A Rough Week for President Trump

With the number of legal proceedings and investigations swirling around president Trump, it’s easy to lose track of developments. But last week saw an extraordinary string of bad news for the president on several different fronts. The president should be riding high this week, with the Republican party nominating him for a second term. But last week was pretty rough.

Photo of president Trump

1. The New York District Attorney Case

As I wrote in my most recent post, Manhattan District Attorney Cyrus Vance, Jr. has been engaged in a year-long battle to obtain president Trump’s tax returns and other financial records. Vance’s office is overseeing a New York state grand jury investigation into potential financial crimes by the Trump Organization and unidentified individuals, likely including Trump himself.

As part of the grand jury investigation, in August of 2019 Vance subpoenaed the president’s tax returns and other financial records from his personal accountant, Mazars LLP. Although this is a state grand jury proceeding, in September 2019 the president filed a lawsuit in federal district court arguing that he was absolutely immune from state criminal process while in office. The U.S. Supreme Court rejected that claim last month. Trump then filed a new complaint, alleging that the grand jury subpoena is overbroad and was issued in bad faith. Vance moved to dismiss that complaint.

The lawsuit by Trump seeks to do an end run around the secrecy protections that surround grand jury proceedings. In an ordinary case, the recipient of a grand jury subpoena is not entitled to go to court and demand details about the scope of the investigation. He may argue the subpoena is overbroad, unduly burdensome, or is otherwise improper. But he may not demand to know the inner workings of the grand jury and the details of what it is investigating. Trump was essentially using his civil lawsuit to seek discovery about the investigation and circumvent these rules.

Trump’s Complaint is Dismissed

In my earlier post, I noted the uphill battle Trump faced and argued Vance was likely to prevail. And last week, the court granted Vance’s motion to dismiss and threw out Trump’s complaint. In a 103-page opinion, Judge Victor Marrero noted that the lesson from the recent Supreme Court decision is clear:

Absent evidence that compliance with a grand jury subpoena would improperly influence or impede the executive branch’s performance of constitutional duties, the President is entitled to claim no greater shield from judicial process than any other person.

The president had not even attempted to argue that the subpoena – directed to an outside third party, not to him – would improperly interfere with his official duties. And because the judge found the subpoena was not overbroad or issued in bad faith, he ruled the president was not entitled to relief and that the grand jury investigation should be allowed to proceed.

Trump has appealed the decision.  As of this writing, the district court has denied the president’s request for a stay pending appeal, and the Second Circuit Court of Appeals will hear arguments on Trump’s motion for a stay on September 1. If the Second Circuit denies the stay, Trump could seek intervention by the U.S. Supreme Court. But grant of a stay by any court seems very unlikely. And in the absence of a stay, Mazars has indicated it will comply with the subpoena. [Update: on September 1 the Second Circuit, in blatant disregard of my prediction, did grant a stay. Arguments on the merits will be heard on September 25.]

In sum, Trump is nearly out of legal options here. He’s managed to delay things for a year, but the New York state grand jury should have his tax returns before long. Grand jury secrecy means they will not necessarily be made public any time soon, if at all. But the possibility of state criminal charges poses a unique threat to Trump: although Attorney General William Barr has shown a remarkably corrupt willingness to protect the president, Barr has no control over a state prosecutor. And even if Trump could pardon himself on his way out of office (an unsettled question), no president can issue a pardon for state charges.  This is an area where Trump’s willingness to abuse the power of his office cannot help him.

Steve Bannon
Steve Bannon

2. The Steve Bannon Indictment

On the same day the judge dismissed Trump’s lawsuit over the Vance subpoena, there was another major legal development with potential implications for the president: federal prosecutors in the Southern District of New York indicted Steve Bannon, Trump’s former campaign CEO and Senior White House advisor, and three other men for fraud and money laundering. The indictment doesn’t implicate Trump directly. But it adds to a long list of people formerly in the president’s inner circle – including former campaign chair Paul Manafort, deputy campaign chair Rick Gates, national security advisor Michael Flynn, and political advisor Roger Stone – who have faced criminal charges. For a president who claims to hire “only the best people,” it is, at a minimum, not a good look.

