonable
probability” of convincing the Court to grant certiorari again. Hollingsworth, 558 U.S.
at 190.
II.
There is a fair prospect this Court will reverse the D.C. Circuit’s
decision upholding the Committee’s request.
The D.C. Circuit’s decision misapplies this Court’s decision in Mazars. Rather
than balancing the important institutional interests of the political branches, it
afforded the Committee broad deference. Though it purported to apply Mazars with
full force, it effectively treated the request like “a run-of-the-mill legislative effort”
instead of “a clash between rival branches of government over records of intense
political interest for all involved.” Mazars, 140 S. Ct. at 2034. This Court would likely
reverse.
A. This Court’s Mazars decision struck a “balanced approach” to disputes over
legislative demands for a President’s information. Id. at 2035. The Court recognized
both political branches’ significant interests at stake in such disputes. Id. at 2033-34.
It therefore “‘resist[ed]’ the ‘pressure inherent within each of the separate Branches
to exceed the outer limits of its power.’” Id. at 2035 (quoting INS v. Chadha, 462 U.S.
919, 951 (1983)).
14
It also took “a ‘considerable impression’ from ‘the practice of the government,’”
id. (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819)), and sought
to avoid “needlessly disturb[ing] ‘the compromises and working arrangements that
[those] branches ... themselves have reached,’” id. at 2031. The Court feared that a
“limitless subpoena power would transform the ‘established practice’ of the political
branches.” Id. at 2034. It would mean that “[i]nstead of negotiating over information
requests, Congress could simply walk away from the bargaining table and compel
compliance in court.” Id. But with a balanced approach, similar disputes in the future
might be resolved—as they usually have been historically—not in court but through
negotiation, “in the ‘hurly-burly, the give-and-take of the political process between
the legislative and the executive.’” Id. at 2029 (quoting Hearings on S. 2170 et al.
before the Subcommittee on Intergovernmental Relations of the Senate Committee
on Government Operations, 94th Cong., 1st Sess., 87 (1975) (A. Scalia, Assistant
Attorney General, Office of Legal Counsel)).
With these considerations in mind, the Court crafted a “careful analysis that
takes adequate account of the separation of powers principles at stake, including both
the significant legislative interests of Congress and the ‘unique position’ of the
President.” Id. at 2035. This analysis is built on the foundation of the standard
assessment of “whether a subpoena ... is ‘related to, and in furtherance of, a legitimate
task of the Congress.’” Id. (citing Watkins v. United States, 354 U.S. 178, 187 (1957)).
But it further relies on “[s]everal special considerations” to inform the analysis. Id.
“First, courts should carefully assess whether the asserted legislative purpose
15
warrants the significant step of involving the President and his papers,” and
particularly whether “other sources could reasonably provide Congress the
information it needs in light of its particular legislative objective.” Id. at 2035-36.
Second, “courts should insist on a subpoena no broader than reasonably necessary to
support Congress’s legislative objective.” Id. at 2036. Third, courts should require
Congress to offer sufficiently “detailed and substantial evidence” of its legislative
purpose—“particularly ... when Congress contemplates legislation that raises
sensitive constitutional issues, such as legislation concerning the Presidency.” Id.
Finally, “courts should be careful to assess the burdens imposed on the President by
a subpoena.” Id.
B. The court of appeals (correctly) assumed that Mazars applies here, and it
purported to apply that framework with full force. App.14, 18. But it departed sharply
from Mazars in application, diluting the analysis at every step. Indeed, the court’s
Mazars analysis repeatedly relied on cases outside the separation-of-powers context,
which Mazars said “differ markedly” from information requests “directed at the
President.” 140 S. Ct. at 2034. This Court would likely reverse the decision for failing
to “take[] adequate account of the separation of powers principles at stake.” Id. at
2035.
First, on the foundational question of whether the Committee’s request is
“related to, and in furtherance of, a legitimate task of Congress,” the court of appeals
held that all of Applicants’ allegations of improper purpose were legally irrelevant,
as mere evidence of legislators’ subjective “motives.” App.13. That approach violates
16
precedent, including Mazars itself. It reduces Mazars to a magic-words test, where
any request or subpoena will automatically be deemed constitutional so long as the
Committee is not so foolish as to avow its improper purpose on the face of the request.
