The Supreme Court of the United States on Monday, Feb. 22, denied Donald Trump a stay in Manhattan District Attorney Cy Vance’s case for the former president’s financial records.
Vance’s criminal investigation into Trump and his private business will continue on:
The Manhattan DA recently escalated his criminal probe with the hire of outside counsel Mark Pomerantz, a former federal prosecutor known for his expertise in untangling complex financial dealings and white-collar crimes. Pomerantz has already interviewed former Trump lawyer Michael Cohen. In recent months, it was also reported that Vance’s office interviewed former Deutsche Bank employees and employees with insurance broker Aon.
In Oct. 2020, the then-president’s lawyers asked the Supreme Court for the second time to shut down Vance’s criminal grand jury subpoena for Trump’s tax returns. Now that Trump has been out of office for more than one month, the Supreme Court declined to grant that request.
Recall that in July 2020 the Supreme Court ruled in Trump v. Vance 7-2 that the then-president was not absolutely immune to the state criminal process. This decision, which included suggestions for Trump 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, for instance, by Trump’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 Trump’s assertion that Vance was only interested in investigating the hush payments Michael Cohen made before the 2016 election. Vance repeatedly argued that there was 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 insisted, on the contrary, that Trump’s “overbreadth and bad-faith claims” were “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 was 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 was “about the Cohen payments” (even as Vance insisted there was reason to investigate the then-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.”
SCOTUS made no finding in Trump’s favor on Monday.
“The work continues,” DA Vance said in a laconic statement.
[Images via SAUL LOEB/AFP/ Getty Images, ANDREW CABALLERO-REYNOLDS /AFP/ Getty Images]
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