The Bannon indictment lays out a relatively straightforward fraud scheme. It was spearheaded by Brian Kolfage, an Air Force veteran and Arizona border wall activist. According to the indictment, in December 2018 Kolfage launched an online fundraising campaign called “We the People Build the Wall.” The claimed purpose was to raise money to donate to the U.S. government to help fund the construction of a border wall between the United States and Mexico. The initiative apparently arose after Kolfage was frustrated by the Trump administration’s inability to get significant funding for the wall from Congress. His solution: raise the money from individual donors and give it to the government. Kolfage allegedly promised donors that 100% of the donations would go towards building the wall, and that the money would be returned if that was not possible.

The fundraising campaign was a huge success and quickly raised about $20 million. The online fundraising platform then began raising questions about the campaign and whether the money could actually be donated to the U.S. government as promised. The platform told Kolfage that he had to identify a legitimate, nonprofit organization to receive the funds, or else they would be returned to the donors.

That’s where Steve Bannon allegedly came in. Shortly after he was contacted by Kolfage and became involved, Bannon and the other defendants created a new tax-exempt organization, “We Build the Wall, Inc.”, to receive the donated funds. They then allegedly set about persuading the online site, and the original donors, that the funds should be transferred to this new nonprofit. Among other things, they repeatedly claimed that 100% of the funds would go towards the building the wall and that Kolfage would not earn a penny. They also claimed the new nonprofit had guidelines and oversight in place that would prevent any of the funds from being misappropriated. In reliance on those representations, most donors agreed that their original donations could be transferred to the new nonprofit. The defendants solicited new donations as well, in the end raising a total of more than $25 million.

The indictment alleges that the defendants misappropriated hundreds of thousands of dollars of the donated funds to their own use. Kolfage allegedly received more than $350,000 from the organization, including a $20,000 a month salary despite repeated promises that he would take no salary from the venture. Bannon allegedly received more than $1 million. The indictment charges that the defendants disguised these payments by running them through various other nonprofit organizations and shell companies, and by falsely characterizing them as payments to vendors. Kolfage allegedly used the misappropriated funds for personal expenses such as a boat, home renovations, a luxury SUV, plastic surgery, and personal tax payments. Bannon and the other defendants allegedly used the money for travel, hotels, consumer goods, and personal credit card payments.

The indictment charges the defendants with one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering. Both of those crimes carry a maximum penalty of twenty years in prison. If the allegations of the indictment are true, there are no obvious defenses and it looks like a pretty tough case for Bannon and the other defendants.

William Barr
Attorney General William Barr

Why Did Barr Let It Happen?

One interesting aspect of this case is that William Barr’s Justice Department allowed it to proceed. Barr has shown little reluctance about intervening in cases that land close to the White House, including the prosecutions of Roger Stone and Michael Flynn. So why would he green light a prosecution so clearly embarrassing to the president shortly before the election?

There are a few different possibilities. One is that the Southern District of New York “went rogue” and brought the case without informing Barr. This is not impossible – there’s no law that requires the U.S. Attorney to notify the Attorney General about such a case. And the SDNY is famously independent – hence its nickname, the “Sovereign District of New York.” The fact that United States Postal Inspectors were the lead investigative agents on the case, not the FBI (which is part of Barr’s DOJ), might lend some credence to the idea that SDNY was keeping the case under wraps to avoid any interference. But on balance I find this a little hard to believe.

Another possible explanation is that Barr’s efforts to tamp down the case simply failed. When the indictment came down, many people recalled Barr’s recent effort to fire the U.S. Attorney for the Southern District of New York, Geoff Berman. You may recall the odd episode where Barr issued a press release saying Berman was stepping down, which Berman promptly denied. When he did so, Berman expressed concern about ensuring the integrity of ongoing investigations within his office.