All agree that congressional requests for information must have a legitimate
legislative purpose. Mazars, 140 S. Ct. at 2031. Congress cannot make demands for
information to “expose for the sake of exposure.” Id. at 2032 (quoting Watkins, 354
U.S. at 200). Applicants plausibly alleged that the Committee’s purpose here was
exposure, not studying legislation. They described the objective mismatch between
the request and its stated purpose, the long campaign to obtain President Trump’s
tax returns, myriad statements from key decisionmakers admitting nonlegislative
purposes, numerous admissions from the Chairman that his stated purpose was
pretextual, the shifting explanations for the request, and the conclusions of inside
and outside observers—including the United States itself—that “the Committee’s
stated purpose was pretextual and its actual purpose was simply to provide a means
for public disclosure of the President’s tax returns.” OLC 2019 at 31.
Nevertheless, the court of appeals reasoned that so long as the face of the
request “identified a legitimate legislative purpose that it requires information to
accomplish,” it could not “delve deeper than this.” App.13. To consider the extensive
evidence of nonlegislative purpose, the court reasoned, would inappropriately “probe
the motives of individual legislators.” Id. To the contrary, there is a long record of
courts going beyond the face of a congressional request to determine its purpose.
Courts have always “scrutinized [the] record”—not just “the Committee’s report,” but
17
“the entire record.” Barenblatt v. United States, 360 U.S. 109, 133 & n.33 (1959); see
also Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968) (instructing courts
to consider “several sources,” including statements of committee members and staff);
Wilkinson v. United States, 365 U.S. 399, 410 (1961) (consulting “[a] number of ...
sources,” including statements of committee chair and staff).
Applicants’ allegations demonstrated the purpose of the request, not merely
some legislators’ motives, and longstanding precedent delineates an important
distinction between the two. E.g., Watkins, 354 U.S. at 200. Motive is “why an
individual Member sponsored or supported” an action, while purpose is “what that
[action] was designed to accomplish.” Jewish War Veterans of the U.S. of Am., Inc. v.
Gates, 506 F. Supp. 2d 30, 60 (D.D.C. 2007). To gauge purpose, courts “must focus …
on objectively discernible conduct or communication that is temporally connected to
the challenged activity.” Bauchman v. W. High Sch., 132 F.3d 542, 560 (10th Cir.
1997); see also Trump v. Mazars USA, LLP [Mazars II], 940 F.3d 710, 767-71 (D.C.
Cir. 2019) (Rao, J., dissenting). This is a familiar judicial task: courts must often
“scrutinize[]” a branch of government’s “reasons” by examining “the record” and
“viewing the evidence as a whole.” Dep’t of Commerce v. New York, 139 S. Ct. 2551,
2575-76 (2019). But the logic of the court of appeals means that absent a chairman
foolishly stating an illegal purpose (and only an illegal purpose) in the request itself,
or else offering no purpose at all, no allegations of improper purpose can ever defeat
a request. The court of appeals was wrong to “blind” itself to “what all others can see
and understand.” Mazars, 140 S. Ct. at 2034 (cleaned up).
18
The court’s refusal to consider any evidence beyond Committee’s own carefully
constructed statement is especially inappropriate in separation-of-powers cases like
this one. The court agreed that this case should be treated as a dispute between
Congress and the Executive. See App.14. In such cases, deferential presumptions
have no place. See Morrison v. Olson, 487 U.S. 654, 704-05 (1988) (Scalia, J.,
dissenting). Indeed, this Court in Mazars chided the lower courts for “applying
precedents that do not involve the President’s papers,” 140 S. Ct. at 2033—including
the very cases that the panel used here to ignore the extensive record undermining
the Committee’s asserted purpose. Compare, e.g., Mazars, 140 S. Ct. at 2034
(distinguishing Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975)), with
App.10 (relying on Eastland). This Court would likely reverse that error.
Second, the lower court misapplied each of the “special considerations”
identified in Mazars. Most glaringly, the court did not “insist on a [request] no
broader than reasonably necessary to support Congress’s legislative objective.”
Mazars, 140 S. Ct. at 2036. On this point, the panel blessed a sweeping request for
six years of data because “[t]he Chairman has stated that the value of requesting six
years of information is the ability to compare one year with another.” App.21. That
level of deference befits an ordinary legislative inquiry, not one with serious
separation-of-powers implications. Tellingly, the court’s analysis here again cited
precedent without any separation-of-powers implications, for the Committee’s right
to “go up some ‘blind alleys’ and into nonproductive enterprises.” Id. (quoting
Eastland, 421 U.S. at 509) (internal quotation marks omitted). The court also rejected
19
the possibility of narrowing the request with a guarantee of confidentiality, even
though Mazars itself recognized that solution in earlier interbranch clashes. 140 S.
