“The stay was a stay on dismissal of complaint,” Leval said during questioning of a lawyer for the district attorney. “It was not a stay on execution of subpoena.”
A stay is a judicial order that temporarily prevents an event that is the subject of litigation from taking place.
The judge added that the “existence of the complaint doesn’t stop the district attorney from enforcing the subpoena.”
Carey Dunne, general counsel in the district attorney’s office, said the appeals court’s Sept. 1 order was not interpreted that way.
Both sides were ordered to submit by Tuesday written arguments explaining how each interpreted the order, which did not offer specific guidance on whether the subpoena was subject to the stay. Rather, it only generally granted the intervention Trump and his attorneys sought.
Trump’s attorneys have argued that the president would lose his right to litigate his challenge if the district attorney already has the president’s financial records. The comparison often offered in such situations is that one cannot “unring” a bell.
The appeals court is trying to decide whether Trump’s claim — that the district attorney’s records request is “overbroad” and a form of “harassment” — has merit. That argument was rejected by a district court judge after this summer’s Supreme Court ruling saying Trump, as president, was not immune from such proceedings.
The Supreme Court left the door open for Trump to make other claims on the validity of the request itself, and the president has predicted the renewed fight to shield his financial records will eventually land before the high court again.
Vance has been investigating Trump and the business activities at his company, the Trump Organization, having convened a secret grand jury to review evidence. As part of the probe, a subpoena was issued last year to the president’s accounting firm seeking eight years of tax returns and related documents.
Vance’s investigation focuses on payments made by the president’s former personal attorney Michael Cohen, allegedly on Trump’s behalf, to two women who ahead of the 2016 election alleged they had affairs with Trump several years ago. The president has denied their claims.
Citing past media reports raising questions about potential bank and insurance fraud, the district attorney’s office has since acknowledged that its investigation is more broad and may also delve into business practices at the Trump Organization.
The judges on Friday’s panel sounded critical of arguments by Trump attorney William Consovoy, who has insisted that the district attorney is looking only at Cohen’s payments to adult-film actress Stormy Daniels and former Playboy model Karen McDougal.
Consovoy had cited a recent New York Times report about Vance’s investigation as supposed proof that its scope was narrow — but the article did not say that, one judge suggested.
“Doesn’t that article . . . significantly undermine the plausibility of your assertion?” Judge Robert A. Katzmann asked.
The article “says exactly what our allegations say,” Consovoy argued. “This was about the Cohen payments, and it was unclear whether it has expanded beyond that.”
Trump’s legal team has said the wide-ranging subpoena for his tax returns, which also seeks information on international business dealings, has been issued in “bad faith.” His attorneys have called it a “fishing expedition” — an argument the judges seemed to reject Friday.
One judge noted that investigations often expand from their original purpose or jump from one subject area to another, proposing the grand jury hearing evidence in the Trump case could have started examining the Cohen payments only to proceed to other matters.
Dunne argued that the issues pending in front of the appeals court are “garden variety” challenges and that Trump should not be given special consideration.
Should Vance prevail, it is doubtful Trump’s tax records would become public anytime soon — if ever — because grand jury proceeding are secret. If any charges are brought, some of the information could be cited in public filings or aired during court proceedings.
The judges did not say when a ruling on the appeal is expected.