Update: The 2d Circuit has stayed enforcement of the NY Grand Jury subpoena of Trump tax records until the Court decides whether to affirm Judge Victor Marrero's dismissal of Trump's civil suit to block execution. In their "opening brief" filed on September 13 (in anticipation of oral argument on September 25) Trump's lawyers argue that they have plausibly alleged bad faith overreach by Manhattan District Attorney Cyrus Vance, Jr. It is a powerful argument because liberal pleading rules set a high bar for motions to dismiss a 42 USC 1983 civil rights suit under FRCP 12 (b)(6) for failure to state a claim.
A skilled former federal prosecutor, who Tweets under the nom de plume @legalnerd, makes a powerful analysis. If President Trump is to be treated - as said the Supreme Court - like any other citizen, he must be judged by applicable New York substantive law, not the pleading standards of the FRCP. Trump objects to the subpoena which is directed to tax records filed with government held by the accounting firm Mazars. New York denies standing to any citizen - here Trump - to challenge a Grand Jury subpoena to a third party - Mazars. See this thread:
1. Solid brief by @wconsovoy and team. Since 2CCA will review de novo, I don't know why they spent so much time attacking Judge Marrero's analysis. FWIW, I expect @ManhattanDA to respond as follows:https://t.co/63NBKXs5Ol via @NYLawJournal pic.twitter.com/VPYYRmIpvJ
— legalnerd (@alegalnerd) September 13, 2020
Donald Trump and his lawyers are at it again. Having firmly lost in the Supreme Court they have moved for an emergency stay on appeal from a 102 page opinion in which Judge Victor Marrero again refused to block Trump's accountants from complying with a subpoena to turn over the financial records subpoenaed by a Manhattan Grand Jury. Trump now seeks "emergency relief".
Trump has won the battle to prevent public disclosure of his tax returns before election day. But the Grand Jury of course has the power to do the two of things he presumably fears most: indict and thereby disclose probably illegal machinations by Trump and others working in his companies or on behalf of him.
Trump v. Vance- Trump seeks a stay of the order of dismissal of his 1983 action by Judge Marrero. The "emergency" motion for a stay is effectively the same injunction he has long sought. It is another version of the absolute immunity which he sought when he started a federal civil rights action (sic) to block the New York Grand Jury investigation of the finances of Trump and his companies. It was an end run around the state courts, trying to employ the narrow slice of federal cases in which bad faith state prosecutions may be enjoined. Trump failed in the U.S. District and Second Circuit Courts of Appeals. He failed at the Supreme Court too. But in Trump v. Vance, in an opinion by John Roberts, the Court remanded, rather than dismiss the action.
Returning to the District Court Judge Marrero again rejected Trump's ploy. He dismissed for failure to state a cognizable federal claim Trump's attempt via a second amended complaint to avoid the prosecutor's subpoena. Trump immediately filed in the Second Circuit, seeking an Emergency or Administrative Stay Pending Appeal. This move would buy him precious time: because if Mazars (the Trump accountants) turn over the records to the D.A. the horse would be out of the proverbial barn, enabling investigation and perhaps indictment to follow in the ordinary course.
But to be more precise: Marrero dismissed the Trump claim under Federal Rule 12(b)(6) for failure to state a claim. Failure by the Second Circuit to grant a stay would effectively moot the appeal of the dismissal order. That would trigger another trip to the Supreme Court which, landing in presumably sympathetic hands, could grant the stay request, pushing the resolution into the distant future, if the ordinary course of federal appellate litigation followed.
But the New York County District Attorney, joined by former Solicitor General Walter Dellinger, has filed an elegant brief, a Memorandum in Opposition to Plaintiff's Emergency Motion. Reframing the issue, he presses the Court of Appeals to put an end to Trumps's efforts to stall the inevitable order to turn over records to the Grand Jury. Trump seeks not a stay pending appeal, the D.A. argues, but an injunction staying the operation of a routine and ongoing judicial proceeding: a Grand Jury investigation.
Vance makes two key points: the Grand Jury's work has been obstructed for over one year. The Stay application continues that obstruction. Further the standards for issuance of a stay are not the same as an ordinary injunction or judgement because a stay here obstructs an ongoing judicial process (of which the grand jury is part): Vance thus argues:
...although Appellant describes the relief he seeks as a “stay pending appeal,” the substance of his request seeks the injunction of a presumptively legitimate subpoena issued by a New York County grand jury. “An injunction and a stay … serve different purposes.” Nken v. Holder, 556 U.S. 418, 428 (2009).
“[T]he extraordinary remedy of injunction … directs the conduct of a party, and does so with the backing of [the court’s] full coercive powers.” Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982))
A stay, by contrast, “operates upon the judicial proceeding itself” by “either … halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability.” Id. In other words, “[a] stay ‘simply suspend[s] judicial alteration of the status quo,’ while injunctive relief ‘grants judicial intervention that has been withheld by lower courts.’” Id. at 429 (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers)) ; see also Brown v. Gilmore, 533 U.S. 1301, 1303 (2001) (Rehnquist, C.J., in chambers) (“[A]pplicants are seeking not merely a stay of a lower court judgment, but an injunction against the enforcement of a presumptively valid state statute.”).
Appellant currently seeks from this Court the same relief prohibiting the Office from enforcing the Mazars Subpoena that the district court has now twice declined to enter, not an order halting or postponing any judicial proceedings below. The requested relief is particularly extraordinary because Appellant is asking this Court to intervene in the operation of presumptively legitimate process issued by a grand jury that would otherwise be enforceable, as the district court correctly determined.
Appellant should not be allowed to recast his application as a request for a stay.
In your opinion how will or should the Second Circuit resolve this dispute?
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