Barr had planned to replace Berman temporarily with the New Jersey U.S. Attorney, who is close to Barr, and ultimately with Jay Clayton, the head of the SEC.  They are Trump loyalists who probably could have been counted on to at least slow-walk the Bannon case until after the election, if not kill it entirely. But Berman’s refusal to go quietly ultimately ended in a deal where Barr agreed that Berman’s chief deputy, Audrey Strauss, would step in as the acting U.S. Attorney if Berman left.  And Strauss, a respected career prosecutor, is not on team Trump.

It’s true that Barr still had the power to kill the case. But it’s pretty difficult to do that against the recommendation of an independent, career U.S. attorney. Barr’s intervention would almost certainly have leaked, and that could have ended up looking even worse for the president than the indictment. At least Trump can distance himself from Bannon’s fraud; he could not have readily distanced himself from Barr’s torpedoing the case. In short, perhaps after Barr’s attempt to install “his guy” at the SDNY failed, allowing this indictment to go forward ended up being his best option.

In fairness I should mention a third possibility: perhaps Barr was just playing it straight, not interfering, and letting the chips fall where they may. Perhaps – but his track record does not entitle him to the benefit of the doubt. And there has never been a satisfactory explanation for the immediate need to remove Berman, rather than waiting for his replacement to be confirmed.

What Does the Bannon Case Mean for Trump?

As I mentioned, the case against Bannon does not directly implicate the president. But Bannon was part of Trump’s inner circle for some time. It’s possible he has information relevant to other ongoing investigations – some of which are not public and may be located in the SDNY. If so, Bannon could agree to turn on Trump and cooperate in exchange for leniency. It’s also possible, of course, that Trump could pardon Bannon – particularly after the election – in the hope that Bannon would then keep his mouth shut out of gratitude. But at this point we can only speculate.

In any event, the developments in Bannon’s case should be interesting. Absent a pardon, some kind of cooperation, or other unexpected development, it looks like there is a good chance he will be going to jail.

cover page of Senate Intelligence Committee report

3. The Senate Intelligence Committee Report

Also last week, the Senate Intelligence Committee released Volume 5 of its report of its investigation into Russian interference in the 2016 election. The report is notable not so much for any startling new revelations but because it was issued by a Senate Committee on a bipartisan basis – and that Committee is controlled by Republicans.

The Senate report confirms much of what was already in the Mueller report, although it goes into far greater detail, weighing in at nearly 1000 pages. It devotes more than 100 pages just to discussing Paul Manafort and his ties to various Russian actors, including Russian intelligence officers. Another 100+ pages are devoted to discussing the infamous Trump Tower meeting in June 2016 between members of the Trump campaign and Russians who had promised damaging information about candidate Hillary Clinton. Other people and incidents, including George Papadopoulos, Carter Page, Roger Stone, and Trump’s concealment of his efforts to build a tower in Moscow, also receive extensive discussion.

The detailed information about Manafort and his Russian ties is perhaps the most damning, although again most of it is not new. The report details Manafort’s long-time ties to Konstantin Kilimnik, who is described as a Russian intelligence officer. Among other things, while he was Trump’s campaign chairman, Manafort met with Kilimnik and shared confidential internal Trump campaign polling data. The Committee, like Mueller, could not determine exactly why Manafort shared this information. But Kilimnik was with Russian intelligence and this took place at the same time Russia intelligence officers were actively engaged in a social media campaign to influence the election. Such internal polling data would undoubtedly be extremely useful in determining where to target such social media efforts.

Two conclusions in the report deserve to be highlighted.  First, when it comes to Manafort:

The Committee found that Manafort’s presence on the Campaign and proximity to Trump created opportunities for Russian intelligence services to exert influence over, and acquire confidential information on, the Trump Campaign. Taken as a whole, Manafort’s high level access and willingness to share information with individuals closely affiliated with the Russian intelligence services . . . represented a grave counterintelligence threat.  

Second, when it came to the Committee’s ability to investigate and obtain information from the White House, it noted that the president had made expansive, unwarranted assertions of executive privilege:

The Committee did not anticipate . . . the multitude of novel and unprecedented potential executive privilege claims from the [White House Counsel’s Office] on behalf of members of President-elect Trump’s Transition Team and the Transition itself, for communications before Trump took office. The Committee was surprised by these assertions because they were made inconsistently and because they have no basis in law.

