The United States Court of Appeals for the Second Circuit has again rebuffed Donald Trump’s efforts to block any investigator from getting access to his tax and other financial records via the subpoena issued by a New York Grand Jury to Trump's accountants Mazars, LLC.
Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. - C.J. John Roberts in Trump v. Vance (2020)
But, said Roberts:
"a President may avail himself of the same protections available to every other citizen. These include the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth.
On remand from the Supreme Court, the President filed a Second Amended Complaint (SAC) in federal district court in Manhattan, under 42 USC 1983, for broad relief:
a. A declaratory judgment that the subpoena is invalid and unenforceable.
b. A permanent injunction quashing or modifying the subpoena as necessary to protect the President’s legal rights.
c. A permanent injunction prohibiting the District Attorney from taking any action to enforce the subpoena, from imposing sanctions for noncompliance with the subpoena, and from
inspecting, using, maintaining, or disclosing any information obtained as a result of the subpoena.
The Circuit court recounts that Trump and the companies he owns and controls allege that the subpoena to Mazars is overbroad and was issued in bad faith. On overbreadth, the SAC alleges that many of the requested documents bear no relation to the payments made by Michael Cohen in 2016—which the SAC, relying on a contemporaneous New York Times article and the earlier subpoena to the Trump Organization, characterizes as the “focus” of the grand jury investigation. The SAC also notes the broad scope and timeframe of the Mazars subpoena to argue that the subpoena exceeds the District Attorney’s jurisdiction. Finally, the SAC alleges that the Mazars subpoena is overbroad and must have been issued in bad faith because it largely mirrors a legislative subpoena issued to Mazars by the House Committee on Oversight and Reform.
In a per curiam opinion issued October 7 the panel unanimously affirmed Judge Victor Marrero’s dismissal of the complaint filed by Trump. Judges Robert Katzmann, Pierre Leval and Raymond Lohier found that the overbreadth allegations did not meet the test of plausibility which a complaint must satisfy in a federal court in order to defeat a motion to dismiss under FRCP 12 (b)(5). “Similarly, the President’s allegations of bad faith fail to raise a plausible inference that the subpoena was issued out of malice or an intent to harass.”
The President’s lawyers sought to accomplish what they had failed to do in the first place, and the second, and the third - at the United States Supreme Court. On remand the Trump lawyers filed a complaint alleging that the state prosecutor - here New York County District Attorney Cyrus Vance, Jr. - was acting in bad faith. Proceeding under the post civil war era civil rights act 42 USC 1983 - the Trump complaint echoed the allegations in the landmark case of Dombrowski v. Pfister (1965). But there the Louisiana prosecutors were proceeding under the state’s Communist Control Act. The Louisiana statute was identical to a Washington State law that the Supreme Court had declared unconstitutional. So there the allegation of bad faith was more than plausible. Further dooming the Trump effort to block the subpoena is the doctrine of deference to state law and prosecutors which is deeply embedded in the law. See, for example, Younger v. Harris (1972) which further constrained federal courts ability to interfere in state prosecutions.
The parties on October 2 agreed on an expedited briefing schedule including that if the District Attorney prevailed the DA will "forbear" enforcement and the Trump parties will within five days seek relief from the United States Supreme Court.
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