An appeals court panel agreed Tuesday to delay Manhattan prosecutors’ effort to obtain President Donald Trump’s financial records, a decision that could likely punt resolution of the issue into early October — and possibly past the Nov. 3 election.
Following a morning oral argument session held by telephone, a three-judge panel issued an order granting Trump lawyers' request to block Manhattan District Attorney Cyrus Vance from accessing the disputed documents until the 2nd Circuit Court of Appeals resolves the issue.
The court's one-page order offered no rationale for the stay, but set a schedule for legal filings in the appeal over the next few weeks, followed by arguments September 25.
During the court session, Trump’s personal attorney William Consovoy urged the judges to prevent Vance from immediately accessing the documents, which Vance has said he urgently needs to pursue potential criminal activity involving the Trump Organization.
One of the three judges, John Walker Jr., sounded particularly receptive to arguments from Trump’s lawyers that grand jury subpoenas Vance’s office issued are too broad.
“It has the feeling of overbreadth,” said Walker, an appointee — and first cousin — of the late President George H.W. Bush.
Although the Supreme Court issued a ruling in July unanimously rejecting Trump’s claims of absolute immunity from such criminal investigations while in office, Walker stressed that the opinion still endorsed “heightened respect that’s due the president” and called for “necessarily meticulous review.”
Walker also questioned Vance’s need to pursue information from abroad, although Manhattan-based prosecutors have long prized their ability to use New York’s role as a financial nerve center to assert jurisdiction over transactions that span the globe.
“It just seems to me that it's really very broad. … You’re asking [about] activity in Europe and Dubai and so forth. You’re a prosecutor in New York — in New York County, specifically,” Walker said.
Vance’s general counsel, Carey Dunne, said it is commonplace for the DA’s office to probe alleged wrongdoing in business dealings worldwide.
“There’s nothing unusual about our office asking about entities out of state or foreign transactions. New York City is a center of worldwide commerce,” Dunne said.”There’s a lot of international financial activity we have jurisdiction over.”
The other two judges on the panel — Clinton appointee Robert Katzmann and Obama appointee Raymond Lohier — gave fewer hints about their views of the substance of the Trump legal team’s arguments.
However, there seemed to be at least some openness among the judges to giving Trump’s lawyers time to fully brief the legal issues before the appeals court on an expedited basis, which could take the better part of a month.
At the conclusion of the roughly 30-minute argument session, Katzmann promised the panel would issue a decision on the president’s stay request by the end of the day.
Walker’s views could ultimately be of little significance on anything besides the timing of the case. Although he was on the panel that decided to grant the stay, he may not be one of the three judges assigned to rule on the merits of Trump’s appeal.
If Trump ultimately fails to win relief from the 2nd Circuit, his lawyers have already indicated they plan to take the dispute to the Supreme Court for a second time. That could leave the justices facing a politically sensitive emergency request from the president with just weeks or even days to go before Election Day.
While such a delay seems like an obvious goal for the president’s lawyers, Consovoy insisted Tuesday that his side is not trying to drag out the proceedings.
“Throughout this case, we have always accepted, and not resisted, expedited review,” he said.
Vance issued a subpoena a year ago for documents held by financial institutions connected to Trump, as well as overseas affiliates. Trump’s team initially claimed the president was exempt from such demands for as long as he remains in office, but that argument struck out in the Supreme Court, which turned aside his claim of “absolute immunity.”
However, the justices ruled that Trump may fight the subpoena on other, largely more conventional grounds, which triggered another, faster-paced round of litigation.
Within days, Trump’s team renewed its argument in federal district court, arguing that the subpoena is an overbroad fishing expedition issued for political purposes. The lower court judge, Victor Marrero, said the new claims had no merit and quickly ruled in Vance’s favor, tossing out Trump’s suit. But the appeals court appears poised to slam the brakes again.
Dunne told the three-judge panel that Consovoy’s new claims about the subpoena had no factual basis and the Trump legal team has presented no evidence to support claims of bad faith, he said. And further delays, he argued, hurt the DA’s ability to pursue potential crimes.
Dunne also stressed, as the DA’s office has repeatedly signaled in court filings in recent weeks, that the office’s investigation is not limited to probing the so-called hush money payments made in 2016 to women who appeared to be considering claiming sexual liaisons with Trump.
“We have tried to spell out, consistent with grand jury secrecy, all along, and I can represent to the court now, that each of the category of documents that was sought is directly relevant to a subject matter of our inquiry and, importantly, virtually all of those subject matters have been previously identified in public reports as examples of possible corporate wrongdoing,” the DA’s office lawyer said.
Dunne said Trump hadn’t shown any impropriety on the part of Vance’s office and that “the burden doesn’t shift to the prosecutor” to justify all aspects of the subpoenas just because Trump objected.
Lohier said he was worried that giving Trump the ability to continue to pursue his complaints would lead to grand juries at all levels being “mired in civil litigation.”
However, Consovoy said challenges to state grand jury proceedings in federal court are and will remain a rarity, but that, as president, Trump has the right to take the issue before federal judges. “I do not think this is the ordinary situation,” Trump’s attorney said.
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