In short, the Republican-led committee agrees the Russia investigation was not a “hoax;” actions of the Trump campaign represented a “grave counterintelligence threat.” And the White House, following a pattern it has exhibited in many other investigations (including the Mueller investigation and the impeachment proceedings) essentially stonewalled the investigation, making it impossible fully to determine what had happened.

Trump and Putin shaking hands

But Was it Collusion?

After 900-plus pages of bipartisan factual analysis, the report concludes with brief statements of “additional views” by groups of Republican and Democratic Senators. The Republicans stated (in bold italics, to make sure you don’t miss it), “the Committee found no evidence that then-candidate Donald Trump or his campaign colluded with the Russian government in its efforts to meddle in the election.”  The Democratic Senators disagreed, concluding that “this is what collusion looks like.”  In other words, the two political parties largely agree on the facts, but disagree over whether they prove “collusion.”

This is a silly, semantic debate. As I’ve argued elsewhere, and as Mueller also noted in his report, collusion is not a legal term. You can define it however you like. If you equate the term collusion with a criminal conspiracy, then it’s true that Mueller – and the Committee – did not find sufficient evidence to prove such a conspiracy beyond a reasonable doubt. On the other hand, if you define collusion as working cooperatively to achieve a common goal,  then there is evidence of collusion all over the place. As the Democrats noted in their separate statement:

The Committee’s Report clearly shows that Trump and his Campaign were not mere bystanders in this attack – they were active participants. They coordinated their activities with the releases of the hacked Russian data, magnified the effects of a known Russian campaign, and welcomed the mutual benefit from the Russian activity.

The bottom line is that a Republican-led Senate Committee has found that the Trump campaign had extensive contacts with Russian individuals including Russian intelligence officers, shared confidential information with them, welcomed Russian efforts to help Trump win the election, built a campaign and messaging strategy around the release of the Democratic emails stolen by Russia, and then failed to cooperate fully in the Senate investigation of those activities.

That should be – or should have been — a major scandal. But again, none of it is really new, and most of it was discussed in Volume I of the Mueller report. The addition of this Senate report is unlikely to have much of an impact on a public that has already largely absorbed these facts and formed its opinions.

But if nothing else, perhaps the bipartisan report will help to undermine Trump’s constant refrain about the “Russia hoax” and the deep state “witch hunt.” Even his own party agrees that the Russia allegations were not a hoax; there was extensive evidence of the Trump campaign’s ties to Russia and that those ties posed a grave threat. There was a more than sufficient basis for the FBI to investigate. The fact that no provable criminal charges resulted does not mean the investigation itself was unwarranted – particularly considering how difficult the White House and others made it for investigators to get the full story. And the fact that the Trump campaign’s conduct ultimately may not have been criminal does not mean that it was okay.

Stephanie Clifford, a/k/a Stormy Daniels

Postscript: More Stormy Weather

I’d be remiss if I didn’t mention a final legal development last week: we learned on Friday that Trump was recently ordered to pay more than $44,000 in legal fees to adult-film actress Stephanie Clifford, known as Stormy Daniels. The fees were from a lawsuit she filed over a non-disclosure agreement with Trump. She signed the agreement in 2016, accepting $130,000 in exchange for her promise not to discuss an affair she had with Trump from 2006-2007.  A California judge agreed that Daniels had prevailed in her lawsuit to void the agreement, and ordered Trump to pay her attorney’s fees.  

One of the charges that Trump’s personal attorney Michael Cohen pleaded guilty to was a campaign finance charge related to this “hush money” payment to Clifford, which he said he made at Trump’s direction.  Possible state financial crimes related to this hush money payment were part of the original basis for Vance’s grand jury investigation in New York. Thus, in the span of a few days last week, Trump’s legal problems came full circle.

All in all, a really bad week.

