by Marty Lederman [Georgetown Law]
Two cases currently before the Supreme Court involve whether the Constitution prohibits subpoenas issued to Donald Trump’s accounting firm, Mazars USA, LLP, requiring Mazars to provide non-privileged financial records relating to Trump and certain of his business entities.
The first of those cases, Trump v. Vance, No. 19-635, involves a subpoena issued to Mazars by a New York grand jury. The U.S. Court of Appeals for the Second Circuit rejected Trump’s constitutional objection, and Trump has petitioned for certiorari. Trump will file his cert.-stage reply brief later today—thereby completing the briefing—and the Court could consider the petition as early as December 6, at the Justices’ next conference. [UPDATE: Here’s the reply brief. Nothing new of note in it.]
The second case, Trump v. Mazars USA, No. 19A545, involves a subpoena the House of Representatives Committee on Oversight and Reform issued to Mazars back in April. (The New York grand jury subpoena is almost identical to, and was patterned upon, the House’s earlier subpoena.) The U.S. Court of Appeals for the D.C. Circuit rejected Trump’s constitutional objection, and Trump will likely petition for cert. in that case any day now. In the meantime, Trump has filed an application to the Chief Justice asking for a stay of the court of appeals’ mandate. If the Chief Justice and/or the Court declines to issue such a stay, Mazars will be required to turn over the records to the House imminently, i.e., upon issuance of the mandate. (The Chief Justice issued an interim “administrative stay” last week to enable the Court to consider the mandate-stay motion.)
The Court will probably issue its decision on Trump’s application for a stay in Mazars shortly, perhaps as soon as today. [UPDATE, evening of 11/25: The Court, without recorded dissent, granted the application to stay the mandate, and gave Trump until noon next Thursday, December 5, to file his petition. The House should be able to file its opposition in time for the Court to consider the petition at its December 13 Conference.]
There’s a third, related case, too, which hasn’t yet reached the Court but might be there soon: In August, the U.S. Court of Appeals for the Second Circuit (Hall, Livingston & Newman, JJ.) heard oral argument in Trump v. House Committee on Financial Services, which involves Trump’s constitutional challenge to subpoenas that two House committees issued to two of Trump’s banks (Deutsche Bank and Capital One), requiring them to turn over financial records of Trump and two of his children. The court of appeals still has not issued its decision in that case, but when it does so the losing party almost certainly will quickly ask the Supreme Court to hear that case, too.
In this post, I’ll address three things: (i) the importance of the three cases; (ii) the weakness of Trump’s constitutional arguments in the two Mazars cases before the Court; and (iii) what the Court is likely to do with those two cases.
How Important Are the Cases?
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