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Appellate judges skeptical of Trump's argument to block subpoena for financial records

Posted September 25, 2020 1:32 p.m. EDT

— A lawyer for President Donald Trump told a federal appeals court Friday that there is no request for documents that could be made as part of the Manhattan district attorney's investigation concerning hush-money payments issued during the 2016 presidential election that he wouldn't consider overbroad.

During oral arguments as part of Trump's lawsuit to block a subpoena to his longtime accounting firm for years of his financial records, Judge Raymond J. Lohier asked Trump lawyer William Consovoy: "Is there a request for documents in this case -- let's assume that we're just talking about the [Michael] Cohen payments -- is there a request for documents that would not, in your view, be overbroad?

"I think the answer is probably no, your honor," Consovoy said, to which the judge replied: "That's a problem. That's a problem. That's a problem." He added: "You see the problem."

The three-judge panel expressed much skepticism during the 90-minute oral arguments about Trump's lawyers' assertions that the subpoena issued as part of District Attorney Cyrus Vance's investigation is overbroad and was made in bad faith. The panel didn't make a ruling Friday.

"Grand juries, as you know, are given broad authority to do their work," Judge Robert Katzmann said to Consovoy. "Are you asking us to change the way grand juries have done their work for time immemorial just because we're dealing with somebody who is president of the United States?"

Consovoy disputed that was the case.

A third member of the panel, Judge Pierre N. Leval, questioned why it would be considered overbroad for a district attorney who might be investigating tax fraud to need information from a wide range of entities and locations where the company in question conducted business.

"To say that a district attorney and a grand jury investigating fraud in tax returns can only look at business operations that were conducted on Manhattan -- not Queens, not Washington, DC, not Indonesia, not any of the places covered by the tax returns -- that seems to me to be far-fetched," the judge said.

An attorney for Vance's office, Carey Dunne, told the panel that his office has repeatedly said its probe isn't limited to the Cohen payments, saying "we have affirmatively asserted on the record consistently that it is not limited to the 2016 payments." He added: "I can't help but say I feel like we're through the looking glass here."

In response to the Trump camp's suggestion that an earlier, narrower subpoena issued to the Trump Organization was evidence of the limits of the Vance probe, Dunne told the panel: "The assertion and inference that the first subpoena must necessarily define and limit the scope of any investigation violates, again, judicial experience and common sense in a way that doesn't just render the inference implausible; I suggest it renders the inference preposterous."

The panel ordered both sets of lawyers to file briefs by Tuesday as to whether there is a court-ordered stay of the subpoena or a voluntary one by the district attorney's office.

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