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Tax Return Fight Indicates Trump May Face State Criminal Charges

Update: On August 20, District Court Judge Marrero granted Vance’s motion to dismiss the new complaint. Both the District Court and the Second Circuit have already denied Trump’s request for a stay pending appeal. Unless the Supreme Court grants a stay, the records should be in the grand jury’s hands soon.

Manhattan District Attorney Cyrus Vance, Jr. appears close to obtaining president Trump’s tax records. Vance first subpoenaed the records about a year ago. Last month the U.S. Supreme Court rejected Trump’s claim that the subpoena should be rejected because the president is absolutely immune from state criminal investigations. Trump’s attorneys then filed a new complaint once again challenging the subpoena, claiming it is overbroad and was issued in bad faith. Vance has now moved to dismiss that complaint. The DA seems likely to prevail and ultimately get the records. And although it’s unlikely that anything contained in the returns will be made public before the election, Vance’s pleading filed last Monday suggests that Trump could be facing a range of New York state criminal charges if he leaves office in 2021.

Manhattan DA Cyrus Vance Jr.
Manhattan DA Cyrus Vance, Jr.

The Vance Subpoena and Trump’s Lawsuit

Vance’s office opened an investigation in the summer of 2018 into unspecified financial crimes by New York businesses and individuals. Initially, at least, it appeared the investigation was prompted by reports of “hush money” payments by Trump and/or his campaign to two women, Karen McDougal and Stormy Daniels, shortly before the 2016 presidential election. In August of 2018 Trump’s personal attorney, Michael Cohen, pleaded guilty to a campaign finance crime related to those payments. During his plea Cohen said he had made the payments at the direction of candidate Trump himself. Vance’s office apparently began an investigation into whether the payments, and how they were documented in corporate records, may have violated New York law.

In August of 2019 the prosecutors, acting on behalf of a grand jury, issued a subpoena for documents to Mazars USA, LLP, Trump’s personal accounting firm. The subpoena directed Mazars to produce financial records relating to Trump and his businesses, including copies of the president’s tax returns for the past eight years.

In September 2019 the president filed a lawsuit in federal district court in New York, seeking an injunction against Vance and Mazars to prevent enforcement of the subpoena. Trump claimed that under the U.S. Constitution a sitting president is absolutely immune from state criminal process. He also argued the subpoena was overbroad and that Vance was acting in bad faith and for political reasons. (Throughout the litigation Mazars has taken the position that the fight is between Vance and Trump and that Mazars stands ready to honor the subpoena if that’s how the courts rule.)

The district court judge rejected the president’s arguments. The judge found there was no basis for the president’s sweeping claim of immunity and that Mazars complying with the subpoena would not impair the president’s ability to fulfill his constitutional duties. The judge also rejected the president’s claims of overbreadth and bad faith.

The Second Circuit Court of Appeals affirmed the trial judge, finding that immunity was not constitutionally required. It noted that Trump had failed to identify any constitutional harm or interference with his duties because the subpoena, directed to Mazars, did not “require the President to do anything at all.” An appeal from the Second Circuit decision was fast-tracked to the U.S. Supreme Court.

Image of US Supreme Court

The Supreme Court Decision

On July 9, 2020, the U.S. Supreme Court, in an opinion by Chief Justice Roberts, also rejected Trump’s claims. Reaching back to an early dispute involving Aaron Burr and president Thomas Jefferson, the Court traced a long history of cases finding that presidents, like other citizens, are not above the law and may be subpoenaed to provide testimony or evidence. Although this was the first time the Court had confronted the question in the context of a state proceeding rather than a federal one, the Court concluded that did not compel a different result.

The Court was unanimous in rejecting Trump’s claim of absolute immunity. Trump argued that immunity was required because complying with such a subpoena would impermissibly distract him from fulfilling his constitutional duties. But the Court noted that it had already rejected immunity based on purported presidential distraction, most notably in the unanimous 1997 decision in Clinton v Jones that president Clinton was not immune from a civil suit based on actions before he took office. Similarly, the Court concluded, “two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.” The Court also rejected Trump’s claims that immunity was required in order to avoid the “stigma” of being under investigation and to prevent presidential harassment by state prosecutors.

