Trump loses tax return subpoena appeal, but his lawyer will ask Supreme Court to stay ruling

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U.S. President Donald Trump arrives for a news conference in the Brady Press Briefing Room at the White House in Washington, U.S., August 19, 2020.

Tom Brenner | Reuters

A federal appeals court in Manhattan on Wednesday rejected President Donald Trump‘s effort to block enforcement of a grand jury subpoena that demands years of his income tax returns from his accountants.

But the appeals court suspended enforcement of that subpoena by Manhattan District Attorney Cyrus Vance Jr., giving Trump time to ask the Supreme Court, for a second time, to step into the case and block the subpoena permanently.

Trump’s lawyer Jay Sekulow said later Wednesday morning that he will ask the Supreme Court to stay the unanimous decision against the president by the three-judge panel on the U.S. Court of Appeals for the 2nd Circuit.

This is the second time that the same appeals court has rejected Trump’s request to deny Vance access to tax returns dating back to 2011 by upholding a lower Manhattan federal court ruling.

Trump lost an earlier appeal of a similar ruling when he successfully asked the Supreme Court to review the case.

The Supreme Court this summer said that Trump did not have an “absolute” right to prevent his accounting firm Mazars USA from complying with the subpoena just because he is president.

But the high court at the same time had allowed Trump to raise new objections with a Manhattan federal court judge, who had rejected his first effort to stop the subpoena from being enforced.

However, the judge quickly denied Trump’s new arguments that the subpoena was overbroad and issued in bad faith. That loss triggered Trump’s second appeal, which was denied Wednesday.

Vance is seeking tax returns related to the president and the Trump Organization and related entities as part of a criminal investigation of Trump’s company.

Court filings suggest that the probe is not only eyeing hush-money payments made shortly before the 2016 presidential election to two women who said they had sex with Trump, but also possible tax crimes, as well as insurance and bank fraud by the company in connection with the valuation of Trump-owned assets.

Vance’s office already said he would not seek to enforce the subpoena, which was issued in August 2019 by a grand jury, to allow Trump time to exhaust his appeals.

The Supreme Court is not required to take any appeal of a lower court decision.

In its opinion Wednesday, the panel of judges briskly brushed aside Trump’s claims.

“We find that the claim of overbreadth is not plausibly alleged for two interrelated reasons,” the appeals panel wrote.

The panel said that Trump’s “bare assertion that the scope of the grand jury’s investigation is limited only to certain payments made by” his then-personal lawyer Michael Cohen in 2016 to Stormy Daniels, the porn star who was one of two women who said she had sex with Trump, “amounts to nothing more than implausible speculation.”

“Second, without the benefit of this linchpin assumption, all other allegations of overbreadth — based on the types of documents sought, the types of entities covered, and the time period covered by the subpoena, as well as the subpoena’s near identity to a prior Congressional subpoena — fall short of meeting the plausibility standard,” the court said.

“Similarly, the President’s allegations of bad faith fail to raise a plausible inference that the subpoena was issued out of malice or an intent to harass. Accordingly, we affirm” the lower court ruling.

The panel was composed of the judges Pierre Leval and Robert Katzman, both of whom were appointed to the 2nd Circuit by President Bill Clinton, and Raymond Lohier, who was appointed to the appeals court by President Barack Obama.

Vance’s office declined to comment on the ruling.

Trump’s lawyer and a White House spokesman did not immediately respond to requests for comment on the ruling.

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