Steve Vladeck

Steve Vladeck

14-11-2019

18:21

1. With two of the subpoenas for @realDonaldTrump's financial records likely to make their way to #SCOTUS in the next 36 hours, I wanted to put together a detailed #thread walking through where we are and what happens next. Apologies in advance, but this is going to get nerdy.

2. The first case is Trump v. Vance, arising out of a subpoena issued to Mazars by New York County (Manhattan) District Attorney Cyrus Vance. In that case, the President has asked the federal courts to issue an injunction barring Mazars from complying with a _state_ subpoena.

3. The district court refused to issue the requested injunction. Last Monday, the federal appeals court affirmed that decision, almost entirely because it concluded that President Trump did not have a substantial "likelihood of success on the merits."

4. But in that case, Vance agreed that he would not attempt to enforce the subpoena until #SCOTUS rules, so long as Trump filed his appeal (a "cert. petition") within 10 days of the Second Circuit's ruling (instead of the 90 days allowed under the rules). That deadline is today.

5. That means that, so long as Trump files today, there will be no emergency for #SCOTUS to resolve in the Vance case; it can address the cert. petition in "ordinary course." Vance would have 30 days to respond (I doubt he'd use them all), and Trump would have 14 days to reply.

6. #SCOTUS usually decides whether to take up new cases at its regular "Conference." And after Friday, December 13, its next regular Conference isn't until Friday, January 10. So I think it's a good bet that _that's_ when the Justices would decide whether to take the Vance case.

7. A mid-January grant is just about the last moment the Court can typically add a case and still have it argued and decided during the current Term. So if that happens in the Vance case, I think we'd be looking at oral argument in April, and a decision by the week of June 29.

8. The D.C. case, arising out of a subpoena from the House Oversight Committee to Mazars, is a bit trickier. As in New York, the district court rejected Trump's effort to bar Mazars from complying with the subpoena. And last month, the D.C. Circuit (by a 2-1 vote) agreed.

9. And yesterday, the Court of Appeals declined Trump's request to have the full court rehear his appeal: But my understanding is that, _unlike_ in the Vance case, the House has _not_ agreed to hold off on enforcing the subpoena pending #SCOTUS review.

10. If that's correct, then Trump will not only likely _appeal_ that ruling to #SCOTUS, but he'll also likely first ask the Justices for a "stay," that is, an order freezing the status quo (and preventing enforcement of the subpoena) while that appeal is pending before the Court.

11. In general, a stay is an extraordinary remedy, and most applications for them are denied by the Court. Not only does the applicant have to convince five Justices that he is likely to prevail on the merits, but he has to show that, absent a stay, he'll suffer irreparable harm.

12. But as I've documented in a brand-new @HarvLRev essay, the Trump administration has asked for _far_ more stays from #SCOTUS than its predecessors (the next request will be the 22nd in less than three years)β€”and has received relief far more often:

13. And an application for a stay tends to be resolved much faster than a cert. petition. So even though we may not know until January whether the Court will take the Vance case, we may know by Thanksgiving whether there are five votes to freeze the status quo for the time being.

14. Which leads to the most important point: There are plenty of reasons why a Justice who is otherwise inclined to vote against Trump on the merits might still want to freeze the status quo until the full Court can conduct plenary review. But the reverse is not remotely true.

15. Thus, if #SCOTUS grants a stay in the D.C. case, I think all that we can reasonably conclude from that is that the Justices are likely to take one or both of these cases on the merits and decide them this Termβ€”without any meaningful insight into how they'll ultimately rule.

16. But if the Court _denies_ a stay, even by a 5-4 vote, that would be a huge setback for Trump, and a pretty powerful sign that, whether the Court ends up taking one or both cases on the merits or not, the cases are quite likely to end with him losing. What happens then?

17. It's easy to understand why folks might be worried about Trump defying an adverse #SCOTUS ruling in one of these cases. But here, he's not the defendant; he's the plaintiff. And there's no reason to believe that Mazars, on the far side of such a ruling, wouldn't comply.

18. Of course, the damaging nature of the information sought in these subpoenas may end up paling in comparison to what's already public and what's coming out in the House hearings. But hopefully this helps put into perspective the legal steps as these cases get to #SCOTUS. /end


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