Trump Financial Information May Get to Grand Jury Fairly Quickly

For those who may not be aware, the US Supreme Court last week held, in two separate cases, that the Cheater-in-Chief is not absolutely immune from Congressional or state legal process. Within the past year or so, a Grand Jury in the Southern District of New York issued a subpoena to Mazars, an accounting firm that handles all of the Orange Baboon's financial information, including his taxes. The Grand Jury has been investigating, among other things, the financial shenanigans surrounding the payments to the Philanderer-in-Chief's concubine, Karen McDougal, and his one night stand, Stormy Daniels (she scared the bejesus out of him when she almost smothered him with those boobies!), to determine whether any New York State criminal statutes had been violated with regard to the $280,000 in payments made to these two women.

The Liar-in-Chief challenged the Grand Jury subpoena in the Southern District of New York in a case entitled Donald J. Trump v. Cyrus Vance, Jr., et al., arguing that even though the subpoena was directed to his accountants, his financial records, even though the records being sought were from before he became president, were entitled to "absolute immunity" from legal process, even State Grand Jury process. The District Court and the Second Circuit Court of Appeals both disagreed with this claim, and last week, so did the US Supreme Court, in a 7-2 decision (9-0 against the Orange Baboon on the issue of "absolute immunity"). The Supreme Court remanded the case to the District Court to resolve any other issues either party wanted to raise.

All the legal pundits presumed that the remand would delay production of the documents (which Mazars has already found, printed [or reproduced digitally on disc] and boxed up for delivery to the Grand Jury) well past the election in November.

Unfortunately for the Molester-in-Chief, US District Judge Victor Marerro didn't feel like waiting for the slow train, and had this urgent need (sort of like you have to pee, right now!) to move this case along, and out of his supervision.

The day the mandate issued from the Second Circuit (the Supreme Court issues a remand order, and the Court of Appeals issues a mandate to the District Court to comply with the Supreme Court remand order), Judge Marerro issued his own order, requiring both parties, Trump and Vance, to file with his court a Joint Statement of unresolved issues containing an "outline [of] potential areas for further argument." This Joint Submission must be filed not later than July 15, 2020, or Wednesday of this week.

Judge Marerro's Order further requires that the attorneys for all parties participate in a telephone conference with the Judge at 10:00 AM on Thursday, July 16, 2020, to discuss their Joint Submission, and to set a briefing schedule for unresolved matters, which will, no doubt, occur quickly, because it is clear that Judge Mararro sees no reason for further delay. Given the clarity of the Supreme Court decision, Judge Mararro apparently believes there is not that much more to decide, and wants the subpoena complied with. So it is at least possible that the Grand Jury may have the Orange Baboon's financial records from Mazars by Labor Day. Now wouldn't that be just Grand!

Here is Judge Mararro's Order, filed on June 10, 20120:

ORDER: In accordance with the July 9, 2020 decision of the United States Supreme Court, See Trump v. Vance, No. 19-635, slip op. at 21-22 (July 9, 2020), and the July 10, 2020 Mandate of the United States Court of Appeals for the Second Circuit remanding the case to this Court (See Dkt. No. 46), the parties are hereby ordered to jointly inform the Court by the morning of July 15, 2020 whether further proceedings will be necessary in light of the dispositions by the Courts above. The parties' joint submission should outline potential areas for further argument. A telephone conference to discuss the parties' positions on further proceedings, and a proposed schedule for further briefing, if necessary, is hereby scheduled for July 16, 2020 at 10:00 a.m. The parties are directed to use the dial-in number 1-888-363-4749 and access code 8392198. So Ordered. (Telephone Conference set for 7/16/2020 at 10:00 AM before Judge Victor Marrero.) (Signed by Judge Victor Marrero on 7/10/2020) (js) (Entered: 07/10/2020)

Comments

  • For reasons that I do not fully understand, the Supreme Court notified the Second Circuit that it's Judgment in the Trump v. Vance, Jr. case would not issue until on or about August 4, 2020, pursuant to its interpretation of Rule 45. So apparently the parties have agreed that the New York DA, Cyrus Vance, Jr., will make a motion in the Supreme Court for early issuance of its judgment, so that they can get on with this matter.

