At a time when Donald Trump could really use a win, he was instead dealt another body blow on Monday, when a federal judge in Manhattan called the president’s contention that he is immune from criminal investigations “repugnant to the nation’s governmental structure and constitutional values”.
The 75-page ruling meant the Manhattan district attorney’s office can subpoena eight years of Trump’s personal and corporate tax returns. Trump appealed Monday’s decision and was granted an emergency stay at the last minute by the US Second Circuit Court of Appeals in New York.
Here is an excerpt from Judge Victor Marrero’s initial ruling (embedded in full below):
The President asserts an extraordinary claim in the dispute now before this Court. He contends that, in his view of the President’ s duties and functions and the allocation of governmental powers between the executive and the judicial branches under the United States Constitution, the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind. Consider the reach of the President’ s argument. As the Court reads it, presidential immunity would stretch to cover every phase of criminal proceedings, including investigations, grand jury proceedings and subpoenas , indictment , prosecution , arrest, trial conviction, and incarceration. That constitutional protection presumably would encompass any conduct , at any time, in any forum whether federal or state, and whether the President acted alone or in concert with other individuals . Hence , according to this categorical doctrine as presented in this proceeding, the constitutional dimensions of the presidential shield from judicial process are virtually limitless: Until the President leaves office by expiration of his term resignation, or removal through impeachment and conviction his exemption from criminal proceedings would extend not only to matters arising from performance of the President ‘s duties and functions in his official capacity, but also to ones arising from his private affairs , financial transactions , and all other conduct undertaken by him as an ordinary citizen both during and before his tenure in office .
Over the summer, state prosecutors subpoenaed Mazars USA (Trump’s accounting firm) in connection with a criminal investigation into any role the president or his businesses might have played in payments made to Stormy Daniels.
Specifically, the state is “examining whether the company falsely accounted for the reimbursements as a legal expense” which, in New York, can be a crime, and becomes a felony “if prosecutors can prove that the false filing was made to commit or conceal another crime, such as tax violations or bank fraud”, The New York Times wrote last month, detailing the case. “The tax returns and other documents sought from Mazars could shed light on whether any state laws were broken”.
Mazars is also the subject of document requests from House oversight chair Elijah Cummings. Trump has challenged every attempt by lawmakers to obtain his returns and other financial documents. In addition to suing Cummings, Trump attempted to block Capital One and Deutsche Bank from complying with congressional demands. Steve Mnuchin’s Treasury department was sued in July for refusing to hand over the president’s returns to House Ways and Means chair Richard Neal. An IRS whistle-blower complaint alleges a senior Treasury official tried to unduly influence the mandatory audit of the returns. The Treasury department’s inspector general has now opened an investigation. Trump also sued after New York passed a new law permitting local officials to hand over state returns to Congress under certain circumstances.
All of that is part and parcel of a sweeping effort to ensure that Trump’s returns aren’t released ahead of the 2020 election. The president continues to insist he has nothing to hide, a laughable proposition considering the sheer amount of resources being poured into all the litigation mentioned above.
The fight to block the subpoena in the Manhattan criminal case looks set to fail, though. Monday’s ruling was a sharply-worded rebuke of the notion that the president is above the law, which is essentially what Trump’s attorneys tried to argue last month, when they contended that the Constitution renders sitting presidents immune from criminal inquiries while still in office.
Unfortunately for America’s democracy, William Barr took Trump’s side. The Justice Department last week asked the judge to block the subpoena, although Barr stopped short of saying he concurred with the contention that sitting presidents cannot be the subject of criminal probes.
While federal prosecutors can’t charge sitting presidents, they can investigate and, as the Times notes on Monday, local prosecutors, such as [Manhattan district attorney] Cyrus Vance Jr., are not bound by the Justice Department’s position”.