United States District Court, District of Columbia
DONALD J. TRUMP, Plaintiff,
COMMITTEE ON WAYS AND MEANS, UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants.
case is, in many respects, extraordinary. In the typical
case, a congressional subpoena includes a return date of a
week or more for the recipient to respond. See,
e.g., Trump v. Mazars USA, LLP, 940 F.3d 710,
717 (D.C. Cir. 2019) (return date of fourteen days);
Opp'n of Intervenor-Defs. to Pls.' Mot. for a Prelim.
Inj. at 9-10, Trump v. Deutsche Bank AG, No. 19 Civ.
3826 (S.D.N.Y. May 10, 2019), ECF No. 51 (return date of
twenty-one days). The fact that a subpoena has been, or will
be, served is often made public,  and subpoena recipients
often have legal obligations to disclose to third parties
that their records might be produced. As a result, the
recipient of a congressional subpoena, as well as any party
that might have an interest in the records, usually has both
notice of the demand and some time to challenge the subpoena
before the records are produced. See, e.g.,
Mazars, 940 F.3d at 717-18; Trump v. Deutsche
Bank AG, No. 19 Civ. 3826, 2019 WL 2204898 (S.D.N.Y. May
22, 2019) (order denying request to prevent enforcement of,
and compliance with, a congressional subpoena).
here. The Tax Returns Released Under Specific Terms Act
(“TRUST Act”), N.Y. Tax Law § 697(f-1),
(f-2) (2019) (codifying the TRUST Act), amends New York's
tax laws to authorize the chairperson of one of three
congressional committees, including Defendant Chairman
Richard Neal of the House Committee on Ways and Means
(“Committee”), to request the New York state tax
returns of the President of the United States, among other
elected officials. Id. § 697(f-1). The TRUST
Act does not require a committee chairperson like Chairman
Neal to provide notice to a covered official that a request
has been made for the official's New York tax returns,
nor does the TRUST Act require New York's Tax
Commissioner to provide notice that he has received such a
request. See generally Id. § 697(f-1), (f-2).
Moreover, neither the TRUST Act nor any House or Committee
rule requires that such a request include a future return
date. See generally Id. § 697(f-1), (f-2); July
29, 2019 Hr'g Tr., Dkt. 23, at 13-14. As a result,
Chairman Neal could request, and the Commissioner could
immediately produce to the Committee, the New York tax
returns of the sitting President of the United States without
having provided prior notice to the President.
date, Chairman Neal has not made such a request. On July 23,
2019, however, citing concerns that Chairman Neal might soon
attempt to employ the TRUST Act to procure his New York
returns, Donald J. Trump filed this action. See
generally Compl., Dkt. 1. Mr. Trump also filed an
Emergency Application for Relief Under the All Writs Act
(“Emergency Application”). Dkt. 6; see
also 28 U.S.C. § 1651 (2018) (permitting courts to
“issue all writs necessary or appropriate in aid of
their respective jurisdictions”). Mr. Trump's
Emergency Application argues that, without emergency relief,
his state tax records could be requested and produced to the
Committee without prior notice to him, thereby preventing any
court from addressing the legality of the request. Mem. of P.
& A. in Supp. of Pl.'s Emergency Appl.
(“Emergency Appl.”), Dkt. 6-1, at 1. He thus
seeks an order that would permit the Parties to litigate the
legality of a request for his state returns, if and when such
a request is made, before his claims become moot. Emergency
Appl. at 1; Reply in Supp. of Pl.'s Emergency Appl.
(“Pl.'s Reply”), Dkt. 17, at 1, 8-10;
Pl.'s Mem. of P. & A. in Opp'n to Congressional
Defs.' Mot. to Dismiss (“Pl.'s Opp'n to
Defs.' Mot.”), Dkt. 46, at 1-2. The Congressional
Defendants have agreed that they would provide Mr. Trump and
the Court with contemporaneous notice of a request, Nov. 18,
2019 Hr'g Tr., Dkt. 50, at 10; Notice (Nov. 18, 2019),
Dkt. 49, but will not agree to defer receipt of Mr.
Trump's records for any period of time. See
Defs.' Opp'n to Pl.'s Mot. for Emergency Appl.
(“Defs.' Opp'n to Emergency Appl.”), Dkt.
14, at 1-2; Mem. of Law in Supp. of Defs.' Mot. to
Dismiss (“Mot.”), Dkt. 42, at 1-3; Defs.'
