U.S. District Judge Victor Marrero put the subpoena on hold while waiting for the Justice Department response to arrive.
In its filing, the Justice Department said Trump was right to bring the suit in federal court, not state court. It asked Marrero to keep the subpoena on hold for longer, to allow for more detailed arguments about the “weighty constitutional issues involved” in the case.
“Doing so will prevent irreparable harm to the President’s asserted constitutional interest in not having his records subjected to state criminal compulsory process in these circumstances,” said the filing, signed by Justice Department officials in Washington and New York.
Marrero is expected to rule in the next few days, deciding whether the subpoena should go forward or remain on hold while Trump’s lawsuit is heard.
Vance’s investigation is focused on payments made before the 2016 election to Stormy Daniels and Karen McDougal, two women who said they had affairs with Trump. He has denied having relationships with the women.
Trump’s former attorney and “fixer” Michael Cohen pleaded guilty to campaign finance violations for helping to arrange those payments. Cohen said he had been reimbursed $420,000 by the Trump Organization. Federal prosecutors later effectively concluded their investigation without charging anyone else at the company.
Trump’s private attorneys sued Vance and Mazars in federal court, seeking to stop the subpoena.
Their logic was sweeping: that Trump was immune from any criminal investigation — of any kind, by any prosecutor — while president.
“The Framers eliminated this possibility, and assigned the task to . . . Congress” through the impeachment process, Trump’s attorneys wrote. They asked a judge to stop the subpoena: “Because [Vance’s] subpoena attempts to criminally investigate a sitting president, it is unconstitutional.”
Vance’s office argued that Trump’s attorneys were stretching presidential immunity far beyond what any court had intended.
Trump, Vance’s office said, is seeking to “invent and enforce a new presidential ‘tax return privilege’ ” that would bar anyone from seeing his returns. “No such privilege exists in the law,” Vance’s office wrote.
The Justice Department filing did not mention the sweeping assertion of presidential privilege made by Trump’s private attorneys. Instead, it focused on a more narrow procedural issue — rejecting an argument made by Vance that this was a state-level matter that did not belong in federal court.
“The President is undoubtedly entitled to review in federal court when the state prosecutor seeks his records directly from him,” the Justice Department filing said. “The President should not lose access to that federal forum simply because the President’s records are sought from a third-party custodian” like Mazars, the filing said.