Lawyers for President Trump and from the Manhattan District Attorney's Office clashed Tuesday over a motion to put off enforcement of a grand jury subpoena for a trove of documents related to the president's businesses that Manhattan District Attorney Cyrus Vance is seeking in a criminal probe.
Trump's attorney William Consovoy called the subpoena "an arbitrary fishing expedition … issued in bad faith to harass the president" while Carey Dunn of the Manhattan DA's Office said there "couldn't be a more particularly meticulous review" of the president's objections to the subpoena than the 100-plus-page opinion issued by a district judge last month tossing Trump's suit.
Dunn also said that Trump's lawyers failed to meet the legal standards to delay the subpoena's enforcement, including a likelihood to succeed on merits – Consovoy disputed that point.
The case was at the Supreme Court earlier this year, and the tribunal ruled in July that Trump does not have "absolute immunity" from criminal subpoenas while in office. But the court, in an opinion authored by Chief Justice John Roberts, ruled that the president "may raise further arguments as appropriate" in lower courts in an effort to keep Vance from obtaining his documents.
Manhattan District Attorney Cyrus Vance, Jr. speaks at global cyber security symposium at the Federal Reserve Bank of New York on November 18, 2015 in New York City. Vance’s office argued against a (Photo by Andrew Burton/Getty Images)
Last month the U.S. District Court for the Southern District of New York ruled that Vance could enforce the criminal subpoena for eight years of Trump's personal and business tax returns as well as other financial documents as part of an investigation that includes an inquiry into payments made to adult actress Stormy Daniels before the 2016 presidential election. The Second Circuit Court of Appeals Tuesday was hearing arguments on a motion for a stay pending appeal to further delay enforcement of the subpoena so Trump's lawyers can try to reverse the district ruling.
Dunn seemed to indicate Tuesday that the investigation is not limited to just the Daniels payments, but made clear the exact contours of the grand jury's investigation are "secret." He said there is "nothing unusual about our office or an office like ours seeking information … about out-of-state or indeed foreign transactions that have elements or effects in Manhattan … New York City is the center of worldwide commerce."
Dunn added that the headquarters of Trump's businesses are in Manhattan so he "would be remiss not to be" investigating the many public accusations of wrongdoing related to Trump's businesses.
Judge John Walker criticized the lack of transparency on what exactly the grand jury is investigating, making it difficult to determine, as the Trump legal team alleges, that the subpoena is "overbroad."
"How does one establish overbreadth … when you don't know the subject matter of the investigation?" Walker asked.
Walker later added that it seems "there is no way of really measuring overbreadth… There's breadth over what?"
There was also discussion about whether the "harm" suffered by Trump in having to turn over the documents would be "irreparable" if the court does not grant the stay. Consovoy argued that it would be.
The "status quo is irreparably altered once the documents were disclosed even to the district attorney," let alone the grand jury itself, Consovoy said. You "can't unring that bell."
Dunn replied that there are remedies if the documents are later found to be out of bounds, saying "the toothpaste can be put back into the tube sufficiently to protect people's rights." Dunn said the documents could be given back to Trump or destroyed, and that a new grand jury could be impaneled or new prosecutors assigned to the case, though he added he did not believe the situation would come to that.
Even if Vance is successful in getting Trump's documents, it's almost certain they would not become public before the Nov. 3 election, if ever. The House Judiciary Committee is also seeking Trump's documents and would likely make them public if it obtains them, but it was also rebuffed by the Supreme Court in July. It is currently engaged in a last-ditch effort to get ahold of them in the D.C. Circuit.
In addition to Walker, Chief Judge Robert Katzmann and Judge Raymond Lohier heard the arguments Tuesday. The judges said they would issue a ruling on the motion for stay pending appeal by the end of the day.
Fox News' Marta Dhanis and Barnini Chakraborty contributed to this report.