SDNY COURTHOUSE, July 16 – Following the U.S. Supreme Court decision, on July 16 U.S. District Court for the Southern District of New York Judge Victor Marrero held a proceeding in Trump v. Vance, Jr. et al, 19-cv-8694 (VM).
Inner City Press live tweeted it: Judge Marrero before given each side an initial 20 minutes read out questions that he has, as he did in the Tmobile Sprint trial, see here.
Judge Marrero: "What standard should the Court apply to determine bad faith? ... The Court already considered Article II burden. It was aware of the facts of the Mazars subpoena. Do the parties believe that the standards for retaliation differ from bad faith? Now?
Judge Marrero: Next, the question considering discovery. Does the DA agree discovery would be appropriate if there is no motion practice, or if motion practice does not resolve the case? I will give each side 20 minutes to address these matters and anything else.
Will Consovoy, for Donald J. Trump: We understood the Court's order as asking us to ID issues for briefing. We are continuing to explore them based on the Supreme Court's decision(s). On fishing expeditions, the Court had it right - the subpoena has to be tailored
Consovoy: We think there should be an amended Complaint. We believe we can further allege this is not a properly tailored subpoena. It's copied verbatim from a Congressional subpoena. We are skeptical about the similarities. There's been no discovery yet
Consovoy: With respect to bad faith and harassment, it has not yet been addressed in the context of the subpoena. The President is still exploring the issues he'll raise on remand if you allows it. The focus has been on the initiation of the investigation itself
Consovoy: On Article II, if the President were to make Article II argument they would be more focused on this particular subpoena. We'd focus less on stigma. With respect to retaliation, we do think there is a difference from bad faith and harassment.
Consovoy: There's the choosing of the President as a target for political reasons. We are still choosing our arguments. If an amended Complaint if filed as he hope the Court allows, we'll want discovery to understand the nature and scope of this investigation.
Consovoy: Perhaps interrogatories could be appropriate, to give the President an equitable chance, especially on over-breadth issues. How could a NY County subpoena deal with overseas, and a hotel in Washington DC?
Judge Marrero: Through the hypothetical I raised, I asked about termination for bad faith. Do you have an answer?
Consovoy: Could you repeat? Judge Marrero: Suppose a hypothetical DA has evidence that a hypothetical incumbent President engaged in crime.
Judge Marrero: Supposed the evidence could provide support for an indictment? How should the hypothetical DA proceed? How should the Court proceed?
Consovoy: If and when the DA believes it proper, the DC could ask for in camera review.
Consovoy: The target, here the owner of the records, the President, should be given an opportunity to challenge the in camera review.
Judge Marrero: Thank you. Anything more?
Consovoy: We are only outlining area for potential argument. Judge Marrero: DA, Mr Dunne?
Carey Dunne for DA Cyrus Vance: This lawsuit has delayed our collection of evidence. We accept that the President has the right to articulate any new claims, except Constitutional immunity. But there's not special heightened standard. It's like he's a CEO.
Dunne: Our proposal is, whatever he left left, bring it on in a final submission. Let's not let delay kill this case. Justice delayed can be justice denied. The bottom line is, there is nothing new here. No new facts not raised before. They've had a year.
Dunne: I won't address this notion of copying the subpoena. There's nothing sinister about that. On your hypothetical, I think a request for in camera might be appropriate, though I'm not sure it will be needed. The President's claims will be facial insufficient.
Dunne: The Mazars subpoena is not even served on the President. He's not the one responding to it. Now that the immunity claims are gone, he does not even have standing for claims that belong only to Mazars. I do not think discovery will be necessary.
Dunne: Let the President file an amended Complaint. We'll file a motion to dismiss, which we think will prevail. Our position is, Bring it on.
Consovoy: We filed jointly. It is unfortunate they're now saying they want to move faster.
Consovoy: Look at Page 16 of the Supreme Court's decision, there can be no fishing expeditions, particular when it involves the President. So the President should have special protections against fishing expedition. The goal posts are being moved as we speak.
Consovoy: There is no dispositive motion pending before the Court. We'll file a 2d Amended Complaint, then motion practice expeditiously.
Dunne: We should avoid any new special showing standard. No increased scrutiny.
Judge Marrero: I endorse the schedule. So I will await your filings, on the schedule agreed to.
Inner City Press will continue to cover this case.
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