"The court stacked the deck against the president" by describing Trump's effort at a backdoor effort to relitigate what SCOTUS rejected, Consovoy claims.
Judge Leval:
"I'm a little puzzled because eventually, in order to quash a subpoena... one must make a showing that would support the proposition that the subpoena was [issued] in bad faith or overbroad."
Judge Leval:
We are "pondering a question" that seems to be "irrelevant."
Consovoy:
"I wouldn't say plausibility is irrelevant. It is rather straightforward."
Judge Leval appears deeply skeptical of the position of Trump's attorney, grilling him on every point.
He notes that the DA has stayed enforcement of the subpoenas of his own volition.
Judge Leval calls the allegations of Trump's complaint "contrived."
Judge Leval notes that SCOTUS rejected Trump's claims of immunity:
"The president is not wielding any special privileges as the president of the United States."
Consovoy says he disagrees Trump holds no special privileges as president.
Judge Katzmann presses Consovoy on Trump's position that the DA's probe is limited to Michael Cohen's payments.
Without revealing the scope of the probe, Manhattan DA Vance has suggested it could be much broader.
Consovoy says that Vance essentially "photocopied" the congressional subpoenas, and he cites the similarities as evidence of bad faith
Katzmann notes that grand jury probes are traditional broad and secret.
"Are you asking us to change the ways grand juries have worked since time immemorial" just because we are dealing with the POTUS, Katzmann asks.
Judge Lohier, the final member of the panel, questions Consovoy about whether "if we determine that there's some problem with the scope of the subpoena... we are empowered to draw some limitation."
Judge Lohier:
"So if we were to limit the subpoena to tax returns that are for domestic transactions between 2011 and 2016, would that be something that you could live with?"
Consovoy:
"I don't think so, your honor."
Lohier:
"Why not?"
Consovoy: "That would be far narrower, no question. It's far less overbroad."
Judge Lohier: "Is there a request for documents ... that would not, in your view, be overbroad?"
Consovoy mocks Manhattan DA Vance's news-report citations for possible scope of the investigation as "internet searches" of every potential misconduct by the Trump Org that he can find.
Judge Leval is back up now.
He says he does not understand the proposition that requests for documents that cover a number of years suggests overbreadth.
Leval adds that he does not understand why the fact that it includes operations in foreign countries would suggest overbreadth either.
Consovoy notes that Manhattan DA Vance's jurisdiction is limited to New York County.
Leval: ... Isn't he a New York taxpayer?
Consovoy: He was then.
But Consovoy adds that does not give Vance jurisdiction to pursue him anywhere in the world.
Consovoy calls the scope of a probe Judge Leval is describing as a "fishing expedition."
Leval: "How is it a fishing expedition if a taxpayer's tax returns cover operations nationwide, worldwide?"
Consovoy says that a NY taxpayer cannot be subject to a "worldwide audit."
Lohier: "If it's investigating fraud in a tax return by a New York taxpayer," that would include returns of transactions beyond New York—even including Indonesia.
Carey Dunne is up for the Manhattan DA's office:
He calls the grand jury subpoenas "garden variety," slamming the "inflammatory assertions and inferences" of Trump's complaint.
Dunne takes on Trump's claim that the DA's probe is limited to Michael Cohen's payments,
The complaint does not cite a single article that says that, Dunne notes.
Judge Leval asks whether DA Vance made any statement suggesting that the probe was limited to the hush payments.
"No, your honor," Dunne replies, adding the DA's office made "no statements" because of grand jury secrecy.
Dunne adds that they have disclosed "generically" the scope of the investigation in response to this litigation.
Dunne says that the DA has asserted on the record consistently that it is not limited to those hush payments.
Leval adds the DA has not even said that the probe is even addressed to those payments.
"Correct, your honor," Dunne says.
"We're through the looking glass here," Dunne adds.
Dunne says the inference by Trump's legal team as to the scope of the investigation is not only "implausible," but "preposterous."
Dunne: "As everybody knows, there's nothing unusual about our office" investigating transactions outside of New York or even internationally.
"Since New York City is at the center of worldwide commerce," Dunne notes, that is necessary as a matter of "experience & common sense."
Leval says that the stay that the Second Circuit ordered earlier this month did not relate to the enforcement of the subpoenas, only on the dismissal of Trump's complaint.
Trump's attorney William Consovoy is back up for rebuttal arguments.
Leval presses him on whether or not there is a stay of the subpoenas right now, and whether it was ordered by the Second Circuit—or Vance's choice.
Consovoy says that Vance's agreement, in combination with the court's order, means there is a stay.
Leval does not seem persuaded. He asks for further briefing from the parties on this issue.
Consovoy says that Vance's subpoena's language adopts "word-for-word effectively" that of the House Oversight Committee.
Judge Leval asks his colleague to direct the parties to submit briefings as to whether there is anything that is staying the enforcement of the subpoenas, either a court-ordered stay or voluntary one by the DA.
Trump has entered the courtroom and is seated at the defense table with his attorneys.
Trump's attorney Emil Bove begins his arguments in the so-called Sandoval hearing, seeking to prevent prosecutors from invoking other prior bad acts on cross-ex if his client takes the stand.
In Trump's NY criminal case, prosecutors file their so-called "Sandoval" notice—disclosing uncharged prior bad acts they intend to use at trial to impeach his credibility.
The list in the document rattles off the NYAG civil fraud case, the E. Jean Carroll case, and more.
"If the defendant chooses to testify, the People intend to inquire regarding the following"
Read the full list of litigation prosecutors intend to confront Trump with, if given the green light by the judge.
A Sandoval hearing establishes the permissible scope of cross-examination in order for the defendant to make an informed decision about whether to testify.
The notice shows that, for Trump, the list of prior bad acts, is quite long.
We're gearing up for the second day of jury selection in Trump's criminal case in New York. Some nine jurors passed through the initial screening round, though none are empaneled, yet.
I'm reporting live from the courthouse every day. Follow here.
Per pool at 8:34 a.m. ET:
"Motorcade is on the move."
For my written reporting:
I will periodically fire off quick dispatches, and longer analytical pieces, on the trial for @Just_Security.
You can find the former category here. (Bookmark it!)