Second Circuit Gets Immediate Appeal After US Judge Dismisses Trump Challenge to Subpoena of Tax Returns
Within about 90 minutes of the district judge's decision, the Second Circuit granted a temporary administrative stay pending expedited review by the court. A date for the hearing was not immediately set.
October 07, 2019 at 09:28 AM
5 minute read
The original version of this story was published on New York Law Journal
President Donald Trump's lawsuit challenging a Manhattan grand jury subpoena seeking his tax records was immediately appealed to the U.S. Court of Appeals for the Second Circuit after a district judge dismissed the action Monday.
Shortly after getting the case, the Second Circuit entered a temporary administrative stay.
U.S. Senior District Judge Victor Marrero filed a 75-page order dismissing the case just before 9 a.m. Monday, and Trump's lawyers immediately filed an emergency notice of appeal.
Within about 90 minutes of the district judge's decision, the Second Circuit granted a temporary administrative stay pending expedited review by the court. Both sides proposed briefing schedules, with Manhattan DA Cyrus Vance Jr. calling for oral arguments within a week.
Late Monday, the court set out a briefing schedule slower than Vance's request but slightly faster than Trump's proposal.
Trump's brief and an amicus brief from the U.S. Department of Justice will be due Friday at 5 p.m., according to a Second Circuit clerk. Vance's brief is due Oct. 15 at 5 p.m., with Trump's reply due two days after that. Arguments will be scheduled the week of Oct. 21 at the earliest. The temporary administrative stay will remain in effect until arguments are over.
The Second Circuit appeal comes after Trump's lawyers set a deadline for Marrero to rule.
A letter Friday from Trump lawyer William Consovoy of Consovoy McCarthy declared that, if Marrero had not issued any ruling on Trump's motion for a stay, temporary restraining order or injunction by 9 a.m. Monday, the president's lawyers would immediately appeal to the Second Circuit.
After receiving Consovoy's letter, Marrero closed the record of the case in the Southern District of New York and asked that no further submissions be sent.
Danny Frost, a spokesman for the Manhattan DA's office, confirmed early Monday that New York County prosecutors took no action in the case over the weekend.
The current stay in the case was set to expire at 1 p.m. Monday, but Consovoy wrote that if Marrero issued a ruling after 9 a.m., the president would not have time to seek relief before his financial information was exposed. Trump's accounting firm, Mazars USA, had agreed to hand-deliver an initial round of documents to the grand jury at 4 p.m. on the day the stay ended.
Trump sued Mazars and Vance in September in an attempt to block the release of his tax returns to the grand jury. The president's lawyers have argued he is immune from district attorney investigation and prosecution due to the nature of his office, while Vance's lawyers defended the broad investigative power of grand juries and noted that materials delivered to a grand jury proceed in secret.
Marrero decided he had to abstain under Younger v. Harris, the 1971 U.S. Supreme Court decision setting out when federal courts can and cannot intervene in state cases.
In case the Second Circuit disagrees on the issues of forum discussed in Younger, Marrero went on to discuss the merits of Trump's argument for presidential immunity, finding that his motions for injunctive relief should be dismissed in a court with appropriate jurisdiction.
"The notion of federal supremacy and presidential immunity from judicial process that the President invokes, unqualified and boundless in its reach as described above, cuts across the grain of these constitutional precedents," Marrero wrote.
The writers of the U.S. Constitution were careful in "shunning" the all-encompassing immunity possessed by the British king, making sure American presidents would not have similar power, Marrero wrote.
In rulings since then, the judge wrote, courts have found that presidents are not immune from civil suits involving private conduct prior to inauguration, from subpoenas related to the conduct of other people or from providing testimony in court related to private disputes involving other people.
Memos from the U.S. Department of Justice supporting presidential immunity should not be given as much legal weight as the president gives them, Marrero wrote.
In a tweet Monday morning, Trump described the case as unprecedented.
The Radical Left Democrats have failed on all fronts, so now they are pushing local New York City and State Democrat prosecutors to go get President Trump. A thing like this has never happened to any President before. Not even close!
— Donald J. Trump (@realDonaldTrump) October 7, 2019
Vance's office declined to comment on Marrero's decision.
This is a developing report.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllAn ‘Indiana Jones Moment’: Mayer Brown’s John Nadolenco and Kelly Kramer on the 10-Year Legal Saga of the Bahia Emerald
Travis Lenkner Returns to Burford Capital With an Eye on Future Growth Opportunities
Legal Speak's 'Sidebar With Saul' Part V: Strange Days of Trump Trial Culminate in Historic Verdict
1 minute readTrending Stories
- 1Chief Judge Joins Panel Exploring Causes for Public's Eroding Faith in NY Legal System
- 2Pogo Stick Maker Wants Financing Company to Pay $20M After Bailing Out Client
- 3Goldman Sachs Secures Dismissal of Celebrity Manager's Lawsuit Over Failed Deal
- 4Trump Moves to Withdraw Applications to Halt Now-Completed Sentencing
- 5Trump's RTO Mandate May Have Some Gov't Lawyers Polishing Their Resumes
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250