Special treatment in Trump tax case is unwarranted

In 2019, Cy Vance, the New York County district attorney, served a subpoena on Mazars, President Donald Trump's accounting firm, pursuant to a grand jury criminal investigation of Trump and the Trump Organization. The subpoena sought various financial records, including Trump's tax returns.

On July 9, the U.S. Supreme Court decided Trump v. Vance, 140 S. Ct. 2412 (2020), by a vote of 7-2. The court rejected Trump's novel claim that he was temporarily immune from state criminal investigation while in office. It also rejected the solicitor general's alternative theory that a state prosecutor must make a "heightened showing" of need to issue a subpoena to a sitting president. Chief Justice John Roberts, writing for the majority, reasoned that "the public has a right to every man's evidence."

The court remanded the case to the district court. The Supreme Court left open the possibility that Trump could challenge the scope of the subpoena on "specific grounds apart from the categorical immunity." Trump now argues on remand that the Mazars subpoena is overbroad and was issued in bad faith.

On Aug. 20, the district court in a lengthy and carefully reasoned opinion held that Trump's "allegations regarding the timing and preparation of the Mazars subpoena ... do not plausibly state a claim for either overbreadth or bad faith." Thus, Trump's motion to dismiss the complaint for failure to state a claim was rejected. Trump v. Vance, 2020 WL 4861980 (S.D.N.Y.). The district court found Trump's allegations "failed on their face." It also held that he was not entitled to file a third amended complaint challenging the subpoena. Because the grand jury investigation has been delayed for almost a year, Trump's complaint was dismissed with prejudice.

Trump has appealed to the 2nd U.S. Circuit Court of Appeals, 20-cv-2766, where it is now pending. Trump argues unpersuasively that the district court erred in applying the presumption of validity to the subpoena when a president is involved. Compliance with the Mazars subpoena does not implicate Trump's presidential duties under Article II. The Supreme Court rejected a similar "special rule" argument two months ago. Moreover, courts have traditionally applied a presumption of validity to grand jury subpoenas. The law "presumes, absent a strong showing to the contrary, that a grand jury acts within the scope of its authority." Concrete evidence must demonstrate that the materials sought by the subpoena have no relation to the investigation by the grand jury before the presumption is cast aside.

The function of a grand jury is to inquire into possible criminal conduct, and thus its investigatory powers are broad and not easily cabined. It can investigate based on suspicion, or to simply determine that the law is not being violated.

Widespread published public reports and reports by confidential informants to Trump's financial misconduct support the validity of subpoena. The grand jury seeks to determine whether crimes under New York law have been committed by Trump and the Trump Organization, including the Scheme to Defraud (Penal Law Section 190.65), Falsification of Business Records (Penal Law Section 175.10), Insurance Fraud (Penal Law Sections 176.15-176.30), and Criminal Tax Fraud (Tax Law Sections 1803-1806). Thus, Trump's claim that the subpoena is overbroad is not persuasive and falters under scrutiny.

Trump's claim of bad faith also is unpersuasive. The argument is based on the grand jury impermissibly broadening the initial investigation beyond the inquiry into "hush money" payments made by his private attorney, Michael Cohen, and the fact that the subpoena was copied almost entirely from the congressional subpoenas seeking similar information. Trump argues that any broadening of the scope of the investigation is evidence of bad faith. But that clearly isn't the law.

The grand jury subpoena to Mazars properly calls for the tax returns, financial statements, and the underlying preparatory documents necessary to understand those documents. These documents are needed to allow the grand jury to fulfill its duty.

The Supreme Court did not definitively resolve the constitutional scope and practical application of presidential immunity. But one thing is beyond cavil: the president is not above the law. It is worth remembering Chief Justice John Marshall's view on the president's duty to respond to a subpoena to produce unofficial records: A president "must stand, as respects that paper, in nearly the same situation with any other individual." United States v. Burr, 25 F. Cas. 187 (C.C.D Va. 1807). Nothing in the intervening years has changed with respect to a president's duty.

When reduced to fundamentals, Trump maintains that he is entitled to special treatment as president with respect to his private affairs and criminal investigations by a grand jury. The argument that the grand jury subpoena is overbroad and executed in bad faith is simply part of the tactical pattern and practice of using delay to avoid accountability. Further delay is unwarranted. 