Ct. at 2030. Here, too, the court resorted to caselaw outside the separation-of-powers
context, contrary to Mazars. App.21 (citing United States v. Rumely, 345 U.S. 41, 43
(1953)). Finally, the request was broader than necessary by targeting eight business
entities related to President Trump, even though the Presidential Audit Program
covers only individual returns. The lower court passed over the obvious overbreadth
concerns without a mention.
The court also failed to “carefully assess whether the asserted legislative
purpose warrants the significant step of involving the President and his papers” and
to reject the request if “other sources could provide Congress the information it
needs.” Mazars, 140 S. Ct. at 2035-36. Here, other sources—indeed, better sources—
are available to study whether the IRS’s Presidential Audit Program “is adequately
resourced and sufficiently guarded from external pressures.” App.19. For one, the
Committee has never considered seeking other Presidents’ or Vice Presidents’
returns—even though they were all subject to the same program. The lower court
rejected this possibility because it would still “require ... the personal information of
a former President,” id., but such a request would implicate lesser privacy interests
for those who previously publicly released their returns. Moreover, a good-faith
request for legislative study of a program’s funding would seek information from the
IRS about budgeting, staffing, and testimony from personnel about any “external
pressure”—not six years of detailed individual returns and audits for a single person
20
and his businesses. Although the Committee claimed that prior talks with the IRS
had failed, it did not renew those efforts under the Biden Administration before
issuing its amended request in 2021. The decision below did not address whether
Congress could obtain relevant information from other sources. Its silence is
inconsistent with Mazars’s heightened scrutiny.
Mazars also requires courts to “be attentive to the nature of the evidence
offered by Congress to establish that a [request] advances a valid legislative purpose.”
140 S. Ct. at 2036. The court of appeals found this factor satisfied by a handful of
brief statements by President Trump about the audit process. This is hardly the sort
of “detailed and substantial” evidence this Court demanded from Congress, especially
when the Committee claims to be studying “legislation concerning the Presidency.”
Id. At the same time, the lower court refused to consider any of Applicants’ allegations
(and supporting evidence) of improper purpose. The whole point of Mazars is to
impose extra scrutiny of Congress’s asserted purpose. Here again, the lower court
failed to do so.
Lastly, the panel failed to “careful[ly] ... assess the burdens imposed on the
President” by the request. Id. Mazars recognized in this section of the opinion that
institutional dynamics matter, and that congressional requests “stem from a rival
political branch that has an ongoing relationship with the President and incentives
to use subpoenas for institutional advantage.” Id. Those incentives do not disappear
when a former President is targeted. See, e.g., Mazars V, 39 F.4th at 787. But the
court of appeals dismissed these concerns, reasoning that “[w]hile it possible that
21
Congress may attempt to threaten the sitting President with an invasive request
after leaving office, every President takes office knowing that he will be subject to the
same laws as all other citizens upon leaving office.” App.24. That reasoning again
treats this request like “a run-of-the-mill legislative effort,” Mazars, 140 S. Ct. at
2034, instead of one that arose when the President was in office. It serves as a
warning to all future Presidents that they may be subject to such legislative threats.
Applicants plausibly alleged that the burden of these requests threatens the
relationship between Congress and the President. This Court would likely recognize
that danger and reverse the judgment of the court of appeals.
*
*
*
The lower court’s deferential scrutiny undermines the balance struck in
Mazars. Effectively, the court adopted the approach proposed by the House and
rejected by this Court in Mazars, blessing a request as long as it “relate[s] to a valid
legislative purpose” or “concern[s] a subject on which legislation could be had.” Id. at
2033. This rule promises to disrupt the historical relationship between the political
branches, send more interbranch disputes to court, and leave Presidents—including
sitting Presidents—exposed to harassing demands from political opponents in the
legislature. Id. at 2034. “[A] more searching inquiry into the burdens imposed by the
Committee’s request is warranted given the core constitutional principle at issue.”
App.33 (Henderson, J., concurring in the judgment). This Court would likely agree
and reverse the judgment of the D.C. Circuit.
22
III.
Without a stay, Applicants will suffer the mooting of their claims and
loss of confidentiality, the quintessential irreparable harms.
There is a clear “likelihood of irreparable harm if the judgment is not stayed.”
Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 1302 (2010) (Scalia, J., in chambers).
Without a stay, the Government will fulfill the Committee’s request once the D.C.
Circuit’s mandate issues. That threatens Applicants with irreparable harm on two
fronts: the mooting of their legal claims and the disclosure of their confidential
information.
First, without a stay, this case will be mooted. Without a stay, Applicants’ legal
right to pursue their claims and petition for certiorari will be irrevocably destroyed.
See 28 U.S.C. §1257; S. Ct. R. 10. Certiorari is part of “‘the normal course of appellate
review,’” and “foreclosure of certiorari review by this Court would impose irreparable
harm.” Garrison v. Hudson, 468 U.S. 1301, 1302 (1984) (Burger, C.J., in chambers);
accord Mikutaitis v. United States, 478 U.S. 1306, 1309 (1986) (Stevens, J., in
chambers); see also Chafin v. Chafin, 568 U.S. 165, 178 (2013) (“If these cases were
to become moot upon return, courts would be more likely to grant stays as a matter
of course, to prevent the loss of any right to appeal.”). “The fact that disclosure would
moot th[e] part of the Court of Appeals’ decision requiring disclosure ... would also
create an irreparable injury.” John Doe Agency v. John Doe Corp., 488 U.S. 1306,
1309 (1989) (Marshall, J., in chambers). Preventing mootness is “‘[p]erhaps the most
compelling justification’” for a stay pending certiorari. Id.
Second, and apart from mootness, the “disclosure of private, confidential
information ‘is the quintessential type of irreparable harm that cannot be
23
compensated or undone by money damages.’” Airbnb, Inc. v. City of New York, 373 F.
Supp. 3d 467, 499 (S.D.N.Y. 2019); accord Maness v. Meyers, 419 U.S. 449, 460 (1975);
Araneta v. United States, 478 U.S. 1301, 1304-05 (1986) (Burger, C.J., in chambers);
Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979). Loss of
confidentiality is “[c]learly ... irreparable” because “[t]here is no way to recapture and
remove from the knowledge of others information improperly disclosed.” Merrill
Lynch, Pierce, Fenner & Smith, Inc. v. Bishop, 839 F. Supp. 68, 72 (D. Me. 1993); see
also Robert Half Int’l Inc. v. Billingham, 315 F. Supp. 3d 419, 433 (D.D.C. 2018)
(“[T]he disclosure of confidential information is, by its very nature, irreparable
‘because such information, once disclosed, loses its confidential nature.’”); Metro. Life
Ins. Co. v. Usery, 426 F. Supp. 150, 172 (D.D.C. 1976). The Committee’s counsel has
conceded as much in a similar case. See Trump v. Deutsche Bank, AG, CA2 Doc. 37
at 105:24-25, No. 19-1540 (2d Cir.) (Mr. Letter: “Obviously I concede that if the
documents are out, it is then irreparable.”). This alone establishes irreparable harm
warranting a stay.
This irreparable harm to Applicants will be immediate. Even if Defendants
disclose only to the Committee, disclosure to the government is itself an irreparable
harm. E.g., Maness, 419 U.S. at 460; Araneta, 478 U.S. at 1304-05. As the Southern
District of New York explained in a similar case: “[T]he very act of disclosure to
Congress is ... irreparable.... [P]laintiffs [like Applicants here] have an interest in
keeping their records private from everyone, including congresspersons ….” CA2 Doc.
37 JA122:18-JA123:4, Trump v. Deutsche Bank, AG, No. 19-1540.
24
In all events, it would be “naïve to reality” to assume that Applicants’
information won’t be promptly disclosed to the public as well. Trump v. Comm. on
Oversight & Reform of U.S. House of Representatives, 380 F. Supp. 3d 76, 105 (D.D.C.
2019). In this very case, the D.C. Circuit agreed that public disclosure is both allowed
by its order and likely to occur. App.21 (noting that the kind of information at issue
here—i.e., “tax returns”—“often comes to light”).
Moreover, because this Court must assume that Applicants are correct on the
merits when assessing irreparable harm, Philip Morris, 561 U.S. at 1302, it must
assume that these disclosures will occur without a legitimate legislative purpose.
Denying a stay will thus violate Applicants’ statutorily protected right to taxpayer
privacy. That right is an “essential protection” that both secures “sensitive or
otherwise personal information” and “is fundamental to a tax system that relies upon
self-reporting.” NTEU v. FLRA, 791 F.2d 183, 184 (D.C. Cir. 1986).
