MANHATTAN (CN) — Calling on the parties to “sober up” and compromise, a federal judge issued a 24-hour hold Wednesday in the subpoena fight over President Donald Trump’s tax returns.
U.S. District Judge Victor Marrero issued the ultimatum at a hearing this morning, just hours before Trump’s accounting firm Mazars was set to see the subpoena by Manhattan District Attorney Cyrus Vance enforced at 1 p.m.
Hearkening back to the discovery fight in the 2018 Michael Cohen prosecution, Marrero indicated that he may soon appoint a magistrate to determine whether any of Trump’s materials are privileged should the standoff continue.
Assistant District Attorney Carey Dunne was critical of what he called a transparent delay tactic.
“The real game plan today, again looking for as much delay as possible, is to seek stays at every stage,” Dunne declared, predicting a string of stays and appeals all the way up to the Supreme Court.
“They are envisioning an at least month-long or longer process,” he continued, predicting a goal to run out the statute of limitations. “So, I think that the stays we’re talking about again mean they win, we lose, and I think it’s just inappropriate.”
Though the details are shrouded in secrecy, Vance’s investigation is undoubtedly broad in scope, seeking eight years of Trump’s personal and corporate tax returns in connection with a criminal investigation into hush-money payments to adult film actress Stormy Daniels. A state grand jury continues to investigate the matter.
Taking privilege concerns to court has served Trump well in the past — he used a similar maneuver to stymie scrutiny from the House Oversight Committee, House Intelligence Committee, and attorneys general from Maryland and Washington.
Vance’s office has cast Trump’s litigation position as a “sweeping” assertion of executive power, creating a “tax return privilege” where none existed and a “blanket immunity” shielding not only the president but anyone in his orbit from the criminal process.
Trump’s attorney William Consovoy played down the assertion as “temporary immunity” applying only to sitting presidents.
“That is a job for Congress through its impeachment power, if it so chooses to exercise it,” Consovoy said of investigating crimes, depicting state investigations as a recipe for chaos.
If Vance sweeps up Trump in a criminal probe, Consovoy said: “All 50 states can do this.”
“That is untenable,” he added.
Playing down that position, Judge Marrero noted that history has not borne out Trump’s doomsday predictions about overzealous state prosecutors.
“In reality our country has been in existence since 1789,” Marrerro shot back. “How frequently has it happened that 50 states have conspired to somehow undermine the presidency? How likely is it that that might — scenario might occur?”
The skeptical judge expressed confusion about just how broadly Trump’s attorneys interpreted the immunity that the president, his businesses and his associates enjoy.
“What is the definition of ‘criminal process’?” the judge asked, noting that the Supreme Court rejected a claim of absolute privilege in the case over the Nixon tapes.
Marrero also noted that the Supreme Court found in U.S. v. Clinton that the president is not above the law, invoking a principle many other judges have articulated in the swirl of cases against Trump in state and federal courts.
The history-minded jurist also reached back to a far earlier precedent: “Let’s take the case of Vice President Burr,” Marrero said, referring to Alexander Hamilton’s killer.
“Would it have been envisioned in 1789 that a state would indict a vice president?” Marrero asked.
Without skipping a beat, Trump’s counsel explored that precedent involving “two state prosecutions,” in addition to a “treason charge brought by Jefferson,” but the attorney noted a more important consideration.
“There is no contemplation about the presidency though,” Convosoy added. “Because the country can persist without a vice president.”
In a surprise turn, federal prosecutors in the Southern District of New York wrote a letter to Marrero on Tuesday night, indicating that they may support Trump’s position that state prosecutors cannot investigate a sitting U.S. president.
Assistant District Attorney Solomon Shinerock appeared stunned by that turn of events.
“We were surprised to receive the statement last night,” Shinerock said, questioning whether federal prosecutors should be allowed to chime in at the “eleventh hour.”
The Southern District’s entry into the case in support of Trump appeared to weigh on Marrero, who gave the U.S. Attorney’s office until Monday to decide whether to enter the case.
It was less time than federal prosecutors requested.
Trump claims he will be harmed if his accountants at Mazars must comply with the subpoena because New York state could pass legislation that would open up to the public materials that are otherwise secret when in the hands of a grand jury.
The state previously passed legislation seeking to obtain Trump’s tax returns from certain House committees.
Dunne, from Vance’s office, called that “fanciful speculation.”
“I suppose it’s also along those lines possible that the state of New York could be annexed by Ukraine who would invalidate the grand jury secrecy,” Dunne scoffed.
Trump will be facing questions about his dealings with Ukraine’s President Volodymyr Zelensky at a press conference on Wednesday afternoon, hours after releasing a transcript that shows he asked Zelensiky to do him a “favor” by investigating Joe Biden, his likely Democratic opponent in the 2020 election.