A little over a month ago, I suggested that Trump’s opposition to the subpoenas issued for his tax returns would shortly become moot. Trump’s opposition was rooted primarily in the distinction between a congressional subpoena for legislative purposes and one pursuant to an impeachment proceeding. I therefore predicted that, because the investigations would shortly ripen into impeachment investigations, the alleged distinction between Congressional legislative power and its impeachment power would no longer be pertinent. At the time, I noted that:
Judge Rao’s dissent is premised solely on what she believes is a limitation on Congress’ legislative power. She makes a distinction between the legislative power of Congress and what she terms its judicial power. Among the areas in which she believes that the judicial power can be exercised is that of impeachment.
Today, the D.C. Court of appeals, in a per curiam opinion, declined to block the subpoena. Judge Rao, in one of the two dissents, realized that the facts that underlay her original opinion had basically disappeared. However, she fought on:
The Committee’s suggestion that the current impeachment inquiry somehow alters this case depends on whether House Resolution 660 ratifies this subpoena. This Circuit has not determined whether a defective subpoena can be revived by after-the-fact approval. But we need not confront that question here, because even assuming the subpoena could be issued under the impeachment power, the Committee has not reissued the subpoena pursuant to that power and House Resolution 660 does not purport to sweep previously issued subpoenas into the ambit of the impeachment inquiry.Slip op. at 6-7 (Rao, J. dissent at 2-3). citation and internal quote omitted.
Judge Rao’s dissent would open up nothing more than a path to further delay. As the case stands now, the previous objections to the tax return subpoenas are, as a practical matter, moot. It’s always difficult to make predictions about the actions that the Supreme Court might take, but I don’t think that the Court will take this case up in its present posture.