Trump v. Committee on Ways and Means

          MEMORANDUM OPINION

         This 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, ^[1] 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).

         Not so 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.

         To 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.

         For the 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 Committee Defendants.

         I. Background

         As 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).

         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 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.

         Although 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.

         Mr. 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.

         The 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.

         Following 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).

         The 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.

         On 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 request.

         On 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 ...