The Senate confirmed Steven Menashi to the 2nd U.S. Circuit Court of Appeals on Thursday by a vote of 51–41. Every Republican present except Sen. Susan Collins supported Menashi; every Democrat present opposed him. With this confirmation, Donald Trump has flipped the 2nd Circuit to a majority of Republican appointees—a momentous shift in the balance of power that could help the president shield himself from criminal liability and congressional scrutiny in a jurisdiction, New York, which he previously called home.
Menashi, a 40-year-old White House attorney, is one of Trump’s most controversial judicial nominees. His past writings include inflammatory and offensive remarks about women, Muslims, LGBTQ people, and racial minorities. Menashi worked with Stephen Miller, a white supremacist White House aide, to craft Trump’s nativist immigration policies. He also helped Secretary of Education Betsy DeVos roll back protections for vulnerable students. Moreover, according to a New York Times report, he also devised an illegal program “to use private Social Security data to deny debt relief to thousands of students cheated by their for-profit colleges.”
During his confirmation hearing, Menashi refused to answer questions from both Republican and Democratic senators about his work in the Trump administration. His evasive performance drew criticism from Louisiana GOP Sen. John Kennedy, who said he was “real doubtful” that he would vote for the nominee. A day after Kennedy appeared at Trump rally, however, he announced his support for Menashi. Other putatively independent-minded Republicans like Sen. Lisa Murkowski then jumped on board, clinching his confirmation.
Menashi will now take a seat once filled by civil rights icon Thurgood Marshall. The 2nd Circuit will have a 7–6 Republican majority, including five Trump appointees. Whenever the court hears cases en banc—that is, with every judge sitting—conservatives will have the upper hand. This GOP advantage may prove especially helpful to Trump as Democrats ramp up their investigations of the president’s alleged misconduct. For instance, a three-judge panel for the 2nd Circuit is currently considering the legality of a subpoena that the House of Representatives issued to Deutsche Bank and Capital One for Trump’s financial records. If the panel goes against the president, Trump could request en banc review, leaning on the new majority to save his skin. On Nov. 4, meanwhile the court affirmed Manhattan District Attorney Cyrus R. Vance Jr.’s ability to subpoena Trump’s financial documents, including tax returns, from the accounting firm Mazars. Depending on the outcome of a pending appeal to the Supreme Court, the case could come before the 2nd Circuit once again in the future.
Trump’s attempts to insulate himself against oversight have no legal merit. The Supreme Court has confirmed Congress’ power to issue subpoenas pursuant to potential legislation time and time again, as well as the fundamental principle that no one in the United States is above the law. But Trump’s judges have already evinced a desire to ignore these precedents and protect the president who appointed them.
For instance, the the U.S. Court of Appeals for the District of Columbia Circuit upheld a House subpoena of Mazars, Judge Neomi Rao, a Trump appointee, dissented. Rao made the absurd and deeply hackish argument that “allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment.” In other words, Congress may not scrutinize the executive until it has launched a formal impeachment inquiry. Rao’s opinion disregarded long-standing Supreme Court precedent that compels the judiciary to respect Congress’ oversight authority. It rested on a rule that Rao simply conjured out of thin air in a muddled attempt to keep Trump’s records secret.
On Wednesday, a day before the Senate confirmed Menashi, the full D.C. Circuit declined to disturb its earlier decision upholding the Mazars subpoena.* Rao dissented again. This time, she claimed it didn’t matter that the House followed her instructions and launched an impeachment inquiry. Why? Because lawmakers did not explicitly say that the Mazars subpoena would fall “into the ambit of the impeachment inquiry.” Rao wants to make Democrats start from scratch, reissuing the subpoena and defending it through yet another series of hearings and appeals—a process that might run down the clock on impeachment. There is no constitutional basis for Rao’s assertion that judges can crush the legitimate exercise of congressional power in this manner.
Judge Gregory Katsas, another Trump appointee, also filed a dissent in that case on Wednesday. (Both Rao and Katsas worked in the Trump administration before joining the bench.) Katsas condemned his colleagues for allowing “open season on the President’s personal records.” The majority’s decision, he declared, was a “threat to presidential autonomy and independence” that is somehow “far greater” than criminal investigations into the executive’s conduct. Quoting Justice Antonin Scalia’s dissent in Morrison v. Olson—which is not the law, no matter how badly Republicans want it to be—Katsas wrote, “With regard to the threat to the Presidency, ‘this wolf comes as a wolf.’ ”
It’s no mystery what Rao and Katsas are doing here. They want to insert the judiciary into a dispute between Congress and the executive, aggrandizing their role to run interference for Trump. Rao even suggested that courts can “interpret the scope of impeachable offenses,” granting herself the power to actually block an impeachment altogether if she believes Congress failed to identify high crimes and misdemeanors. With every new judge that Trump appoints, more courts across the country inch closer toward Rao’s indefensible views. Menashi’s confirmation transforms yet another court into hostile territory for lawmakers and prosecutors seeking to hold the president accountable.
Correction, Nov. 14, 2019: This post originally misstated that the D.C. Circuit issued its decision on Thursday.