Reply in Supp. of Mot. (“Defs.' Reply”), Dkt.
48, at 1-2.
reasons that follow, the Court will enter very limited relief
under the All Writs Act. The Court will not prevent the
Congressional Defendants from making a request under the
TRUST Act, nor will it require the Congressional Defendants
to provide advance notice of their intent to make a request
(the relief Mr. Trump currently seeks). Instead, the Court
will require the Congressional Defendants to provide the
Court and Mr. Trump with contemporaneous notice of any
request made by Chairman Neal, a commitment they recently
made. See Nov. 18, 2019 Hr'g Tr. at 10; Notice
(Nov. 18, 2019). In addition, the Court will order that the
Congressional Defendants not receive the requested records
for a period of fourteen days, during which time the Court
can decide whether the request is lawful. In the Court's
view, such limited relief will place this matter in roughly
the same procedural posture as the typical subpoena case,
while treading as lightly as possible on the separation of
powers and Speech or Debate Clause concerns raised by the
Court has previously recognized, Mem. Op. (Nov. 11, 2019),
Dkt. 44, at 3, New York law generally requires that state tax
returns be held confidentially and permits their disclosure
in only certain enumerated exceptions. See, e.g.,
Tax § 697(e) (secrecy requirement); id. §
697(f) (permitting disclosure to cooperate with certain U.S.
and state proceedings). The TRUST Act adds another exception.
It authorizes the chairpersons of the Committee on Ways and
Means of the U.S. House of Representatives, the Committee on
Finance of the U.S. Senate, and the Joint Committee on
Taxation to request from the Commissioner of the New York
State Department of Taxation and Finance “any current
or prior year [state tax] reports or returns” of
“the president of the United States, vice-president of
the United States, member of the United States Congress
representing New York state” or other public official
enumerated in the statute. Id. § 697(f-1). Such
a request must “certif[y] in writing”: (1) that
the requested tax “reports or returns have been
requested related to, and in furtherance of, a legitimate
task of the Congress”; (2) that the requesting
committee has “made a written request to the United
States secretary of the treasury for related federal returns
or return information, pursuant to 26 U.S.C. [§]
6103(f)”; and (3) that any inspection or submission to
another committee or to the full U.S. House of
Representatives or Senate be done “in a manner
consistent with federal law.” Id. §
697(f-2). Assuming the request includes those certifications,
the Commissioner must produce the requested returns with
redactions for “any copy of a federal return (or
portion thereof) attached to, or any information on a federal
return that is reflected on, such report or return.”
Id. § 697(f-1).
TRUST Act does not require a committee chairperson like
Chairman Neal to provide notice to a covered official that a
request has been made for that official's New York tax
returns, nor does the TRUST Act require the Commissioner to
provide the official with notice that he has received such a
request. See generally Id. § 697(f-1), (f-2).
Moreover, nothing in the TRUST Act, the Rules of the House,
or the Rules of the Committee requires either that the House
pass a resolution authorizing a request to be made by
Chairman Neal under the TRUST Act or that the Committee vote
to authorize such a request. See generally Id.
§ 697(f-1), (f-2); July 29, 2019 Hr'g Tr. at 13-14.
In fact, according to the Congressional Defendants, Chairman
Neal does not need any authorization from the Committee to
make a TRUST Act request, nor does he need to make the
request when Congress is in session. July 29, 2019 Hr'g
Tr. at 13-14. And nothing in the TRUST Act, the Rules of the
House, or the Rules of the Committee requires that any time
pass between request and production. The Parties therefore
agree that Chairman Neal could pose a TRUST Act request to
the Commissioner, and the Commissioner could respond
immediately to such a request, without Mr. Trump having prior
notice that his New York tax returns will be produced to the
Committee. E.g., id. at 14, 41.
Chairman Neal originally stated that he was unlikely to make
a request for Mr. Trump's state tax returns, Am. Compl.,
Dkt. 30, ¶ 65, by July 22, 2019, various media outlets
reported increasing pressure on Chairman Neal to do so.
See Id. ¶¶ 6, 66-72. The next day, Mr.
Trump filed this action. See generally
Compl. Mr. Trump claims that a request under the
TRUST Act would violate Article I of the U.S. Constitution
and the Rules of the House because the request for his New
York state tax returns would lack a legitimate legislative
purpose. Am. Compl. ¶¶ 73-76. And he claims that
the TRUST Act itself violates the First Amendment, as would
the production of any tax records pursuant to it.
