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Appeals Court Refuses to Block Order Enforcing Subpoena for Trump’s Tax Returns, Putting Spotlight Back on SCOTUS


The U.S. Court of Appeals for the Second Circuit on Friday declined to issue an administrative stay of a district court order enforcing Manhattan DA Cy Vance’s subpoena to Mazars USA for President Donald Trump’s tax returns. The timing of the move suggests that U.S. Supreme Court will once again play a starring role in the dispute.

“Appellant, President Donald J. Trump moves for a stay pending appeal and an administrative stay of the district court’s dismissal of his challenge to the Mazars subpoena. To the extent Appellant seeks an immediate administrative stay, that request is DENIED,” the court said. “The motion for a stay pending appeal shall be heard before a three-judge panel on Tuesday, September 1, 2020. Appellees’ opposition to the motion must be filed by 5 p.m. on August 27, 2020, and Appellant’s reply, if any, must be filed by 5 p.m. on August, 31, 2020.”

Here’s what you need to know.

U.S. District Judge Victor Marrero issued a lengthy ruling on Thursday, Aug. 20, in the Southern District of New York, dismissing Trump’s lawsuit with prejudice. That prompted the court’s clerk to note that the president’s “case is closed” in the New York court system. Then, earlier on Friday, Trump moved for a stay pending appeal to the Second Circuit. Marrero denied that, noting that the cases the president’s lawyers relied on “do not pertain to ongoing criminal investigations, let alone investigations by grand juries who are sworn to secrecy.”

Now things get interesting: Vance previously said he would wait at least seven days after Marrero’s ruling to enforce his subpoenas against Trump’s accounting firm. If he means calendar days, that brings us to Aug. 28. This is the day after Vance is supposed to submit his opposition to Trump’s motion for a stay pending appeal but before scheduled Sept. 1 arguments. Given the denial of the administrative stay, the district court’s order remains active.

Legal experts believe that the likely scenario is that Trump’s lawyers will ask the Supreme Court for a stay—anticipating that Vance may act on the window of opportunity.

The high court has granted a stay before in this case.

The Supreme Court, in a 7-2 decision back in July, said President Trump was not absolutely immune to the state criminal process, meaning Vance’s case could move forward.

“Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President,” the Supreme Court held in Trump v. Vance.

Vance has sought to obtain President Trump’s tax returns from the president’s finance firm as part of a criminal investigation of the Trump Organization. According to the Manhattan DA, the Trumpworld investigation runs deeper than hush payments.

Judge Marrero didn’t waste any time restarting the case after the Supreme Court ruling, ordering both the Manhattan DA and Trump lawyers to submit summaries of arguments. Prosecutors in the Manhattan DA’s Office have stressed that time is of the essence, warning that “issues could arise in the near future concerning the applicable statutes of limitations” due to the “age of many of the transactions at issue in the grand jury’s investigation.” This could explain, in part, why the courts have been moving more swiftly.

The Supreme Court was amenable to Vance’s request to immediately send the judgment in Trump v. Vance to the lower courts, putting the ruling into effect sooner.

Colin Kalmbacher contributed to this report.

[Image via Alex Wong/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.