(CN) — President Donald Trump’s attorney faced a rough Friday morning at the Second Circuit where a three-judge panel appeared inclined to let a Manhattan grand jury access his tax returns for an ongoing fraud investigation.
The judges even appeared skeptical about whether anything prevents Manhattan District Attorney Cyrus Vance from seeking the president’s financial information now.
“Are you asking us to change the ways grand juries have worked since time immemorial?” Chief U.S. Circuit Judge Robert Katzmann asked at one point, referring to the traditional secrecy and breadth of their operations.
During his colleague’s withering questioning, U.S. Circuit Judge Pierre Leval referred to the allegations of Trump’s complaint as “contrived” and inquired whether it asked questions that were “irrelevant.” Both Katzmann and Leval were appointed by former President Bill Clinton.
Though the scope of the district attorney’s criminal probe remains unknown, Trump has been fighting to keep a grand jury from seeing his financial records since late last year. Trump’s attorney William Consovoy today called those subpoenas essentially “photocopies” of the ones requested by the House Oversight Committee.
U.S. Circuit Judge Raymond Lohier, the third judge on the panel, asked Consovoy whether there was a document request that Trump would not consider overbroad.
Consovoy answered in the negative.
“That's a problem,” responded Lohier, who was appointed by President Barack Obama.
Among other issues, Trump objects that the subpoenas seek transactions by him, his family and his business spanning years and internationally.
Consovoy’s arguments that this smacks of a “fishing expedition” met with pushback from Judge Leval.
"How is it a fishing expedition if a taxpayer's tax returns cover operations nationwide, worldwide?" Leval asked.
All that is known about Vance’s investigation is that it could be related to publicly reported alleged frauds.
Trump’s latest attack on the subpoenas revolves largely upon his claim that the grand jury’s probe centers on ex-fixer Michael Cohen’s hush-money payments to two women who claimed to have affairs with the president, but Vance’s counsel Carey Dunne called that “implausible” and “preposterous” speculation.
"We're through the looking glass here," Dunne added.
Trump initially claimed that a sitting president, his associates and his businesses have immunity from state criminal proceedings — an argument resoundingly rejected by every court that has heard it.
The Supreme Court gave the president another chance to challenge the subpoenas on other grounds in July, an effort that U.S. District Judge Victor Marrero rejected a month later. In his 2019 decision that the high court upheld, Marrero described Trump’s claims to absolute immunity from criminal investigation as more fitting for a king than a president.
As for Trump’s renewed challenge, Marrero has dubbed it an apparent backdoor effort to obtain the same relief the Supreme Court denied.
Oral arguments this morning took a surprising turn when Judge Leval suggested that Vance’s grand jury may be authorized to inspect Trump’s financial information right now.
In September, a different Second Circuit panel stayed Judge Marrero’s decision to dismiss Trump’s lawsuit against Vance.
Judge Leval noted that the 1-page order contained no explicit reference to stopping Vance from enforcing the subpoenas, but Vance has agreed to hold off on them in the past. The court ordered both sides to submit briefings as to where that issue stands.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.