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Border Wall Ruling Gives Clues to Judge on Trump Tax Returns

July 5, 2019, 8:45 AM

A recent decision from the judge selected to rule in the lawsuit over President Donald Trump’s tax returns may offer clues about how that fight will go.

Judge Trevor N. McFadden sided with the administration in June in a case involving how to pay for Trump’s desired border wall.

But the reason he gave involved a broader issue than the border wall funds: McFadden ruled the House didn’t have standing, which is necessary for a federal judge to be able to rule on the actual dispute in the case.

That central question could be an important issue when it comes to the president’s tax returns, which the House Ways and Means Committee sued to obtain on July 2. The case is in the U.S. District Court for the District of Columbia.

And multiple legal experts say, given that Judge McFadden will make the decision, the border wall fight could offer insight.

Suing the Executive Branch

“This is certainly not the assignment that House lawyers would have wanted,” said Daniel Hemel, law professor at the University of Chicago Law School. “But they still have some cause for optimism.”

But he said McFadden’s discussion in the border wall decision of whether Congress could sue when it comes to investigations “suggests an expansive view of the House’s information-gathering power,” which is the power the House is invoking in the tax return lawsuit. Still, Hemel noted McFadden didn’t rule on that issue.

Steven Rosenthal, a senior fellow in the Urban-Brookings Tax Policy Center, saw the distinction McFadden drew between the appropriations powers in the border wall case and the investigatory powers here as crucial.

“Based on the views he expressed in his border wall case, the Ways and Means Committee ought to do real well,” Rosenthal said. “The question though is how consistent this judge will be.”

Andy Grewal, a professor at the University of Iowa College of Law, said McFadden’s opinion still suggested he hadn’t actually decided when it comes to investigations.

Grewal referenced a footnote in the opinion, where McFadden acknowledged the administration’s argument that earlier cases supporting Congress’ investigatory powers were wrongly decided. But McFadden decided not to engage with the issue, saying that because the border wall case was about appropriations powers rather than investigatory powers, he “need not address this argument.”

Grewal said he didn’t know how McFadden would rule, “but he clearly has an open mind where other judges have opined differently.”

Grewal believed this openness made McFadden “the best selection for the administration.”

An Answer Before Elections?

Because the case will probably be appealed, McFadden’s speed could also matter as Democrats try to get the returns before the 2020 elections.

In this respect, McFadden might look better to the Democrats. “Judge McFadden appears to move quickly, and that’s good news for the House,” Hemel said.

Grewal agreed, pointing to a list of judges with motions pending for more than six months. “He’s not on the naughty list of judges with big backlogs,” he said.

However, on appeal the case might slow down, Grewal suggested. “This is about: Can Congress sue the president?” he said. He didn’t think a higher court would hastily answer a question that could have far-reaching effects, or that the Supreme Court would see it as a national emergency needing a quick conclusion.

To contact the reporter on this story: Aysha Bagchi in Washington at abagchi@bloombergtax.com

To contact the editors responsible for this story: Patrick Ambrosio at pambrosio@bloombergtax.com; Megan Pannone at mpannone@bloombergtax.com

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