On Monday, a three-judge panel for the Second Circuit Court of Appeals ruled: "Presidential immunity does not bar a state grand jury from issuing a subpoena in aid of its investigation of potential crimes committed by persons within its jurisdiction, even if that investigation may in some way implicate the president."
Speaking with CNN "New Day" hosts John Berman and Alisyn Camerota, the former federal and state prosecutor said the lower court's decision and detailed written opinion -- which was unanimous -- was so strong the Supreme Court may decline taking up the president's appeal.
"Bottom line here is the Supreme Court may just not hear this at all," Berman suggested. "They may say, 'You know what? There's no case here because the appeals court was so sweeping in its ruling. Which was to say, 'You know what? You don't really have the immunity, but we don't even have to make that decision because your case is so bad."
"The Supreme Court does not have to take any case it does not want to," Honig explained. "The Supreme Court only takes a very small fraction of the cases that people try to get in front of it -- usually under 5 percent."
"Now when the Supreme Courts decides whether to take a case they're looking typically at a few things," he elaborated. "First of all, is this a close call? I think the Second Circuit opinion makes clear in their view it's not a close call at all -- it was a 3-0 decision. Same as the judge below, so now four judges have said this is not a close call."
"They're also looking for, is this the kind of thing that different courts around the country are disagreeing on and there's no disagreement," he continued. "This is the first time this specific issue has come up. I think there's a chance the Supreme Court says no thanks. If that happens, then yesterday's decision stands and the district attorney gets the tax returns."
Asked for a time frame, Honig replied, "The Supreme Court is on its own timeline. I think we will know within the next two, three weeks whether they are taking it or not."
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