Politics Appeals court judges skeptical of Trump effort to block release of financial info
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President Donald Trump’s drive to block Manhattan prosecutors from accessing a large swath of his tax and financial records got a chilly reception Friday from a federal appeals court.
Three judges on the New York-based 2nd Circuit U.S. Court of Appeals repeatedly questioned Trump attorney William Consovoy’s claim that Manhattan District Attorney Cyrus Vance’s grand jury subpoena for Trump’s records was “overbroad” and issued in retaliation for the Trump organization’s resistance to an earlier demand for Trump’s tax returns.
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Rather, they said, it was Consovoy who seemed to be misconstruing long-settled understandings about how grand jury subpoenas and investigations work.
“Are you asking us to change the way grand juries have done their work for time immemorial just because we’re dealing with somebody who’s president of the United States?" wondered Judge Robert Katzmann, an appointee of President Bill Clinton.
During the virtual arguments before the New York-based court, Consovoy insisted that the demand for eight years of Trump’s tax returns, as well as information on businesses from Washington to Indonesia showed a probe unmoored from any legitimate bounds.
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“If you were to look up the definition of a fishing expedition, this is it,” Consovoy declared. “The district attorney isn’t focused on anything.”
The one judge on the panel who sounded somewhat sympathetic to Trump’s arguments, Obama appointee Raymond Lohier, suggested at one point narrowing the subpoena from eight years of records to five and excluding foreign entities.
“Would that be something you could live with?” Lohier asked.
“I don’t think so,” Consovoy replied, saying that wouldn’t address the president’s claim of retaliation or his argument that issues relating to his Washington hotel were no business of the Manhattan-based D.A.
The unwillingness to compromise seemed to underscore that the critical political question in the dispute at the moment may be less whether Vance prevails in his quest, but when.
While Vance’s office has been careful not to tie the case to any political calendar or considerations, if his team can obtain the records in the next few weeks, it is possible some criminal charges could be brought before the November election and have some impact on the presidential race.
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But that window is rapidly closing, particularly given the unusually high number of voters expected to vote early this year due to the coronavirus pandemic.
Vance lawyer Carey Dunne steered clear of imputing any political urgency to the fight, which stalled for more than half a year as the Trump team took a claim of absolute presidential immunity to the Supreme Court. The justices unanimously turned that argument down in July, but said Trump could still pursue other arguments open to every litigant.
Dunne did suggest that the Trump team’s tack was transparent. “It’s basically achieving delay,” he said.
The sharp questions from the judges for Consovoy portend a likely ruling that Vance may enforce a subpoena against Mazars USA, Trump’s accounting firm, in what appears to be a wide-ranging investigation into the Trump Organization’s business practices.
House investigators have been seeking similar information, following public testimony in early 2019 by former Trump attorney Michael Cohen suggesting that Trump routinely inflated his assets to obtain credit. But the House’s effort has been mired in litigation for more than a year and appears unlikely to yield results before the 2020 election.
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Indeed, one of Trump’s complaints in the case before the appeals court Friday is that Vance’s subpoena is overbroad because it simply mimics the Congressional subpoena. But that argument seemed to have little resonance with the judges.
Trump’s legal team has argued that the Manhattan D.A.’s investigation is focused solely on so-called “hush money” payments Michael Cohen orchestrated during the 2016 campaign to women claiming sexual encounters with Trump, because that’s how an initial subpoena seemed to be framed. But Dunne rejected that conclusion as a “non-sequitur.”
“There’s no logical reason to assume the earlier subpoena define the scope of the investigation, as opposed to the later subpoena,” Dunne said.
Consovoy insisted that it was “plausible” that the probe was still limited in that way, so the latest subpoena should be kept on hold while the president’s lawsuit proceeds, but
Dunne called that argument “preposterous.”
“It’s not true,” he said. “I can’t help but say we’re through the looking glass here.”
The judges also seemed to struggle Friday with the Trump team’s claim that the investigation has remained static.
“As we, I think, all know, grand jury investigations grow and more information comes in,” Lohier said. “That’s the natural presumption.”
The third judge on the panel, Clinton appointee Pierre Leval, seemed the most skeptical of the Trump team’s arguments. Leval said he saw nothing at all strange about the D.A. seeking information on Trump’s global business income since it would all have to be reported on his New York tax return.
“To say that a district attorney and grand jury investigating fraud in a tax return can only look at business operations that were conducted in Manhattan and not Queens, not Washington, D.C., not Indonesia, and not any of the places covered by the tax returns that seems to me to be farfetched,” Leval said.
If the appeals court panel upholds the lower court decision tossing out Trump’s renewed suit over the subpoena, the president could ask for review by the full bench of the 2nd Circuit, but that isn’t commonly granted.
Trump could also ask the Supreme Court to weigh in on the case a second time, but he’d likely need some form of emergency relief from the 2nd Circuit or the Supreme Court to prevent Vance from enforcing the subpoena against the accounting firm believed to hold Trump’s records.
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