(CN) — Less than a week after the Supreme Court’s resounding rejection of absolute immunity claims, President Trump on Wednesday revealed his path forward in the probe of his tax returns for a New York criminal investigation.
“The Supreme Court held that its ruling is ‘limited to absolute immunity and heightened need,’” a 10-page memo describing the status of the case summarizes. “It then ‘directed that the case be returned to the District Court, where the president may raise further arguments as appropriate.’”
Left a high court opening, Trump cited four possible avenues for counterattack: challenging the subpoenas’ breadth, alleging bad faith, accusing the Manhattan District Attorney Cyrus Vance of political motivations and claiming the probe interferes with his official duties.
“The parties likely will disagree about the appropriate scope of discovery,” Vance’s assistant Carey Dunne and Trump’s attorney William Consovoy agree in their joint briefing.
Vance committed to pausing enforcement of his subpoenas until Trump’s legal team has an opportunity to file a new complaint by July 27.
If Trump proceeds — and the history of the case all but ensures that he will — Vance will continue to keep those subpoenas at bay until seven days after U.S. District Judge Victor Marrero issues a ruling.
Some hours after the memo became public, Vance’s office asked Chief Justice John Roberts of the U.S. Supreme Court to fast-track transmission of its judgment to the Southern District so that future proceedings are not delayed.
“Expedited resolution of any remaining claims on remand is vital to ensure that the state grand jury has access to all of the evidence to which it is entitled in a timely fashion — thereby minimizing any risk that criminal conduct will go unpunished as a result of expiring statutes of limitations or lost evidence,” Vance’s general counsel Carey Dunne wrote in a 5-page application.
Citing the “extraordinary delays” wrought by ongoing appeals, Dunne added that the age of the transactions at issue raises statute-of-limitations concerns. The Aug. 29 subpoena of Trump’s accounting firm Mazars sought a wide swath of files pertaining to Trump and more than 10 of his related entities dating back to Jan. 1, 2011.
“Each day that compliance with the Mazars subpoena is delayed increases the likelihood that the grand jury will not receive the documents it sought ten months ago in a timely fashion — potentially giving [Trump], as a practical matter, the absolute temporary immunity that this court rejected,” Dunne wrote.
Vance believes that Trump’s legal team is trying to blow past the limitations of the 7-2 majority.
“The President’s proposal attempts to elide that standard; indeed, it expressly invites this Court to conduct a heightened-scrutiny inquiry drawn from the concurring opinion that was utterly rejected by the majority decision,” the memo states.
Trump is also trying to relitigate some of Judge Marrero’s findings that led to the Supreme Court battle.
“This court has already found that there was no demonstrated bad faith, harassment, or any other unusual circumstance that would call for equitable relief,” the memo notes.
Upheld by the Supreme Court, Judge Marrero’s scathing ruling from last October reminded Trump’s legal team that the United States has a president but not a king.
“Shunning the concept of the inviolability of the person of the King of England and the bounds of the monarch’s protective screen covering the Crown’s actions from legal scrutiny, the Founders disclaimed any notion that the Constitution generally conferred similarly all-encompassing immunity upon the president,” Marrero wrote in a 75-page opinion.
Marrero immediately scheduled a hearing the day after the Supreme Court issued its opinion, signaling an attempt to move the remaining battles briskly along.
That should come as some relief to Vance’s prosecutors, who spotted delay tactics by Trump in a hearing last September.
“The real game plan today, again looking for as much delay as possible, is to seek stays at every stage,” Assistant District Attorney Dunne said at the time.
With the presidential election looming, Vance’s office appears to suspect the same playbook at work — a threat to his investigation. The memo describes the danger of losing “every man’s evidence” as a result of “fading memories or lost documents” or statutes of limitations expiring.
The path ahead should become clearer at a court appearance on Thursday morning, where the parties will meet remotely via a teleconference for the first time since months of appeals.