The Supreme Court’s 7-2 decision to kick the question of Donald Trump’s tax returns back to the beginning all but ensured that no one would see them before the election. A new decision by the Second Circuit to stay another lower-court ruling to release them has made that even more likely. The appellate panel issued a stay on the lower-court ruling while Trump’s legal team prepared an appeal, frustrating Cyrus Vance yet again in his quest to get access to Trump’s financial records.
Vance’s office didn’t go down easily, though:
The appeals court’s clerk of the court said that “it is hereby ordered that a stay of the district court’s order and judgment pending determination of the appeal is granted.” The merits argument of the appeal will be held on Sept. 25, with Trump’s appeal brief due on Sept. 11, Vance’s brief due by Sept. 21, and Trump’s response due by Sept. 24. All this makes it increasingly unlikely that Vance will gain access to Trump’s financial records before the November election.
The New York prosecutor is seeking the documents as part of an investigation into potential state crimes relating to hush-money payments made to porn star Stormy Daniels during the 2016 election. The president’s legal team has argued that the Constitution’s supremacy clause prevents investigations into a sitting president, a notion with which lower courts have disagreed.
The president’s appeal this time won’t rest on specious immunity claims, of course. The Supreme Court shot that down unanimously at the end of its term this year, but left open the potential to argue against the subpoena on both normal grounds as well as those related to Trump’s execution of his constitutional duties:
A President can raise subpoena-specific constitutional challenges, in either a state or federal forum. As previously noted, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. See supra, at 17. This avenue protects against local political machinations “interposed as an obstacle to the effective operation of a federal constitutional power.”
That’s still a heavy lift, and it has to relate to the specific circumstances of the subpoena. However, the Supreme Court’s 7-2 decision leaves that opening, and the appellate court apparently wants to give the new arguments a closer look. Trump could argue that Vance could get his information from other sources, or that the subpoena is politically designed to interfere with his duties. It’s going to be tough to prove, but it’s still an available opening.
Vance insisted that the delays have had an irreparable effect on his investigation, which could be interpreted to look a bit political:
Vance’s lawyers had told the appeals court that delay in the enforcement of its subpoena had already “imposed real costs on the Office — for nearly an entire year, the grand jury’s investigation has been substantially hampered.” The district attorney’s team argued that Trump’s legal argument “no longer contains difficult questions of constitutional law” and “is no more than a run-of-the-mill attack.” Vance’s team said that “continued delay of the grand jury’s investigation is unwarranted, and it would significantly impair the Office’s ability to discharge its constitutionally protected duty to investigate and, where appropriate, prosecute violations of New York law.” He claimed that “delay can lead to the loss of evidence, fading memories, and the running of statutes of limitation.”
All of that with a delay of three or four weeks? Come on, man. That’s a nonsense argument, one that should embarrass Vance to make. The only real clock running in September is the election clock, and if that’s what bothers Vance, then Trump’s argument starts looking a little better. Besides, people have recourse to appeals courts for subpoenas and judicial rulings, so if prosecutors don’t build that into their timelines, that’s not on the respondent to suffer.
And, Trump’s legal team argues, Vance could have solved the problem by promising to keep the records under seal:
In countering those arguments, Trump’s lawyers said that “the Court cannot provide any relief if the District Attorney discloses the records while this appeal is ongoing” and that New York law “doesn’t strictly forbid the disclosure of records produced to the grand jury.” Trump’s team said that “this could include disclosure as part of an indictment or a grand-jury report as well as to third parties” and that “for the District Attorney’s argument to even get out of the starting gate, then, he would need to commit to keep these records confidential during the appeal” but that “he has made no such commitment.” The president’s lawyers said that “there is no doubt that the President will suffer irreparable harm” and claimed that “it is disclosure of these records to the government — not just to the public — that causes injury.”
Best guess: Trump loses this appeal, and it heads back to the Supreme Court with the stay in place, or with the Supreme Court imposing a new one while deciding whether to grant cert. The real question will be whether Vance is still pushing this case after the first week of November. After that, no matter what happens in the election, the political issues will be moot.