Ginsburg Stays 2nd Circuit Ruling Requiring 'Prompt Compliance' With Subpoenas for Trump Bank Records
Ginsburg's order, which freezes in place for at least a week litigation over the subpoenas, came hours after a filing that argued the office of the presidency should be given special consideration in regard to subpoena requests, and said there was a "fair prospect" Tuesday's decision by the U.S. Court of Appeals for the Second Circuit would be overturned.
December 06, 2019 at 04:59 PM
4 minute read
The original version of this story was published on New York Law Journal
U.S. Supreme Court Associate Justice Ruth Bader Ginsburg late Friday granted an emergency order sought by President Donald Trump's attorneys to stay a Manhattan federal appeals court's ruling earlier this week requiring Deutsche Bank and Capital One's "prompt compliance" with congressional subpoenas for the president's financial records.
In a one-page order, Ginsburg stayed the effect of the decision, issued by the U.S. Court of Appeals for the Second Circuit, until 5 p.m. Eastern time on Dec. 13. She asked for responsive pleadings from the U.S. House of Representatives by 11 a.m. Eastern time on Dec. 11.
Ginsburg's order, which freezes the dispute in place for a week, came hours after William Consovoy, of Consovoy McCarthy, a personal lawyer for Trump, filed the emergency petition.
The petition in the case over subpoenas to Deutsche Bank and Capital One came a day after a similar motion asking the high court to review another ruling, this one from the U.S. Court of Appeals for the D.C. Circuit, which found a similar U.S. House of Representatives subpoena of Trump's accounting firm, Mazars USA, to be a lawful exercise of congressional oversight.
The Supreme Court last month temporarily blocked enforcement of the Mazars subpoena, which had been upheld by a split panel of the D.C. Circuit in November.
On Friday, Consovoy and Jay Sekulow, another lawyer on Trump's personal legal team, said that House lawyers had rejected his request to speed up the appeals process in the Deutsche Bank litigation, in exchange for a stay. The two cases, the lawyers said, raised the same issues of separation of power, and the production of documents in Deutsche Bank's possession should not be compelled until the high court has had a chance to weigh in.
"The issue at this stage is straightforward: whether the president will be allowed to petition for review of an unprecedented demand for his personal papers, or whether he will be deprived of that opportunity because the committees issued these subpoenas to third parties with no incentive to test their validity," they said. "This choice should be easy."
The filing argued that the office of the presidency should be given special consideration in regard to subpoena requests, and said there was a "fair prospect" Tuesday's decision by the Second Circuit would be overturned.
The document demands, it said, were not made for a proper legislative purpose, and the committees lacked the statutory authority "that should be required to subpoena the president's records given the serious constitutional issues this controversy raises."
A divided panel of the Second Circuit found there was a "clear and substantial" public interest behind enforcing a set of congressional subpoenas to Deutsche Bank.
"The committees' interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a chief executive's distraction arising from disclosure of documents reflecting his private financial transactions," Second Circuit Judge Jon Newman wrote on behalf of the majority.
Circuit Judge Debra A. Livingston, however, said in a dissent that she would have sent the case back to the district court "to examine the serious questions that the plaintiffs have raised."
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