    The Orange Baboon and the New York DA have agreed to the following tentative schedule, which is dependent, apparently, on the agreement of the Supreme Court to issue its Judgment early.

    Trump will file a Second Amended Complaint in the District Court not later than July 27, 2020, a week from this coming Monday. The NY DA will then file either an Answer to the Second Amended Complaint, or more likely a Motion to Dismiss the Second Amended Complaint.

    In the event a Motion to Dismiss is filed, it must be filed not later than August 3, 2020, a week after the Second Amended Complaint is filed. Trump must file any Brief in Opposition to a Motion to Dismiss, presuming that is what is filed by the NY DA not later than August 10, 2020, and the NY DA must file a Reply to Trump's Opposition not later than August 14, 2020.

    In the event the NY DA files an Answer to Trump's Second Amended Complaint rather than a Motion to Dismiss (unlikely), the parties agree to a case management conference on or after August 5, 2020, at the convenience of the Court.

    It should be assumed that the NY DA will file a Motion to Dismiss rather than an Answer, as that is the process which took place when this case was first filed. Presuming that occurs, the matter will again be ready for either argument or decision without argument (at the Court's discretion) not later than thirty days from today. Should the Court invite oral argument on the Motion to dismiss, it would be reasonable to assume that argument would occur not later than a week following the filing of the NY DA Reply to Trump's Opposition, or by August 21, 2020.

    The Court will no doubt decide what to do very quickly (as noted in the Joint Submission, it took the Court 18 days to decide the parties' initial cross-motions after the case was initially filed), so absent any extraordinary events, the Court's decision on the NY DA's Motion to Dismiss will occur before September 1, 2020, and possibly as early as August 21, 2020 if there is no oral argument on the Motion to Dismiss.

    What happens after that is anyone's guess.

    Stay tuned, boys and girls!

  • The New York District Attorney, Cyrus Vance, Jr., has applied to the US Supreme Court for an order entering judgment in this case immediately, as discussed above. It would not surprise me if judgment were issued and the mandate transmitted by Friday of this week. Assuming this is true, the schedule set forth in my post above will control further proceedings in the District Court, at least until all scheduled briefing has occurred.

    Watch this space.

    https://www.supremecourt.gov/DocketPDF/19/19-635/147844/20200715151247574_2020 07 15 Rule 45 Application.pdf
  • Chief Justice Roberts granted the application of Cyrus Vance, Jr. for entry of judgment in the grand jury subpoena case today. He further ordered that the judgment be issued "forthwith." So the next step is for the Orange Baboon to file his Second Amended Complaint not later than July 27, 2020. And thereafter the parties will follow the schedule I set forth above.

    Given that there are really no new arguments to be made, it would be fair to presume that the DA will file a Motion to Dismiss, the Financial-Fraudster-in-Chief will oppose the Motion to Dismiss, and all briefs will be filed by both parties not later than August 14. Oral argument, if any, will be held shortly thereafter, and the Court will grant the Motion to Dismiss not later than August 31.
  • Trump filed his second amended complaint timely, on July 27. It apparently repeated all of the allegations of his first amended complaint, which was dismissed by the Judge a year or so ago.

    The NY DA predictably filed his Motion to Dismiss the second amended complaint today, August 3, as ordered. I won't link to it here, but it is a pretty good Motion to Dismiss. Since all of the arguments by both parties are functionally the same, and since the Judge ruled against Trump almost a year ago, it would not be too much of a reach to conclude that the Orange Baboon will lose this round in the District Court quickly. Probably in the next two or three weeks.

