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Monday, October 07, 2019

District court abstains in Trump subpoena case (Fast Update)

The Southern District of New York abstained under Younger from a federal lawsuit by the President seeking to stop enforcement of a New York grand-jury subpoena seeking 8 years of Trump tax returns and financial records. The court abstained in a meticulous Younger analysis, then explained why the President did not enjoy immunity warranting a preliminary injunction even if it kept the case. The Younger analysis is almost certainly correct. The President's attempt to create an exceptional-circumstances exception by analogizing his immunity to double jeopardy (which some courts have held as a basis for not abstaining) was interesting, but I think properly rejected.

Given Steve's thesis that Trump and his DOJ cannot stand passing through the court of appeals, next step SCOTUS on a petition for cert before judgment?

Quick Update: The Second Circuit stayed the decision. But what did it stay and what does it mean to stay it? The district court abstaining? It makes no sense to "stay" a decision declining to hear a case. The denial of the preliminary injunction, which was arguably dicta? What does the stay of the denial of an injunction do--it can't create the injunction, which was never issued (because the district court lacked the power to issue it). What the Second Circuit wanted to "stay" is the state-court subpoena, but it has no power to do that. Ah, procedure.

Further Update: The Second Circuit order states

Appellant has filed a motion seeking an order temporarily staying enforcement of a subpoena to his accountant. Because of the unique issues raised by this appeal, IT IS HEREBY ORDERED that a temporary administrative stay is granted pending expedited review by a panel of the Court.

So the court did stay the subpoena, not the district court order. I have had some conversations with Civ Pro colleagues and the general view is this makes no sense. Administrative stays are routine  as a precursor to turning the stay to a motions panel. But there is nothing to stay here. The court cannot "stay" a dismissal of an action or the denial of an injunction. Now there are mechanisms for the court to do this, namely under the All Writs Act as in aid of the court's appellate jurisdiction. But that is not what Trump asked for (it requested a stay) and the court did not do the (I expect) more complex analysis required before issuing a writ. It seems as if the court took the usual approach to an unusual case. In the routine case, the district court enjoins enforcement of a law or reg and the court of appeals stays that injunction; here, it rotely applied that procedure in a situation that does not match.

Posted by Howard Wasserman on October 7, 2019 at 11:18 AM in Carissa Byrne Hessick, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

Comments

Gotcha. It definitely takes some unpacking.

Posted by: David N | Oct 7, 2019 9:33:08 PM

David: My thoughts are in the updated post. I did not have a chance to complete them before I went to class, although I had wanted to post the Second Circuit order.

Posted by: Howard Wasserman | Oct 7, 2019 5:26:32 PM

Curious why you say that the CA2 lacks authority to stay compliance with the subpoena. The All Writs Act gives the court authority to issue orders necc. to its jx. If Mazars releases the returns, CA2 loses the ability to issue a non-advisory opinion on the claim at issue in the district court opinion. Or am I missing something?

Posted by: David N | Oct 7, 2019 5:14:45 PM

Literally, the order reads:

"Appellant has filed a motion seeking an order temporarily staying enforcement of a subpoena to his accountant. Because of the unique issues raised by this appeal,

IT IS HEREBY ORDERED that a temporary administrative stay is granted pending
expedited review by a panel of the Court. A scheduling order will issue in the ordinary course."

Posted by: Hither and Anon | Oct 7, 2019 2:51:40 PM

The CTA2 purported to stay the subpoena, not the judgment.

Posted by: Marty Lederman | Oct 7, 2019 2:24:19 PM

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