A week after the Supreme Court ruled President Donald Trump is not immune from turning over his tax returns and other financial records to the Manhattan district attorney, the president’s legal team said in a Thursday hearing they intended to keep fighting the “wildly over-broad subpoena”—an argument slammed by prosecutors as a back-door attempt to create temporary “absolute immunity.”
Federal Judge Victor Marrero—who originally presided over the case and denied the president’s efforts to block Manhattan District Attorney Cyrus Vance from subpoenaing eight years of Trump’s tax returns last year—questioned both sides in a Thursday hearing about what has changed since his previous ruling.
In the video hearing, Marrero hinted that he had already addressed the president’s concerns last October and only new information would change his mind.
Last August, Vance’s office issued a subpoena to Mazars, the president’s accounting firm, as part of the investigation into hush-money payments allegedly made to several women before the 2016 election. The president has denied having affairs with these women, but Vance said the financial records dating back to 2011 were crucial to see if business records were falsified and if any tax laws were violated.
In a 7-2 decision on July 9, the Supreme Court sided with Vance in the belief that Trump should not get absolute immunity as a sitting president. But they sent the case back to the lower courts for a final decision on the specific subpoena issue. That decision means Trump’s legal team has the right to delay the release of his records before the case is ultimately resolved—which could happen after the November presidential election.
On Thursday, William Consovoy, one of the president’s lawyers, pushed back against Marrero’s skepticism, arguing that Vance’s “wildly over-broad subpoena” was not tailored to the DA’s original investigation and was instead “copied verbatim” from the congressional committees who also sought Trump’s tax returns.
He said Trump “is still reviewing the subpoena” and his team has not yet decided what arguments they plan to raise in an amended complaint against Vance’s request. Calling the legal action a “fishing expedition,” Consovoy argued Trump was “a target for political reasons.”
He added that while Marrero allowed Vance’s investigation into whether Trump and his company violated state laws with hush-money payments, he must now “focus on the subpoena itself” and narrow its scope.
Assistant District Attorney Carey Dunne hit back, arguing that the president’s legal team did not offer “a single recitation of a single new fact” that would sway the judge’s original ruling, and stressed that “justice delayed is justice denied.”
“What the president’s lawyer is seeking here is delay,” Dunne said, adding that the president achieves some sort of “absolute immunity” with each day that goes by. “This lawsuit has delayed our collection of evidence. We accept that the president has the right to articulate any new claims, except constitutional immunity. But there's no special heightened standard. It’s like he’s a CEO.”
While the federal judge made no rulings on Thursday, he endorsed the schedule the two legal parties had previously agreed on. The president will make whatever arguments he wants about the subpoena in a hearing later this month.
“Our office’s position, your honor, is, ‘bring it on,’” Dunne said Thursday.
The hearing came a day after Trump’s lawyers, in a joint submission memo with the DA’s office, renewed their year-long effort to block or narrow Vance’s access to the president’s records. In the memo, the lawyers argued Vance’s subpoena was politically motivated and too broad.
“The President should not be required, for example, to litigate the subpoena’s breadth or whether it was issued in bad faith without understanding the nature and scope of the investigation and why the District Attorney needs all of the documents he has demanded,” the president’s lawyers said in the 10-page memo. “The parties likely will disagree about the appropriate scope of discovery.”
Trump has been refusing to release his tax returns for years, overturning a precedent set by the previous six presidents. He argued in federal district court in New York that he couldn’t be subpoenaed in a criminal case because he is a sitting president. The president lost several bids last year in lower courts to stop the subpoenas.
“Shunning the concept of the inviolability of the person of the King of England and the bounds of the monarch’s protective screen covering the Crown’s actions from legal scrutiny, the Founders disclaimed any notion that the Constitution generally conferred similarly all-encompassing immunity upon the president,” Marrero wrote in an October 2019 opinion denying Trump’s block and reminding the president’s legal team that the president is not royalty.
Similar to his argument against the slew of congressional committees who wanted his finance records, Trump argued that the legal move tried “to compel the production of an enormous swath of the president’s personal financial information.” His legal team slammed Vance for “pointedly refus[ing] to eliminate the president as a target for indictment.”
On Thursday, Dunne stressed the president's lawyers have had over a year to dig into the facts of their investigation and there was no “attempt to harass.”
He also stressed that their request for the subpoena does not burden Article II of the Constitution—which establishes the executive branch of the federal government. He said that there is no burden because “the Mazars subpoena is not even served on the president. He's not the one responding to it.”
“Now that the immunity claims are gone, he does not even have standing for claims that belong only to Mazars. I do not think discovery will be necessary,” Dunne said.
A day after the July 9 Supreme Court victory, Marrero asked both Trump’s lawyers and the district attorney teams to inform him of whether further action was needed in light of the landmark decision.
Trump’s lawyers, in the Wednesday memo, revealed they plan to argue Vance’s subpoena should be blocked, while the district attorney told Marrero that the president’s team is trying to blow past the limitations of the Supreme Court ruling. Both parties, however, agreed the president should make new challenges to the subpoena by July 27.
“It is the president’s position that further proceedings are necessary,” Trump's lawyers said in the memo. “In those proceedings, the president will file a second amended complaint in which he will raise arguments that the Supreme Court held that he may make on remand.”
On Wednesday, Vance’s office also asked Marrero in the joint memo to order the president to file any additional arguments as soon as possible in order to not lose evidence “as a result of fading memories or lost documents and the risk that applicable statutes of limitations could expire.” The District Attorney’s Office also asked the Supreme Court on Wednesday to immediately release its ruling to lower federal courts, warning that delaying a process that normally takes up to 25 days could thwart the ability for filing of criminal charges.
“If the president has anything left to say the ball is now in his court,” the district attorney’s office wrote.