IV.
The balance of the equities and public interest also support a stay.
That Applicants will suffer severe, case-mooting harm should end the debate.
But even if this were a “close case,” the “‘balance [of] equities’” strongly favors a stay.
Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers). That’s
because a stay will harm no one, while Applicants and the public will be significantly
harmed without one.
To start, no party will be harmed by a stay. The Committee would suffer “only
the prejudice that comes with any delay in a judicial proceeding.” United States ex
rel. Chandler v. Cook Cnty., 282 F.3d 448, 451 (7th Cir. 2002). That prejudice is
inconsequential. Id. And that’s especially true if the Committee is ultimately entitled
25
to Applicants’ information, because stays pending certiorari are relatively “short.” In
re Biaggi, 478 F.2d 489, 493 (2d Cir. 1973) (Friendly, J.). And the Committee has no
pressing need for Applicants’ information so it can study generic legislation about
funding and regulating future IRS audits of future Presidents. Cf. App.11-12. This
case has already been stayed for over 1,100 days, across two Congresses. That delay
was often either with the Committee’s consent or upon its own motion. For example,
the Committee took six months to decide whether to lift a stay and pursue Applicants’
confidential documents after the Biden Administration took office. App.204-06; see
Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (agreeing that a
self-imposed “eight-week delay ... undermines [an] allegation of irreparable harm”).
The Committee also previously agreed to stay the district court’s judgment pending
further review. Its complicity in the delay of this case makes any claim of urgency
confounding. In short, any “interest” the Committee has “in receiving [this]
information immediately” simply “poses no threat of irreparable harm.” John Doe
Agency, 488 U.S. at 1309.
It is no answer to say that the Committee is prejudiced because further delay
will moot the Committee’s request. Before the D.C. Circuit, the Committee agreed
that no amount of delay would moot its request. CADC Doc. #1960284, at 5-6 (citing
Mazars V, 39 F.4th at 786). And even if the Committee’s request were not fulfilled by
the end of the current Congressional term, it could carry over into later terms (as it
already has) and inform the Committee’s work then. See Mazars V, 39 F.4th at 78587.
26
Nor is it any answer to say, as the Committee likely will, that immediate
disclosure is necessary to “this Committee’s and this Congress’s ... work.” CADC Doc.
#1960284, at 6. This Court has already rejected that argument in Mazars. After the
Court ruled in that case, the House sought immediate issuance of the judgment, citing
the impending expiration of the House’s current term. Application at 3-4 ¶9, Comms.
of U.S. House of Rep. v. Trump, No. 20A15 (July 13, 2020). This Court rejected the
request. See Comms. of U.S. House of Rep v. Trump., 141 S. Ct. 197 (2020). On remand
from the Supreme Court, the House tried its luck again: it cited the end of its term to
argue that any further delay “significantly interfere[d] with Congress’s functioning
as a coordinate branch.” Mazars, Doc. #1859172 at 36, No. 19-5142. The D.C. Circuit
likewise disagreed. The court then remanded the case to the district court over the
House’s objections, regardless of “whether the case [would] become moot when the
subpoena expires” at the end of the House’s term. Mazars, Doc. #1877778. So too here.
The Court should thus reject the Committee’s pleas for needless expedition and stay
the case pending a petition for a writ of certiorari.
The Committee’s only possible need for Applicants’ records is to help it study
legislation. But studying IRS funding and staffing is not urgent in any meaningful
sense, especially given the “time and difficulty of enacting new legislation.” Coal. for
Responsible Regulation, Inc. v. EPA, 2012 WL 6621785, at *22 (D.C. Cir. 2012)
(Kavanaugh, J., dissenting from denial of rehearing en banc). Nor does the
Committee “need” these records to legislate given that “legislative judgments
normally depend more on the predicted consequences of proposed legislative actions”
27
than on examining “certain named individuals” or “precise[ly] reconstructi[ng] past
events.” Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d
725, 732 (D.C. Cir. 1974).
Even assuming the Committee would suffer some abstract harm if it could not
immediately access these records, that harm is dwarfed by the irreparable, casemooting harm that Applicants will suffer if a stay is denied. See Providence Journal,
595 F.2d at 890 (granting a stay because “the total and immediate divestiture of
appellants’ rights to have effective review” outweighed any harm from “postpon[ing]
the moment of disclosure”); Araneta, 478 U.S. at 1304-05 (granting a stay despite the
public’s “strong interest in moving forward expeditiously with a grand jury
investigation” because “the risk of injury to the applicants could well be irreparable
and the injury to the Government will likely be no more than the inconvenience of
delay”). At bottom, “[r]efusing a stay” in this case “may visit an irreversible harm on
applicants, but granting it will apparently do no permanent injury to respondents.”
