US Judge Dismisses Trump Challenge to Subpoena of Tax Returns; 2nd Circuit Gets Immediate 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. A date for the hearing was not immediately set.
October 07, 2019 at 09:28 AM
5 minute read
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.
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