National Review, United States: Without comment or dissent — and after considerable delay — the Supreme Court this morning denied former President Trump’s effort to stop Manhattan district attorney Cyrus Vance from executing a subpoena for Trump’s personal financial information, including tax returns going back eight years.
This has been a peculiar litigation, and Rich Lowry and I discussed it on The McCarthy Report podcast on Friday. Recall that at the end of last term, the Court largely ruled against Trump’s effort to quash the subpoena — but in a way that guaranteed delay beyond Election Day and that was going to mean more work for the lower courts. In short (as I further detailed in this column), the Court denied the then-president’s claim of complete immunity from investigation, which was borderline frivolous; but the justices sent the case back to the lower courts with instructions to be mindful of the president’s awesome responsibilities and ensure that investigative demands were necessary and narrow — while simultaneously reaffirming the principle that no one is above the law and that a grand jury conducting a criminal investigation is entitled to relevant evidence.
This gave Trump the opportunity to challenge the subpoena again. Under the cover of the Supreme Court’s hand-wringing, he effectively claimed to have what the justices had said he didn’t have — complete immunity — though he couched his claim as bad faith on the part of the prosecutors. The argument was so unpersuasive that, in rejecting it, the district court in the Southern District of New York and, later, the Second Circuit, declined to order further delay in executing the subpoena until the matter could be reviewed by higher courts. Nevertheless, the district attorney agreed not to execute the subpoena in order to allow Trump first to appeal to the Second Circuit, and then to ask the Supreme Court to stay execution of it until Trump could seek a full review on the merits. Clearly, the DA was confident he would prevail and wanted to force Trump’s counsel to mount every conceivable challenge, in hopes that they would all be denied in one fell swoop, preventing potential months of further delay.
Yet months of delay is what we got. The Second Circuit ruled against Trump in October. Trump sought a stay in the Supreme Court and the DA voluntarily agreed to hold off, obviously expecting the Supremes would quickly deny the stay. And there the matter has stood for four months. Perhaps the justices waited because they did not want to be perceived as intruding in the November election, and then further delayed because of the complicated aftermath as the former president and his allies challenged the election outcome in the courts and tried in futility to get the Supreme Court to review it. But most close observers were surprised at the lack of a reasonably quick refusal to stay execution of the subpoena.
That refusal came today, without further elaboration.
Meantime, the investigation appears to be a serious one. It has long been known that federal and state prosecutors were scrutinizing the so-called hush-money payments Michael Cohen, Trump’s then-“fixer” (as he described himself), made during the 2016 campaign to Stephanie Clifford (the porn star known professionally as “Stormy Daniels”). But it later emerged that Vance’s office was conducting a much broader investigation into the Trump organization’s business practices — homing in, it appears, on the (not uncommon) practice of inflating the value of property holdings when borrowing money against them but low-balling their value for tax purposes. This was the subject of a blockbuster New York Times investigation in 2018, and it appeared that Vance had picked up that thread and run with it, reportedly investigating Trump and his real-estate enterprise for potential bank, tax, and insurance fraud.
Last week, Vance announced that a highly experienced defense practitioner and former federal prosecutor, Mark Pomerantz, had been recruited to help lead the investigation. In reporting the announcement, the Times added that Pomerantz had already been assisting the probe for some time, and that prosecutors had already interviewed dozens of witnesses, including some connected to Trump’s top lenders, Ladder Capital and Deutsche Bank. Moreover, investigators were said to be scrutinizing tax deductions claimed by the Trump organization for “consulting fees” allegedly paid to Ivanka Trump, the former president’s daughter (who was an executive in the Trump organization before joining her father’s White House staff).
While all these investigative lines were being pursued, the DA continued to maintain that prosecutors needed access to years’ worth of Donald Trump’s personal financial records to complete their probe. Now, it seems, they will finally have that access.
In conclusion, despite the understandable attention on the former president, the state’s investigation has always been broader than just a focus on him, and it goes back many years into the Trump organization’s activities. Yet, it is worth noting, no one has been accused of a crime. Trump and his organization — in particular, his sons and daughter who help him run it — are presumed innocent. But this is a real investigation, and we’ll need to watch it closely.