    One would assume that the Fraudster-in-Chief will appeal to the Second Circuit, when he loses again in the District Court, and ask the Second Circuit for a stay of the District Court order. The Second Circuit, having been around the block already with the Philanderer-in-Chief, will take the appeal (it would have no choice), but will deny any request for a stay.

    Trump will ask the Supreme Court to order a stay, which, given the Supreme Court's earlier ruling in this case, it will deny. That will put Mazars, Trump's accountants, in the position of having to produce the requested documents, which should take about a day.

    My guess is that the Manhattan DA will have his documents to present to the Grand Jury not later than October 15. Indictment by election day?
  • Apparently, District Court Judge Marrero saw no reason to delay this process any further. Today, in a 103 page opinion, Judge Marrero rejected all of the arguments that Trump had raised in his Second Amended Complaint, and granted District Attorney Vance's Motion to Dismiss "with Prejudice."

    Apparently, DA Vance has agreed to stay enforcement of the Order of Dismissal for seven days, to permit Trump to appeal the dismissal to the Second Circuit. Trump has also filed an Emergency Motion for Stay in the District Court, which will no doubt be denied by Judge Marrero. In that Motion for Stay, Trump's attorneys have indicated that they have also sought orders for an emergency stay from the Second Circuit, and from the US Supreme Court:

    "*Given the need for emergency relief, the President is also seeking a stay pending appeal from the Second Circuit and the U.S. Supreme Court.The President will notify this Court immediately if those courts act on those requests."

    The next step is up to the Second Circuit. While Trump clearly has a right to appeal the District Court Order for Dismissal with Prejudice, he does not have an absolute right to prevent enforcement of the subpoena during that appeal. Since the subpoena is directed to Mazars, the accounting firm, Mazars can be compelled to produce the documents absent a stay from either the Second Circuit or the Supreme Court.

    Given the past history of this case, it is highly unlikely that the Second Circuit will grant an emergency stay. That will leave it up to the Supreme Court, which has already ruled in a 7-2 decision that absent compelling reasons, the subpoena can be enforced.

    Stay tuned. The New York Grand Jury may get all of Trump's financial records, as well as all of the Trump Organization's financial records, much sooner than anticipated, and possibly by the end of August.

    Also, Steve Bannon was indicted today for fraud regarding his "Build the Wall" fundraising effort.

    *Edited to correct spelling of last name of District Court Judge Marrero.
  • As expected, Judge Marrero today denied Trump's Emergency Motion to Stay. Trump's motion for emergency stay before the Second Circuit has been docketed, while thus far there is no indication on the docket of the Supreme Court that a motion for stay has been filed there.

    Given that there is an agreement between the parties that enforcement will be voluntarily stayed for seven calendar days from the date of judgment in the District Court, Judge Marrero indicated in his denial of the motion for emergency stay that unless the Second Circuit or the Supreme Court grants a stay by August 27, the subpoena may be enforced against Mazars.
  • A resolution appears imminent. The Second Circuit did not grant a stay of Judge Marrero's Order for Dismissal, but it did set a hearing on Trump's stay request for September 1, 2020. That would have allowed the NY DA three days in which to enforce the subpoena. The parties, however, have agreed that given the expedited schedule in the Second Circuit, no attempt to enforce the subpoena would occur until the passage of two days following the ruling of the Second Circuit on Trump's application for a stay.

    Given that the Second Circuit has already ruled on these matters last fall, and given Judge Marrero's thorough opinion, a quick decision by the Second Circuit could be expected. With a hearing on Tuesday, September 1, and with Labor Day occurring on September 7, it would not be unusual for the Second Circuit to rule by the end of the week of Labor Day, or by September 11. Assuming a denial of Trump's application for a stay by the Second Circuit, Trump's financial records, including his tax returns, could be delivered to the NY Grand Jury by September 14.