Id. ¶¶ 77-81.
Trump also filed his Emergency Application, which asked the
Court to “preserve the status quo” because his
claims could become ripe and then moot almost instantaneously
without notice to him or the Court, thereby depriving the
Court of jurisdiction. Emergency Appl. at 5-6. Mr. Trump
proposed alternative forms of relief, including an order
preventing the Committee from “requesting or receiving
[Mr. Trump's] state tax returns from New York, ”
id. at 6; an order requiring the Committee “to
notify the Court if [Chairman Neal] intends to request [Mr.
Trump's] state tax returns from New York, ”
id.; an order preventing the Commissioner or New
York Attorney General from producing his tax returns,
Pl.'s Reply at 9; or “what amounts to a declaration
requiring the Committee to provide the requested notice and
opportunity to litigate, ” id.
Committee originally opposed the entry of any relief on a
single ground: that it enjoys absolutely immune from Mr.
Trump's claims. See generally Defs.'
Opp'n to Emergency Appl. As the Committee put it, its
“decision whether to avail itself of a newly enacted
provision of the New York tax code is a legislative act
absolutely immune from challenge.” Id. at 1.
The Committee conceded at that time that Mr. Trump had
otherwise satisfied the requirements for relief under the All
Writs Act. July 29, 2019 Hr'g Tr. at 17.
briefing and oral argument on the Emergency Application, the
Court ordered the Parties to meet and confer in light of the
Court's stated goals of (1) “ensuring that Mr.
Trump's claims do not become moot before they can be
litigated”; (2) “treading as lightly as possible,
if at all, on separation of powers and Speech or Debate
Clause concerns”; and (3) “adjudicating . . .
this dispute only when it is actually ripe and has a fuller
record than presently exists.” Id. at 53-54;
see Min. Order (July 29, 2019).
Parties were unable to reach agreement and instead filed
alternative proposals for how the case should proceed. The
Committee declined to commit to provide any advance notice to
the Court of its intent to make a request for Mr. Trump's
New York tax returns, see Joint Status Report (July
30, 2019), Dkt. 22, at 3-4. The New York Defendants, for
their part, proposed that the Commissioner would not respond
to any request for Mr. Trump's tax returns while the
Court considered and ruled on their forthcoming motion to
dismiss for lack of personal jurisdiction and improper venue.
Joint Status Report (July 30, 2019) at 4-6. The Court largely
adopted this proposal and, on August 1, 2019, ordered that
(1) the New York Defendants could move to dismiss the
Complaint for lack of personal jurisdiction over them and for
improper venue on an expedited basis; (2) “during the
pendency of the New York Defendants' Motion and for a
period of one week from the Court's decision . . ., the
New York Defendants shall not deliver to the Committee any
information concerning Mr. Trump that may be requested by
Chairman Neal under the TRUST Act”; and (3) the New
York Defendants shall notify the Court if Chairman Neal made
a request during that same one-week time period. Order (Aug.
1, 2019), Dkt. 25, at 3-4.
November 11, 2019, the Court granted the New York
Defendants' Motion to Dismiss. Order (Nov. 11, 2019),
Dkt. 45. The Court also ordered Mr. Trump and the
Congressional Defendants to meet and confer and submit a
joint status report regarding “how they would propose
to proceed on the Emergency Application . . . which remains
pending before the Court.” Id. Mr. Trump
proposes that the Court grant the Emergency Application by
either “order[ing] one or more of the Congressional
Defendants to notify Plaintiff and the Court at least 14 days
before Chairman Neal makes a TRUST Act request concerning
[Mr.] Trump or any related entity” or “order[ing]
one or more of the New York Defendants to notify Plaintiff
and the Court when the Commissioner receives a TRUST Act
request concerning [Mr.] Trump or any related entity, and to
wait at least 14 days before complying with that
request.” Joint Status Report (Nov. 13, 2019), Dkt. 47,
at 1. The Congressional Defendants continue to oppose any
requirement that they provide advance notice of a TRUST Act
November 18, 2019, at the Committee's request, see
Id. at 2, the Court held another hearing on Mr.
Trump's Emergency Application. During the hearing and in
a submission following the hearing, the Congressional
Defendants have agreed to provide Mr. Trump and the Court
with contemporaneous notice of a TRUST Act request.
See Nov. 18, 2019 Hr'g Tr. at 10; Notice (Nov.
18, 2019). But they continue to oppose having to ...