WASHINGTON — New York City prosecutors are very likely to obtain President Donald Trump’s tax returns after a major U.S. Supreme Court ruling, but it may not happen before the Nov. 3 election if he argues in lower courts as expected that their request was too broad and made in bad faith, legal experts said.
Manhattan District Attorney Cyrus Vance is seeking eight years of Trump’s business and personal tax returns and other financial documents as part of a criminal investigation involving a grand jury into the Republican president and the Trump Organization, his family’s real estate business.
“I believe the district attorney and the grand jury will get the requested documents, but not right away,” said Jessica Roth, a professor at Cardozo School of Law in New York and a former federal prosecutor. “We have many weeks and months of further litigation ahead.”
The Republican president, a wealthy real estate developer who refused to give up his holdings in the family business after taking office, has fought hard to keep details of his finances secret. Trump has refused to release his tax returns as other presidents have done and sued to try to block enforcement of subpoenas by Democratic lawmakers and prosecutors for his financial records.
The Supreme Court on Thursday ruled against Trump’s bid to block Vance’s subpoena to Trump’s accounting firm Mazars USA for the financial records, rejecting the president’s claim of absolute presidential immunity from criminal proceedings.
But the justices sent the matter back to lower courts for further litigation, giving Trump the opportunity to object to the subpoena on other grounds.
The ruling, written by Chief Justice John Roberts, said Trump “can challenge the subpoena as an attempt to influence the performance of his official duties. And he can argue that compliance with a particular subpoena would impede his constitutional duties.”
“We’re evaluating the appropriate next course of action,” Jay Sekulow, Trump’s personal lawyer, said on Friday.
Trump could argue that the subpoena is too burdensome or was issued in bad faith because of political motivations, said George Washington University law professor Jonathan Turley, who testified last year as a Republican witness in House of Representatives Trump impeachment hearings.
Trump is unlikely to convince a court that the subpoena is too burdensome because it seeks information from Mazars, a third party, and not the president himself, said Harry Sandick, a former federal prosecutor in Manhattan.
“Burden is a really hard argument to make,” Sandick said.
U.S. District Judge Victor Marrero, who is presiding over the case, said last October he had seen little evidence of political bias in Vance’s pursuit of the financial records.
Roth said evidence that has been public, including congressional testimony by Trump’s former personal lawyer Michael Cohen, provides a “reasonable basis” for Vance’s investigation. Cohen told lawmakers that Trump had inflated and deflated certain assets on financial statements between 2011 and 2013 in part to reduce his real estate taxes.
A loss for Trump before Marrero could still be appealed to the Manhattan-based 2nd U.S. Circuit Court of Appeals, likely delaying production of the documents until after the presidential election in which Trump is seeking a second four-year term in office against Democratic candidate Joe Biden.
Sandick said he expects that prosecutors will obtain the tax returns from Mazars in late 2020 or early 2021.
Roth said prosecutors could get hold of the documents by November if Marrero rules quickly, which he has shown a tendency to do so far, and his ruling is quickly upheld on appeal.
Even if the financial records are turned over before the election, they likely would not be made public quickly barring an illegal leak to media, Sandick said. Under U.S. law, grand jury materials must be kept secret, though they could eventually end up in publicly available court filings if a criminal case is brought in the investigation against Trump or someone else.