President Trump’s legal team told the courts on Wednesday that Trump intends to continue fighting against the New York grand jury subpoena targeting his financial documents and tax returns following his loss in the Supreme Court last week.
Trump’s counsel, William Consovoy, and Carey Dunne of the New York County District Attorney’s Office filed a 10-page joint submission with the U.S. District Court for the Southern District of New York on the need for further proceedings. The joint submission noted that the Supreme Court upheld the Second Circuit’s judgment in favor of Democratic Manhattan District Attorney Cyrus Vance and remanded the case to the Second Circuit, and that the Second Circuit then remanded the case to the Southern District of New York “for further proceedings.” The Manhattan court told Trump and Vance to “outline potential areas for further argument.”
A statement on behalf of Trump “on the need for further proceedings and potential areas for further argument” was submitted by Consovoy as part of the joint filing, arguing that “it is the President’s position that further proceedings are necessary.” Trump’s lawyer suggested that Trump “will file a Second Amended Complaint in which he will raise arguments that the Supreme Court held that he may make on remand” and if the district attorney responds, then Trump “should be permitted to develop a factual record in support of his claims.”
Trump’s lawyer said the Supreme Court had divided Trump’s possible continued arguments “into four basic categories”: first, that Trump “may argue that this subpoena is not a ‘properly tailored’ grand-jury subpoena”; second, that Trump “may argue that the subpoena ‘is motivated by a desire to harass or is conducted in bad faith’”; third, that Trump “may argue that the subpoena is meant ‘to manipulate [his] policy decisions or to retaliate against [him] for official acts’”; and fourth, that Trump “may argue that compliance … would impede his constitutional duties.” Trump’s attorney said that “the President intends to raise some or all of these arguments in his forthcoming Second Amended Complaint.”
In 2019, the New York County District Attorney’s Office served a grand jury subpoena on Mazars USA LLP, Trump’s personal accounting firm, demanding financial and tax records from the president and his businesses. Trump then sued the district attorney and Mazars in federal court to block the enforcement of the subpoena, arguing that it violated the separation of powers in the Constitution. The Supreme Court ruled last week that “Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.”
The 7-2 Supreme Court decision in Trump v. Vance was made with Chief Justice Roberts and Justices Ruth Bader Ginsburg, Sonya Sotomayor, Elena Kagan, Brett Kavanaugh, and Neil Gorsuch in the majority. Justices Clarence Thomas and Samuel Alito dissented.
A statement on behalf of Vance was also submitted by Dunne, who countered that “the President recites several arguments that the Supreme Court held a President might raise in the appropriate case, but each of these potential arguments must be understood first and foremost in the context of the Supreme Court’s rejection of a heightened standard for the issuance of a state criminal subpoena to a sitting President.”
Vance’s lawyer said: “While the District Attorney does not contest that the President should have an opportunity to advance additional ‘appropriate’ claims supported by factual allegations, consistent with the Supreme Court’s opinion, his challenges to the Mazars subpoena must be considered in light of the principle that a President making such challenges stands ‘in nearly the same situation with any other individual.’ The President’s proposal attempts to elide that standard.”
Vance argued that “except in extreme cases, the law does not permit the recipient of a grand jury subpoena to conduct discovery into the bona fides or motivations behind such a subpoena, and nothing in the Supreme Court’s decision suggests that this President should be able to do so here.”
“This is all a political prosecution,” Trump tweeted after last week’s ruling. “I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!”
The opinion by Roberts stated: “Two hundred years ago, a great jurist of our Court established that no citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”
Although Trump lost that Supreme Court battle, the fact that it has been remanded to the lower courts for more legal battles means that Vance might not see Trump’s tax returns until after November. Trump also largely won 7-2 in a similar Supreme Court case brought by House Democrats seeking his taxes.