The majority also rejected the alternative argument, advanced by the U.S. Solicitor General, that a subpoena directed at a sitting president should have to meet a higher standard of justification before it can be enforced. The Court noted these arguments were based primarily on cases involving Executive privilege. But such cases were not relevant here because this subpoena was directed at the president’s personal records. Requiring a higher standard, the Court held, would improperly “extend protection designed for official documents to the President’s private papers.”

Although the Court rejected the president’s claims, it did not leave Trump with no possible remedy. Given his constitutional position, the Court held, a president may challenge a particular subpoena as an improper attempt to influence or impede his performance of his official duties. And the president also has the remedies available to any person to challenge a grand jury subpoena, including arguing that the subpoena is unduly burdensome, overly broad, or based on bad faith. But any such claims were not part of the appeal to the Supreme Court.

The Court concluded:

Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.

The President’s New Complaint

The Supreme Court’s decision did not end the matter. With the case back in the trial court, the president quickly moved to bring some of the other challenges the Supreme Court said were still available. On July 27 the president filed a Second Amended Complaint, seeking once again to enjoin compliance with the subpoena. That complaint alleges, once again, that the subpoena is overbroad and that Vance is acting in bad faith.  Notably, the complaint does not raise any of the potential claims unique to the president that were identified by the Supreme Court; for example, that complying with this particular subpoena would influence or impede Trump’s performance of his presidential duties. Presumably the president’s attorney concluded such an argument would be futile because, as the Second Circuit noted, the subpoena to Mazars actually doesn’t require the president to do anything at all.

Vance’s Motion to Dismiss

This past Monday, Vance filed a motion to dismiss the Second Amended Complaint, arguing that the complaint does not state any grounds for relief. It claims the subpoena is overbroad or was brought in bad faith, but as Vance notes, the trial judge has already rejected those same arguments in the earlier proceedings. In short, according to Vance: nothing new here.

One section of Vance’s pleading attracted considerable attention. Concerning the claim that the subpoena is overbroad, Vance notes this claim depends on the assumption that the investigation is limited to the so-called “hush money” payments in 2016. But Vance says this is incorrect: “at the time the Mazars Subpoena was issued, there were public allegations of possible criminal activity at Plaintiff’s New York County-based Trump Organization dating back over a decade.” Vance notes that his office earlier filed a redacted declaration describing the full scope of the investigation, and that based on that declaration the court had already ruled the subpoena is not overbroad.

Vance’s pleading cites newspaper articles referring to allegations by Michael Cohen and others that Trump may have manipulated the values of his holdings when dealing with banks and insurance companies and may have engaged in other questionable financial practices. These allegations could potentially lead to New York state criminal charges for crimes such as bank fraud, insurance fraud, or tax fraud. That is why the subpoenaed records are relevant, even though they extend back much further than 2016.

The Standard for Challenging a Grand Jury Subpoena

The president is facing an uphill battle in challenging the grand jury subpoena. A properly issued grand jury subpoena is presumed to be reasonable. Because it is an investigative body, a grand jury is allowed to cast a wide net when gathering information about possible crimes. It may investigate based on news reports, anonymous tips, or other investigative leads that fall far short of establishing probable cause or actual criminality. As the Supreme Court held in the leading case of United States v. R. Enterprises, the government cannot be required to establish probable cause to justify a grand jury subpoena because the very purpose of the grand jury investigation is to determine, at the conclusion of that investigation, whether probable cause exists.

In his dissent in the Supreme Court case, Justice Alito noted how difficult it would be for the president to establish that Vance’s subpoena is improper: “In New York, a grand jury subpoena need not be supported by probable cause . . . and a party seeking to quash a subpoena must show that the documents sought ‘can have no conceivable relevance to any legitimate object of investigation.’” (citations omitted). But this standard is not unique to New York; in fact, this is the general law governing all grand jury subpoenas and basically mirrors the Supreme Court’s holding in R. Enterprises.