Philip Morris, 561 U.S. at 1305.
But this Court need not balance the equities anew; several decisions have
already balanced them. In Mazars itself, when faced with a similar clash between the
executive and legislative branches, the Court stayed the D.C. Circuit’s mandate
pending certiorari. Trump v. Mazars USA, LLP, 140 S. Ct. 581 (2019). In United
States v. Nixon, 418 U.S. 683 (1974), the Court “stayed” the subpoena “pending [its]
resolution” of the merits. Id. at 714. The Court did so even though the subpoena
sought evidence that was “specific and central to the fair adjudication of a particular
28
criminal case.” Id. at 713. The Committee does not need Applicants’ records more
than the President’s records were needed in Nixon. Likewise, in Eastland, the D.C.
Circuit twice stayed a congressional subpoena to the plaintiff’s bank. U.S.
Servicemen’s Fund v. Eastland, 488 F.2d 1252, 1254 (D.C. Cir. 1973). The “decisive
element” favoring a stay was the fact that “unless a stay is granted this case will be
mooted, and there is likelihood, that irreparable harm will be suffered” by the
plaintiff when the enforcement date arrives. Id. This Court ultimately reversed the
D.C. Circuit’s decision on the merits. But it praised how the court handled the
preliminary procedural issues in the case—stressing the need to avoid the risk that
“compliance ... could frustrate any judicial inquiry” into the subpoena’s legality.
Eastland, 421 U.S. at 501 n.14. That same risk exists here. And it should lead to the
same result: a stay pending further review.
It is unsurprising “that from the legislative viewpoint, any alternative to
outright enforcement of the [request] entails delay.” United States v. AT&T Co., 567
F.2d 121, 133 (D.C. Cir. 1977). But delay “is an inherent corollary of the existence of
coordinate branches.” Id. Courts “balance” the “public interest in the congressional
investigation” against individual rights and “executive ... interests.” Id. at 128. “The
Separation of Powers often impairs efficiency,” but that “delay” is justified by the
overriding concern in “the long-term staying power of government.” Id.; accord
Comm. on Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C.
Cir. 2008) (refusing to rush a subpoena dispute that had “potentially great
significance for the balance of power between the Legislative and Executive
29
Branches”). The publish interest especially favors preserving the status quo when the
case raises unprecedented separation-of-powers issues that warrant the Court’s
review. Generic concerns about “delay” cannot prevail when, as here, the case will
have lasting “consequences for the functioning of the Presidency.” In re Lindsey, 158
F.3d 1263, 1288-89 (D.C. Cir. 1998) (Tatel, J., concurring in part and dissenting in
part).
Finally, even if any doubts about the equities remained, the public interest
would extinguish them. The public has a strong interest in avoiding “the dangers of
intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457
U.S. at 754. The Committee will likely invoke Eastland’s instruction that
congressional demands for information should receive “the most expeditious
treatment.” 421 U.S. at 511 n.17. But the court rejected that same argument in
Mazars multiple times. And for good reason: Eastland was a case between Congress
and purely private parties; its insistence on “expeditious treatment” does not apply,
as the D.C. Circuit later explained, in cases raising separation-of-powers issues.
Ultimately, the equitable considerations—like all the others—favor a stay. The
Court should follow the same path it did in Mazars and grant a stay pending filing
and disposition of a petition for certiorari.
CONCLUSION
Applicants respectfully ask the Court to enter an administrative stay by
Wednesday, November 2, and then a stay pending the filing and disposition of a writ
of certiorari. If the Court wishes, it could also construe this application as a petition
for certiorari, and grant review.
30
Respectfully submitted,
Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
William S. Consovoy
Thomas R. McCarthy
Cameron T. Norris
Counsel of Record
James P. McGlone*
Thomas S. Vaseliou**
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Suite 700
Arlington, VA 22209
(703) 243-9423
cam@consovoymccarthy.com
* admitted in MA; supervised by VA attorneys
** admitted in TX; supervised by VA
attorneys
Counsel for Applicants
OCTOBER 31, 2022
31
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.