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Trump Lawyers Once Again Cross Their Fingers, Ask Supreme Court to Shut Down Criminal Subpoena for President’s Tax Returns


The president’s lawyers, as promised and expected, asked the Supreme Court to intervene in Trump v. Vance for the second time. The lawyers want the high court to accept President Donald Trump’s claims that he is the victim of partisan harassment as plausible on their face and issue an emergency stay preventing the enforcement of Manhattan DA Cy Vance’s criminal subpoena pending the court’s decision on another petition.

In July, the Supreme Court ruled in Trump v. Vance 7-2 that the president was not absolutely immune to the state criminal process. This decision, which included suggestions for the president on how to argue against the Vance subpoena, was sent back to the district court on an expedited basis. Here’s what SCOTUS said Trump could argue [emphasis ours]:

A President may avail himself of the same protections available to every other citizen, including the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth. When the President invokes such protections, “[t]he high respect that is owed to the office of the Chief Executive . . . should inform the conduct of the entire proceeding, including the timing and scope of discovery.” Clinton, 520 U. S., at 707. In addition, a President can raise subpoena-specific constitutional challenges in either a state or a federal forum. As noted above, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. And he can argue that compliance with a particular subpoena would impede his constitutional duties.

Neither the district court judge nor the appellate court circuit judges (all of them appointed by Democrats) were in the least bit convinced by the president’s claims that the subpoena of third party Mazars USA for several years of Trump’s financial records constituted harassment. The courts were also not convinced by the assertion that DA’s demands are extremely overbroad and unreasonable since Vance is really only interested in investigating the hush payments ex-Trump lawyer Michael Cohen made before the 2016 election.

Vance has repeatedly argued that there is more than the Cohen issue to investigate, citing news reports that indicate that a “criminal tax fraud” investigation is warranted. “These reports have identified transactions spanning more than a decade, involving individual and corporate actors who were based in New York County,” Vance said.

The president’s lawyers insist, on the contrary, that Trump’s “overbreadth and bad-faith claims are plausible on their face”:

It follows that the President’s overbreadth and bad-faith claims shouldn’t have been dismissed. A grand jury’s power is broad, but “not unlimited.” R. Enterprises, 498 U.S. at 299. Grand jury subpoenas, like all “forced production of documents by subpoena,” must be reasonable, not oppressive, and not “‘out of proportion to the end sought.’” Application of Harry Alexander, Inc., 8 F.R.D. 559, 560 (S.D.N.Y. 1949) (quoting McMann v. SEC, 87 F.2d 377, 379 (2d Cir. 1937) (L. Hand)). A subpoena that is “too sweeping” in scope cannot “be regarded as reasonable.” Hale v. Henkel, 201 U.S. 43, 76 (1906). A subpoena is overbroad if there is “no reasonable possibility” that a “category of materials” requested will yield “information relevant to the general subject of the grand jury’s investigation.” R. Enterprises, 498 U.S. at 301. At bottom, grand jury subpoenas must be “properly tailored,” Vance 140 S. Ct. at 2426, and may not be “‘arbitrary fishing expeditions,’” id. at 2428 (quoting R. Enterprises, 498 U.S. at 299).

Separately, a subpoena is invalid if it “is motivated by a desire to harass” or is issued “in bad faith.” Id. (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975)). Naturally, issuing a subpoena to engage in “harassment or other prosecutorial abuse” is “improper.” In re Grand Jury Proceedings, 33 F.3d 1060, 1063 (9th Cir. 1994). A subpoena is also “abusive” if it’s limitless in scope, Burns v. Martuscello, 890 F.3d 77, 92 (2d Cir. 2018), or if the prosecutor fails to make “a reasonable effort to request only those documents that are relevant and non-privileged, consistent with the extent of its knowledge about the matter under investigation,” In re Grand Jury Subpoena, JK-15-029, 828 F.3d 1083, 1089 (9th Cir. 2016). No “law”—federal or state—allows the District Attorney to subject the President to such “abuse.” Vance, 140 S. Ct. at 2428; accord id. at 2433 & n.1 (Kavanaugh, J., concurring in the judgment).

Trump lawyers, touting their “high-level observations,” argued that Vance is clearly acting in “bad faith” because he “essentially copied” a subpoena cooked up by congressional Democrats. From here, the stay applicants again said Vance’s investigation is “about the Cohen payments” (even as Vance insists there is reason to investigate the president and the Trump Organization for possible crimes “such as Scheme to Defraud (Penal Law § 190.65), Falsification of Business Records (Penal Law § 175.10), Insurance Fraud (Penal Law §§ 176.15-176.30), and Criminal Tax Fraud (Tax Law §§ 1803-1806), among others”).

“[T]he District Attorney issued a broad subpoena seeking all financial records, documents, and communications from every business associated with the Trump Organization over the course of nearly a decade.  In fact, the subpoena reaches entire categories of records that have nothing to do with those 2016 payments—for example, an accounting of the assets held in 2011 by entities in California, Illinois, or Dubai, and documents related to a lease between the federal government and a D.C. hotel,” Trump lawyers said. “Accepting these factual allegations as true, the subpoena is plausibly overbroad.”

[Image via MANDEL NGAN/AFP via Getty Images, ANGELA WEISS/AFP via Getty Images]

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