    What cannot be determined from the correspondence between Vance's office and Trump's lawyers is whether Trump agreed to drop any attempt at an emergency stay from the Supreme Court as a condition of Vance agreeing to delay enforcement until the Second Circuit rules on his application there. It would be reasonable to expect that kind of agreement, but it is hard to believe that Trump would be reasonable. Regardless, the next step is a ruling from the Second Circuit, sometime after September 1.
  • The Second Circuit Court of Appeals heard argument today on the president's request for an emergency stay of enforcement of the Manhattan DA's subpoena for financial records from the president's accountants, Mazars. After oral argument, the Second Circuit granted a temporary stay, and scheduled oral argument whether the stay should remain in effect throughout the appeal process.

    Oral argument on continuation of the stay is scheduled for September 25, 2020. Should the president prevail, the stay will remain in effect through the entire appeal process, possibly as long as a year. Should the Manhattan DA prevail, the Second Circuit may terminate the stay by the end of September or early October. Regardless, it appears likely that Trump's financial records will not be delivered to the Manhattan DA before the election.
  • My bad. I misunderstood the Second Circuit order, believing it was setting oral argument on a continued stay pending appeal for September 25.

    If I am now reading the order correctly, the oral argument set for September 25 is on the merits of the appeal from the District Court order, not on whether the stay should continue during the merits appeal. So clearly, this entire appellate process may be completed by the end of September, or early October, if the Second Circuit is proceeding so quickly the merits.

    If I had to venture a guess, I would bet that the Second Circuit will deny the appeal. On a further guess, I would venture that the Trump legal team will request a further stay from the Supreme Court. And I would bet that the Supreme Court will grant the stay, giving Trump a temporary win just before the election.

    Here is the Second Circuit Order:

    https://www.politico.com/f/?id=00000174-4aca-de4a-ad7d-feef506b0000
  • Oral arguments before the Second Circuit occurred today, and if the pundits and legal reporters are correct, it didn't go very well for Team Trump.

    The three judge panel asked the parties for further briefs on the question of whether the case is currently stayed by court order or whether prior enforcement has not occurred as a result of agreement by DA Vance to wait until the Second Circuit rules on the appeal. Those briefs are due Tuesday, September 29. It would not be surprising, given the reported arguments, to have a decision out of the Second Circuit by October 9th at the latest.

    Assuming the Second Circuit denies the appeal (a reasonable assumption given the tenor of the arguments), Trump can then request a rehearing en banc, as happened in the Flynn case. If a majority of the active judges agree to hear the matter en banc the full court will schedule oral arguments and another hearing will occur.

    There are 13 active judges in the Second Circuit, with five appointed by Trump. So seven judges will have to agree to hear the matter en banc in order to have a rehearing. I will go out on a limb and predict that the Court will deny the expected petition for rehearing. That will result, I believe, in a Petition for Certiorari to the Supreme Court.

    No matter what, it does not appear that this subpoena for Trump's financial records from Mazars will be enforced prior to the election. That means that Trump's new appointment to the Supreme Court (who will be named tomorrow) will probably participate.

    Will the Supreme Court reverse it's prior 7-2 ruling that Trump is subject to State criminal Grand Jury subpoenas? The tension is incredible!
  • The Second Circuit ruled today that the Manhattan DA can enforce the subpoena for Trump's financial records, rejecting categorically all of Trump's arguments against enforcement of the subpoena.

    Based on an agreement between the parties, there will be a twelve day briefing schedule in place to enable Trump to seek intervention and a hearing before the Supreme Court.

    At the end of the last term, the Supreme Court held 7-2 that the subpoena was enforceable against a sitting president. With Justice Ginsburg no longer with us, and with a new extremely conservative Justice pending confirmation, it will be interesting to see whether any of the other Justices change their positions on the enforceability of state criminal Grand Jury subpoenas to protect Trump.

    It is possible, depending upon how the Supreme Court acts when approached for a stay and a Writ of Certiorari, that the subpoena could be enforced in the week before the election. But probably not.
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