The ruling from the full D.C. Circuit wasn’t unanimous, however, with two separate dissenting opinions that argue in favor of a closer look at the issues of the separation of branches that are central to the president’s lawsuit.
Trump’s personal attorney Jay Sekulow seized on those outliers in a brief statement pledging an appeal. “In light of the dissents, we will be seeking review at the Supreme Court,” he said.
It’s not the only case the president is pushing to get before the nation’s highest court. Trump is also planningto ask for a Supreme Court review to block a grand jury in New York from getting his tax returns as part of a criminal investigation.
At issue is a subpoena from the House Oversight and Government Reform Committee from mid-April that sought financial records from Mazars USA for work it did for Trump both before and after he took office.
The president in May lost before a lower federal judge, who ruled that it wasn’t the District Court’s right to second-guess a House panel’s claims for the records. Trump appealed to the D.C. Circuit, which last month ruled2-1 that presidents “enjoy no blanket immunity from congressional subpoenas.”
In Wednesday’s rulings, Judges David Tatel and Patricia Millett from the original panel voted against granting Trump’s request for a rehearing. Judge Neomi Rao, a Trump appointee who filed a dissent in the initial opinion, sided with the president.
Rao also penned a dissent on the decision for a rehearing en banc before the entire D.C. Circuit, calling the Oversight panel’s subpoena “unprecedented.”
“The Constitution and our historical practice draw a sharp line between the legislative and judicial powers of Congress,” wrote Rao, who was joined in her dissent by Judge Karen Henderson, an appointee of President George H.W. Bush. “By upholding this subpoena, the panel opinion has shifted the balance of power between Congress and the President and allowed a congressional committee to circumvent the careful process of impeachment.”
The other dissenting opinion on the en banc review came from Trump’s other appointee to the D.C. Circuit, Judge Greg Katsas.
“If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary,” wrote Katsas, a former attorney in the Trump White House counsel’s office. He was also joined by Henderson.
Voting against a rehearing en banc were Judges Merrick Garland, Judith Rogers, David Tatel, Thomas Griffith, Sri Srinivasan, Patricia Millett, Cornelia Pillard and Robert Wilkins. All of the judges are appointees of Democratic presidents except Griffith, who was named to the court in 2005 by President George W. Bush.