Jurisprudence

Neomi Rao’s Efforts to Place Trump Above the Law Must Fail

Neomi Rao
Neomi Rao testifies during a Senate Judiciary Committee confirmation hearing on Capitol Hill on Feb. 5. Zach Gibson/Getty Images

On Friday, the U.S. Court of Appeals for the District of Columbia Circuit hears fresh arguments over the House Judiciary Committee’s attempts to access redacted portions of special counsel Robert Mueller’s report. While the fight over the redacted grand jury Mueller materials has taken a back seat in the public’s consciousness to the House’s impeachment of the president, it continues to be of paramount importance. Meanwhile, the Supreme Court agreed last month to hear a different case regarding the House Oversight Committee’s efforts to subpoena President Donald Trump’s financial records from his accounting firm, Mazars. The D.C. Circuit, the same court hearing the Mueller grand jury case, had previously rejected the president’s challenge to that subpoena.

By chance, the three-judge panels in each case have included Judge Neomi Rao, who was nominated to the court by Trump. And in each case, Judge Rao has put forward novel theories that, taken together, would all but preclude Congress from enforcing legitimate subpoenas against the president in court and place him largely above the law. Fortunately, Rao’s colleagues have thus far been rejecting her ideas. The Supreme Court should as well.

First, in Trump v. Mazars, the House Oversight Committee subpoenaed the president’s accounting firm for financial documents as part of its investigation into whether to pass new federal financial-disclosure and conflict-of-interest legislation. As I’ve previously written, “Congress clearly has a legitimate basis for investigating whether the president complied with [the Ethics in Government Act’s] existing requirements and in what ways the act might be insufficient to address his (or any other federal official’s) various business and property interests.”

A panel of the D.C. Circuit agreed, reasoning that Congress could enact legislation that required presidents “to file reports more frequently, to include information covering a longer period of time, or to provide new kinds of information such as past financial dealings with foreign businesses or current liabilities of closely held companies.” And the majority rejected the president’s argument that the investigation is actually an illegitimate effort to engage in law enforcement, explaining that Supreme Court precedent says “an interest in past illegality can be wholly consistent with an intent to enact remedial legislation.”

Judge Rao, however, dissented. According to Rao, where a congressional inquiry concerns the president, that inquiry “may be pursued only through impeachment,” even where Congress has an otherwise valid legislative purpose for its investigation. The problem with this argument is that it has no basis in Supreme Court case law or historical precedent. As the majority pointed out, “the dissent cites nothing in the Constitution or case law—and there is nothing—that compels Congress to abandon its legislative role at the first scent of potential illegality and confine itself exclusively to the impeachment process.” And, as the majority reasoned, “the dissent’s approach would not even allow Congress to make the quintessentially legislative judgment that some concerns about potential misconduct or illegality are better addressed through oversight and legislation than impeachment”—or at least, it would not allow Congress to obtain the information it needs to pass such legislation without “pull[ing] the impeachment trigger.” Thankfully, a majority of the entire D.C. Circuit refused to rehear the Mazars case. It is now before the Supreme Court, which should have the final say on whether the subpoena goes into effect this spring when the case is argued and decided.

As Rao has rejected long-standing precedent upholding legitimate congressional oversight of the president in Mazars, she has also been put on the panel deciding a key case on impeachment that is getting a new hearing on Friday. In this case, a district court ordered the Justice Department to disclose redacted portions of the Mueller report requested by the House Judiciary Committee as part of its impeachment inquiry, and the Trump administration appealed the case to the D.C. Circuit. As I’ve previously explained, the House’s request comports with the Federal Rules of Criminal Procedure and “is also consistent with centuries of precedent” in which the House has received grand jury materials pursuant to its impeachment function.

Notably, in a previous hearing regarding whether the district court’s order to turn over the materials should be put on pause pending appeal, Rao brought up an issue not raised by the parties: whether the court even had the power to hear the case. According to Rao, it was potentially “inappropriate for the Court to assist or interfere with impeachment proceedings.” This issue—and whether and how the case should proceed now that the president has been impeached—will be before the court on Friday.

Rao’s argument, though, is as surprising as it is wrong, and if combined with her argument in Mazars, it would help place Trump above any congressional oversight and further insulate the executive branch from an important check by the judicial branch. Her argument is wrong because the House filed a proper application with the district court seeking materials that are in the district court’s possession and power to disclose pursuant to a Federal Rule of Criminal Procedure. And the question at issue—the proper interpretation of Rule 6(e) of the federal rules—is a quintessential legal question that is within the judiciary’s purview to decide. Judge Rao cited as support for her question a Supreme Court case regarding the impeachment of Judge Walter Nixon in which the Supreme Court held that the courts lacked jurisdiction to hear Judge Nixon’s challenges to the Senate’s impeachment procedures. But it is a massive logical jump to expand that doctrine—which simply says that courts should not entangle themselves with the procedures of the Senate impeachment trial—to suggest that courts lose jurisdiction over the proper interpretation of the Federal Rules of Criminal Procedure simply because the materials at issue are related to an impeachment inquiry.

Tellingly, even the Department of Justice—which is otherwise fighting the committee’s efforts to obtain the materials—has agreed that the court can hear the case, reasoning correctly that “[a]djudicating a petition under generally applicable provisions of Rule 6(e) does not necessarily require a federal court to exercise review over any aspect of the impeachment power textually committed to Congress.” And as a good example, it noted that a federal court could preside over a “federal criminal prosecution of a witness for perjury in an impeachment hearing.”

How Rao and the rest of the panel will end up deciding this jurisdictional question remains to be seen. But again, what is most frightening about Rao’s suggestion that the court lacks jurisdiction is what it would mean in conjunction with her dissent in Mazars. Taking her two theories together, all oversight that could reveal illegal conduct by the president would need to occur through the mechanism of impeachment, and courts would lack jurisdiction to hear legal disputes that bear some relation to impeachment. In effect, her theories would significantly undermine Congress’ ability to ask the courts to enforce requests for information related to possible illegal conduct by the president.

Thankfully, we should never get to that point. Judge Rao’s views—both on the limitations on congressional oversight of the president and the limitations on courts’ ability to review impeachment-related disputes—have no basis in history or precedent. When the Supreme Court considers the Mazars case this spring, and if it at some point ends up considering the case regarding the Mueller grand jury materials, the court should reject Rao’s restrictive vision of congressional and judicial authority and reinforce its commitment to the most basic constitutional principle: No one is above the law.