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Ciara O'Rourke
By Ciara O'Rourke September 29, 2020

No, Merrick Garland isn’t investigating Donald Trump for tax evasion

If Your Time is short

  • Merrick Garland is a judge whose 2016 nomination to the Supreme Court was blocked by the Republican-led Senate.
     
  • The appeals court where Garland served as the chief judge until February has reviewed efforts by Donald Trump to block the House oversight committee from subpoenaing his financial records, but Garland was not involved in the ruling. 
 

In 2016, Senate Republicans refused to hold a confirmation hearing for Merrick Garland, then-President Barack Obama’s nominee to replace Justice Antonin Scalia on the Supreme Court. 

The seat was eventually filled by Neil Gorsuch, whom President Donald Trump nominated after taking office. Garland, shut out, kept his post as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. 

But reports suggesting a possible Garland score-settling were off base. And Garland is not investigating a tax evasion case against Trump, as a recent Facebook post claims

"Holy Cow!" begins the post before referring obliquely to the president. "Guess who’s investigating Turnip’s tax evasion case? None other than … Merrick Garland. I know he’ll be utterly fair. It’s just kind of sweetly karmic that it’s his case." 

This post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.) 

First, Trump has not been charged with tax evasion. The Manhattan district attorney’s office recently suggested in a court filing that it has grounds to investigate the president and his business for tax fraud, but that’s a case over the president’s financial records that’s being fought in the U.S. Court of Appeals for the Second Circuit. 

The claim in this Facebook post appears to stem from efforts by the House Oversight and Government Reform Committee to review Trump’s financial information. In April 2019, the committee subpoenaed several years of the president’s financial information from Mazars, an accounting firm that prepared Trump’s financial statements. The request came after Trump’s former lawyer, Michael Cohen, claimed Trump had inflated his net worth as he unsuccessfully tried to buy the Buffalo Bills football team

Trump responded by suing the accounting firm and the House committee’s chairman, Rep. Elijah Cummings, D-Md., to keep the records private.

U.S. District Court Judge Amit Mehta ruled that Congress was within its rights to request the records as part of an investigation into whether the president illegally inflated or deflated amounts on his financial statements.  

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Trump appealed the decision to the U.S. Court of Appeals for the D.C. Circuit, where Garland served as chief judge. 

At the time, publications such as Newsweek reported that Trump’s "subpoena appeals now head to Merrick Garland’s court." Vanity Fair published a story with the headline: "Trump begs Merrick Garland to keep his financial lies private." The magazine also tweeted the story, writing: "Trump’s fate now rests in the hands of Merrick Garland, the judge whose Supreme Court seat Republicans effectively stole." 

Steve Vladeck, a law professor at the University of Texas, took issue with that framing. 

"Dear internet," he tweeted at the time. "Chief Judge Garland is one of 11 active judges, and 17 judges total who currently hear appeals on the D.C. Circuit as part of three-judge panels. The odds that his case goes to a panel including Garland, specifically, are … modest."

And in fact, the case didn’t wind up with Garland. In October, a three-judge panel ruled 2-1 that the House committee could subpoena Trump’s records. Garland was not on the panel. Two judges appointed by Democratic presidents — David Tatel and Patricia Millett — wrote the ruling for the court. Judge Neomi Rao, who was appointed by Trump, dissented.

The case made its way to the Supreme Court, which ruled in July that the House can subpoena the records if it meets rigorous standards. The Supreme Court then kicked the case back to the appeals court for further review. It’s now being briefed again before the three-judge panel, Vladeck told us. 

The panel does not include Garland, who stepped down as chief judge in February but continues to serve on the court. 

"The only way he’d even be involved in this case at this juncture is if it goes before the en banc (full) court rather than the three-judge panel, which seems more than a little unlikely," Vladeck said in an email. 

We rate this Facebook post False.

 

Our Sources

Facebook post, Sept. 29, 2020

The New York Times, Shadow of Merrick Garland hangs over the next Supreme Court fight, Sept. 19, 2020

NPR, Senate confirms Gorsuch to Supreme Court, April 7, 2017

Cornell Law School, Tax evasion, visited Sept. 29, 2020 

Newsweek, Donald Trump’s subpoena appeals now head to Merrick Garland’s court, May 21, 2019

The New York Times, Trump could be investigated for tax fraud, D.A. says for first time, Sept. 21, 2020

CNN, House Committee subpoenas Trump financial information from accounting firm, April 15, 2019

USA Today, Michael Cohen: President Trump inflated net worth as part of effort to buy Bills, Feb. 27, 2019

Washington Post, House oversight committee postpones subpoena deadline for Trump financial records until court ruling, April 23, 2019 

House Committee on Oversight and Reform, Cummings issues statement on ruling that Mazars must comply with Oversight Committee subpoena Trump’s records, Oct. 11, 2019

Vanity Fair, Trump begs Merrick Garland to keep his financial lies private, May 21, 2019

Vanity Fair tweet, May 21, 2019

Steve Vladeck tweet, May 21, 2019

Washington Post, Appeals court rules against Trump in fight with Congress over president’s accounting firm records, Oct. 11, 2019

Wall Street Journal, Appeals court says house can subpoena Trump accounting records, Oct. 11, 2019

U.S. Court of Appeals District of Columbia, Merrick B. Garland, visited Sept. 29, 2020

Politico, House mounts last-ditch bid for Trump’s financial records, Aug. 31, 2020

NPR, Legal fight over Trump’s financial records grinds on even as tax details spill out, Sept. 29, 2020

Email interview with Stephen Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas at Austin, Sept. 29, 2020

 

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No, Merrick Garland isn’t investigating Donald Trump for tax evasion

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