A Second Circuit Court of Appeals panel panned arguments from Donald Trump’s lawyers in opposition to the Manhattan District Attorney Cyrus Vance’s criminal subpoena of a third party for the president’s tax returns.
President Donald Trump’s drive to block Manhattan prosecutors from accessing a large swath of his tax and financial records got a chilly reception Friday from a federal appeals court.
Three judges on the New York-based 2nd Circuit U.S. Court of Appeals repeatedly questioned Trump attorney William Consovoy’s claim that Manhattan District Attorney Cy Vance’s grand jury subpoena for Trump’s records was “overbroad” and issued in retaliation for the Trump organization’s resistance to an earlier demand for Trump’s tax returns.
Rather, they said, it was Consovoy who seemed to be misconstruing long-settled understandings about how grand jury subpoenas and investigations work.
“Are you asking us to change the way grand juries have done their work for time immemorial just because we’re dealing with somebody who’s president of the United States?” wondered Judge Robert Katzmann, an appointee of President Bill Clinton.
During the virtual arguments before the court, Consovoy insisted that the demand for eight years of Trump’s tax returns, as well as information on businesses from Washington to Indonesia showed a probe unmoored from any legitimate bounds.
“If you were to look up the definition of a fishing expedition, this is it,” Consovoy declared. “The district attorney isn’t focused on anything.”
The one judge on the panel who sounded somewhat sympathetic to Trump’s arguments, Obama appointee Raymond Lohier, suggested at one point narrowing the subpoena from eight years of records to five and excluding foreign entities.
Dude, that’s where investigators will find the Russian money laundering. (See Judge Leval below).
“Would that be something you could live with?” Lohier asked.
“I don’t think so,” Consovoy replied, saying that wouldn’t address the president’s claim of retaliation or his argument that issues relating to his Washington hotel were no business of the Manhattan-based DA.
The unwillingness to compromise seemed to underscore that the critical political question in the dispute at the moment may be less whether Vance prevails in his quest, but when.
While Vance’s office has been careful not to tie the case to any political calendar or considerations, if his team can obtain the records in the next few weeks, it is possible some criminal charges could be brought before the November election and have some impact on the presidential race.
But that window is rapidly closing, particularly given the unusually high number of voters expected to vote early this year due to the coronavirus pandemic.
Vance lawyer Carey Dunne steered clear of imputing any political urgency to the fight, which stalled for more than half a year as the Trump team took a claim of absolute presidential immunity to the Supreme Court. The justices unanimously turned that argument down in July, but said Trump could still pursue other arguments open to every litigant.
Dunne did suggest that the Trump team’s tack was transparent. “It’s basically achieving delay,” he said.
Dilatory tactics to obstruct justice.
The sharp questions from the judges for Consovoy portend a likely ruling that Vance may enforce a subpoena against Mazars USA, Trump’s accounting firm, in what appears to be a wide-ranging investigation into the Trump Organization’s business practices.
[O]ne of Trump’s complaints in the case before the appeals court Friday is that Vance’s subpoena is overbroad because it simply mimics the congressional subpoena. But that argument seemed to have little resonance with the judges.
Trump’s legal team has argued that the Manhattan DA’s investigation is focused solely on so-called “hush money” payments Cohen orchestrated during the 2016 campaign to women claiming sexual encounters with Trump, because that’s how an initial subpoena seemed to be framed. But Dunne rejected that conclusion as a “non-sequitur.”
“There’s no logical reason to assume the earlier subpoena define the scope of the investigation, as opposed to the later subpoena,” Dunne said.
Consovoy insisted that it was “plausible” that the probe was still limited in that way, so the latest subpoena should be kept on hold while the president’s lawsuit proceeds, but
Dunne called that argument “preposterous.”
If the appeals court panel upholds the lower court decision tossing out Trump’s renewed suit over the subpoena, the president could ask for review by the full bench of the 2nd Circuit, but that isn’t commonly granted.
Trump could also ask the Supreme Court to weigh in on the case a second time, but he’d likely need some form of emergency relief from the 2nd Circuit or the Supreme Court to prevent Vance from enforcing the subpoena against the accounting firm believed to hold Trump’s records.
In fact, Judge Leval said he believed that the order issued Sept. 1 by a separate three-member panel of judges from the U.S. Court of Appeals for the 2nd Circuit was only meant to pause a lower court’s dismissal of Trump’s renewed bid to kill the subpoena — but that it did not prevent the district attorney, Cyrus R. Vance Jr. (D), from collecting the president’s financial records from his accounting firm in the meantime. Judge asks district attorney why he didn’t take Trump’s tax returns weeks ago:
“The stay was a stay on dismissal of complaint,” Leval said during questioning of a lawyer for the district attorney. “It was not a stay on execution of subpoena.”
A stay is a judicial order that temporarily prevents an event that is the subject of litigation from taking place.
The judge added that the “existence of the complaint doesn’t stop the district attorney from enforcing the subpoena.”
Carey Dunne, general counsel in the district attorney’s office, said the appeals court’s Sept. 1 order was not interpreted that way.
Why the hell not?
Both sides were ordered to submit by Tuesday written arguments explaining how each interpreted the order, which did not offer specific guidance on whether the subpoena was subject to the stay. Rather, it only generally granted the intervention Trump and his attorneys sought.
* * *
Should Vance prevail, it is doubtful Trump’s tax records would become public anytime soon — if ever — because grand jury proceeding are secret. If any charges are brought, some of the information could be cited in public filings or aired during court proceedings.
The judges did not say when a ruling on the appeal is expected.
Donald Trump and his henchman Attorney General William “Coverup” Barr racked up several more losses this week as well.
Court rulings this week:
1. DOJ motion to dismiss McCabe lawsuit denied
2. DOJ motion to dismiss Page lawsuit denied
3. DOJ and FBI motions to dismiss Stzrok lawsuit denied
4. DC Circuit rules House has standing to challenge Administration misuse of funds to build "wall"
— Andrew Weissmann (@AWeissmann_) September 25, 2020
And Trump’s idiot son lost in court as well. Judge orders Eric Trump to meet with N.Y. attorney general’s investigators by Oct. 7:
A state judge on Wednesday ordered Eric Trump to be deposed no later than Oct. 7 in the New York attorney general’s examination of the Trump Organization’s financial practices, rejecting a protest by President Trump’s son, who has said he is too busy to meet with investigators until after November’s election.
“This court finds that application unpersuasive,” Engoron said, referring to Eric Trump’s stated need to put off an interview until mid-November. He added that he felt Eric Trump’s attorney had cited no legal authority to support a bid to delay the deposition.
“Neither petitioner nor this court is bound by timeliness of the national election,” the judge said.
The judge also ordered that the Trump Organization and related business entities that were withholding documents and claiming attorney-client privilege proceed with producing records to the attorney general.
The lawsuit was filed in August by New York Attorney General Letitia James (D), after lawyers in her office said they had hit a roadblock with attorneys for the Trump Organization and other potential witnesses in their pursuit of testimony and documents.
A lawyer for Eric Trump did not respond to requests for comment Wednesday. It is unclear whether he will appeal the judge’s order.
Oh, c’mon, you know that’s what he will do. Abusing the law is what the Trump crime family does.
The Trump crime family is going to be systematically taken apart brick-by-brick starting next year. I would encourage prosecutors to use the RICO statute against this criminal enterprise to seize whatever financial assets they can locate and recover before sending this crime family to prison.