NEW YORK SUN: A Star Is Born in the Battle Over Trump’s Tax Returns.
A star is born. The big news in appeals court ruling in the House’s subpoena for President Trump’s tax records is not that the court supports it, though that’s no small thing. It’s the dissent by the newly minted appeals judge on the D.C. Circuit, Neomi Rao. She reckons that the way House is going after Mr. Trump violates the constitutional prohibition against bills of attainder.
Brava, your honor. The chief editorial writer of the Sun has been singing this song since Senator Biden and his Judiciary Committee colleagues launched their attack on Justice-to-be Clarence Thomas. The prohibition on bills of attainder, in which a legislature condemns an individual, are flatly prohibited, both to the state and federal governments. They’re as un-American as titles of nobility.
Judge Rao cuts through the House’s humbug about how this investigation is being made pursuant to the legislative power — as if what the House wants is better laws regulating the president. If that had been its interest, of course, the House would have been trying for generations to pass laws cramping our presidents. The judge gets that the claims to a legislative purpose are gossamer.
The judge quotes a memorandum by the chairman of the House Oversight Committee, Elijah Cummings, a major figure in Congress. The memo, Judge Rao noted, said the committee was investigating “whether the President may have engaged in illegal conduct” and notes that this information would inform “its review of multiple laws and legislative proposals under our jurisdiction.”
What the judge sees in that is the committee announcing “two distinct investigations” — “one to explore allegations of illegal conduct by the President; and another to review multiple laws and legislative proposals within the Committee’s jurisdiction. Yet, she notes, the committee “justifies both inquiries under the legislative power,” and, she adds, the court’s majority accepts that framework.
She, however, does not. Congress’s legislative powers, she notes, are “limited and enumerated.” In America, “legislative power does not include the exercise of judicial power to determine the guilt or innocence of individuals.”
The full opinion, which I have not read, is here.
Related: Ed Whelan:
I have not been able to sort through the competing arguments to assess who has the stronger position. Many other folks, however, were able to launch vehement attacks against Judge Rao within minutes of the time the opinion was issued. None of the criticisms I saw provided any evidence that the attackers had actually read Rao’s dissent. So I figure that it would be useful to present a summary of her major arguments.
Enjoy.