SDNY v TRUMP

Score another victory for the good guys. Let’s back up a bit. Almost a year ago, Cyrus Vance, the District Attorney of New York County, served a grand jury subpoena on Trump's accountant, Mazars. The subpoena demanded production of business records going back eight years, including Trump's family jewels, his tax returns. In September, 2019, Trump sued to quash the subpoena on the ground that as president, he was absolutely immune from responding to a subpoena served by a state district attorney.

SDNY District Court Judge Victor Marrero wrote a brilliant 75-page opinion rejecting the immunity claim. 

By the way, even though this was a demand for Trump's pre-election business documents, Bill Barr's DOJ joined Trump's lawyer in seeking to quash the subpoena. (Was that legal? So what?)

The Second Circuit affirmed the Marrero decision. Surprise, surprise, Trump thought he would succeed in running out the clock by taking an appeal to the Supreme Court.

While most legal analysts thought the Court would reject the appeal as lacking in merit, they took the case and in June, 2020 held that Trump was not above the law, he was not immune from process issued by state grand juries.

 

But the Supremes dashed any hopes Trump would be required to turn over his tax returns before the election: it sent the case back to the District Court to permit Trump to argue that the subpoena was too broad, and uttered in bad faith.

Within days of that decision, District Judge Marrero brought the parties in and asked if there were anything more he need do. “Yes," asserted Trump's lawyer, "I will now move to quash the subpoena on the grounds that it is overly broad and in bad faith." He did that by filing an amended complaint, seeking relief on those grounds.

 

Marrero put the case on a short timetable. Trump argued  breadth and bad faith. Vance's response was filed on August 14. He urged that the Supreme Court had held there is no heightened standard the District Attorney need meet in crafting a subpoena just because the respondent was President of the United States. The grand jury had broad exploratory powers, the law granted grand jury subpoenas a presumption of validity, and Trump's litigation strategy was delay, delay, delay.

Within seven days of the filing of Vance's response, Judge Marrero issued a 103-page opinion. He basically disassembled every argument Trump's lawyer made. He ruled that Trump‘s amended complaint alleged no facts showing that the subpoena was overbroad. Just because one of Vance's aims was to dig into whether there were any state law violations in the manner in which Trump used his lawyer Michael Cohen to make hush-money payments to two women who alleged sexual adventures with Donald, does not mean that there were no documents that might be relevant to other things in which the grand jury might be interested.

Marrero even gave us an example of what may very likely come out of the Vance investigation. He wrote:

“For example, by comparing the Trump entities' final tax returns, financial statements, and independent auditor's reports ... to draft versions, and to information relied upon to prepare the returns and reports, the grand jury can assess whether any Trump entity has falsely recorded any financial transaction in violation of New York law."

And as to Trump's argument the subpoena was in bad faith because it copied the exact words of a Congressional subpoena, Marrero ruled that hardly was evidence of bad faith. The documents sought by Congress and by the New York grand jury might be relevant both to congressional purposes as well as to state law enforcement purposes. There is “dual sovereignty“ in the United States; a single act can give rise to both state and federal crimes.

 

Finally, the judge declined to give Trump yet another bite at the apple by serving a third complaint. The court noted that Trump used the route of filing a complaint instead of a motion to suppress, – a technical matter but an important one. If Trump had made a motion to suppress he would’ve had to include all his factual proof in his moving papers. He chose, instead, to file a complaint which, under the rules, can be a much vaguer document. But in this instance, Marrero found the complaint's vague allegations were insufficient.

 

In denying the Trump application for another chance at drafting as sufficient pleading, the judge referred to the Vance argument that Trump's entire litigation strategy was delay. Marrero held:

“While the court need not find here that the President has actually acted in a dilatory manner, the District Attorney's repeated assertions plainly support a finding that further amendment would be unduly prejudicial to the District Attorney. ... Justice requires an end to this controversy.“

 

Next stop: the Second Circuit Court of Appeals, which, I suggest, will promptly affirm.

 

My guess is that’s the last stop on this train. The Supremes have already ruled on the law and sent the case back to the lower court to make factual determinations on the claim of overbreadth and bad faith. It is extremely unlikely that four Justices, even on this Supreme Court, would entertain a review of the findings made by the District Court and affirmed by the Circuit Court.

That means while it is unlikely, it is still possible for Vance to get his hands on Trump's tax returns and business records during the month of September.

Will we see them? Grand jury documents are secret -- except to the extent they are revealed in an indictment that is a public document.

Could we have an October Surprise? If there’s one thing Trump has learned from all of the indictments and litigation in the State and Federal Courts located in New York, it’s “Don’t screw with New Yorkers.“

 

And changing the Trumpian residence to Florida just ain't gonna help with that problem.

 

A bientot.

 

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