Grand jury secrecy makes it tough for any litigant to successfully argue that information sought by a subpoena could not possibly be relevant to the grand jury’s work. As Vance argues, the president can’t plausibly claim the subpoenaed materials are outside the scope of the grand jury’s investigation because he doesn’t know what the full scope of that investigation is – and isn’t entitled to know.

It’s possible that after reviewing the documents the grand jury will conclude that no charges are appropriate, or that it does not have jurisdiction over certain offenses, or that certain crimes are time-barred. But the recipient of a subpoena – including the president – generally cannot prevent the grand jury from even examining the documents it needs in order to reach such conclusions.

Under the law governing grand jury subpoenas, Vance should prevail and ultimately get the documents. How quickly that will happen depends on the almost certain further appeals by the president and how long it takes to get those resolved. If the trial judge rules in Vance’s favor, the court of appeals may be reluctant to grant a stay, which would mean Mazars would be free to comply and turn over the documents. That could potentially happen within the next month or so.

Stalling for Time

It seems pretty clear at this point that the primary purpose of this litigation by the president is to stall for time. As Vance notes, the president has already succeeded in delaying compliance with the subpoena for nearly a year. This has prevented the grand jury from potentially completing its work prior to the upcoming presidential election. Perhaps more significantly, delay creates the risk that the statute of limitations will expire as to some charges. As Vance argues: 

Every day that goes by is another day Plaintiff effectively achieves the ‘temporary absolute immunity’ that was rejected by this Court, the Court of Appeals, and the Supreme Court. Every such day also increases the prospect of a loss of evidence or expiration of limitations periods – the precise concerns that that the Supreme Court observed justified its rejection of Plaintiff’s immunity claim in the first place.  

When it comes to statutes of limitations, Vance may have some options. If he finds an ongoing conspiracy or other continuing offense, for example, then the statute of limitations will not start to run until the most recent act in furtherance of the conspiracy, even if other criminal acts involved are too old to be charged. But it’s undeniably true that delay hurts his investigation and that potential charges could be foreclosed.

What Happens When Vance Gets the Documents?

Assuming Vance prevails and gets the documents, the public shouldn’t expect to see the tax records any time soon, if at all. They will be protected by grand jury secrecy, and as the Supreme Court noted, improper disclosure of grand jury materials is punishable as a felony in New York. During the Supreme Court arguments Justice Alito suggested he believes there is some kind of a pipeline between the DA’s office and the New York Times and that a leak is virtually inevitable, but I don’t think we should expect that to happen. If there ultimately are indictments, then depending on the nature of the charges some of the information contained in the tax records could end up being revealed.

As far as timing, many have assumed that Vance, a Democrat, is politically motivated and will try to bring a case prior to the election in order to damage Trump. But even if that were his goal, things would have to move awfully fast. Vance’s office would have to complete all court battles over the subpoena, get the documents (which are undoubtedly voluminous), review them, complete any additional required investigation, and obtain indictments in just three months. That seems very unlikely to me.

Practicality aside, it would of course be improper for Vance to act based on political motives. And if he actually has a case, he’d be much better off waiting until after the election.  Any “October surprise” indictments, regardless of their merits, would be attacked and discredited as politically motivated. And if Trump leaves office in 2021, Vance could act at that time without facing any of the constitutional issues that would arise from a state prosecution of a sitting president. If a statute of limitations expiring before November is a concern, Vance could obtain sealed indictments and then wait to reveal them until after the election. He could even seek a waiver of the statute of limitations by the president, as is sometimes done during lengthy investigations.

The real significance of this subpoena battle lies not in how it might affect the election but in what happens after November if Trump is defeated. Vance’s filing demonstrates that Trump and his organization are in some real criminal peril. And even if Trump were to try pardoning himself for any crimes on the way out the door of the White House — as many expect — presidents cannot grant pardons of state charges. New York would remain free to act.

This all suggests a real possibility of yet another unprecedented event: a new president being sworn in, and the former president facing state criminal prosecution shortly thereafter.

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