A federal appellate judge considering whether Donald Trump should be forced to turn over his tax returns to Congress suggested on Thursday that he could become president again – and that could be a factor in the case.
“We have a situation that involves a sitting President and a former President. If this drags out, for all we know he could be a sitting president again,” Judge Karen Henderson, of the US Court of Appeals for the DC Circuit, noted on Thursday.
Henderson weighed in during a hearing where three judges on the appeals court are looking at whether a lower court judge correctly threw out Trump’s attempt to block the House Ways and Means Committee from getting his and his business’ IRS records.
At times, the case has appeared to be the clearest route for the House to obtain Trump’s financial documents. But it has moved slowly, and moved forward only after Trump left office. Meanwhile, Trump and the House have faced off in a handful of other cases where Democratic-led legislative committees have subpoenaed his records.
Judges David Sentelle and Robert Wilkins also heard the case Thursday. Henderson and Sentelle are senior judges who initially took the bench during the Reagan administration, while Wilkins is a Barack Obama appointee.
In this case, the House Ways and Means Committee cited a law to obtain financial information from the IRS about Trump as a way to look at auditing presidents.
The lower court judge, Trevor McFadden, a Trump appointee, ruled the court couldn’t block Congress from getting the tax returns, because of the separation of powers between the judiciary and the legislative branches and binding Supreme Court rulings that give Congress broad latitude to pursue its inquiries.
But the DC Circuit on Thursday asked more questions about the separation of powers between the executive branch and Congress, and whether the courts should consider this more when determining whether Congress can get Trump’s IRS records.
Henderson pointed to another ongoing case between Trump and the House where the Supreme Court laid out a test for Congress to be able to seek his accounting records from the firm Mazars USA.
In the Mazars subpoena case, which still hasn’t been resolved, the courts need to weigh Congress’ powers and the presidency.
“We’ve got to look at this not as musical chairs, who’s changing, who’s withdrawing, and who’s leaving office and so forth,” Henderson added on Thursday.
The appeals court isn’t likely to rule for months, and any outcome could still be appealed to the Supreme Court or head through multiple additional rounds in lower-level courts.