A federal appeals court said today that President Trump’s accounting firm must turn over eight years of his personal and corporate tax returns to Manhattan prosecutors, a setback for the president’s attempt to keep his financial records private.
The case, which has raised new questions about presidential power, now appears headed to the United States Supreme Court.
Soon after the ruling, one of the president’s personal lawyers, Jay Sekulow, said Trump would appeal to the high court.
Trump has fought vigorously to shield his financial records, and prosecutors have agreed not to seek the tax returns until the case is resolved by the Supreme Court.
In its ruling, the three-judge appeals panel did not take a position on the president’s biggest argument — that he was immune from all criminal investigations.
A lower court had called that argument “repugnant to the nation’s governmental structure and constitutional values.”
Instead, the appeals court said the president’s accounting firm, not Trump himself, was subpoenaed for the documents, so it did not matter whether presidents had immunity.
“We emphasize again the narrowness of the issue before us,” the decision read. “This appeal does not require us to consider whether the president is immune from indictment and prosecution while in office, nor to consider whether the president may lawfully be ordered to produce documents for use in a state criminal proceeding.”
Although the panel did not rule on the question of a president’s immunity from investigation, the judges still made it clear they disagreed with Trump and thought he was unlikely to prevail on that argument.
Judge Robert Katzmann noted in the unanimous ruling that Trump had conceded that his immunity would last only as long as he held office and he could therefore be prosecuted after stepping down.
“There is no obvious reason why a state could not begin to investigate a president during his term and, with the information secured during that search, ultimately determine to prosecute him after he leaves office,” Katzmann wrote for the panel of the United States Court of Appeals for the Second Circuit.
By keeping the ruling narrowly focused on the subpoena directed at Trump’s accounting firm, the effect may be to allow the Supreme Court to uphold the decision without having to issue a far broader ruling against the president.
The Second Circuit appeals court typically considers cases with three-judge panels.
In addition to Judge Katzmann, the panel included Judge Denny Chin and Judge Christopher F. Droney.
The legal fight began in late August after the office of the Manhattan district attorney, Cyrus R. Vance Jr., a Democrat, subpoenaed Trump’s accounting firm, Mazars USA, for his tax returns and those of his family business dating to 2011.
Prosecutors in the office are examining the role of the president and his business in hush-money payments made to two women just before the 2016 presidential election.
Vance’s office sought the records in connection with an investigation into whether any New York State laws were broken when Trump and his company, the Trump Organization, reimbursed his former lawyer and fixer, Michael Cohen, for payments he made to the adult film actress Stormy Daniels, who claimed she had an affair with Trump.
Cohen was also involved in money paid to Karen McDougal, a Playboy model who also said she had a relationship with Trump.
Trump’s lawyers sued to block the subpoena, writing that the criminal investigation of the president was unconstitutional.
They asserted that presidents have such unique power and responsibility that they cannot be subject to the burden of investigations, especially from local prosecutors who may use the criminal process for political gain.
They pointed to impeachment as the correct way to address any potential wrongdoing by a president.
Trump’s lawyers also have called the district attorney’s action an “effort to harass the president by obtaining and exposing his confidential financial information, not a legitimate attempt to enforce New York law.”
The immunity argument has never been tested in court.
Federal prosecutors are barred from charging a sitting president with a crime because the Justice Department has decided that presidents have temporary immunity from prosecution while they are in office.
But that policy has not precluded investigations of the president.
Trump and other sitting presidents have been the subjects of federal criminal investigations, and local prosecutors like Vance have not been bound by the policy.
On Oct. 7, Judge Victor Marrero of Federal District Court in Manhattan issued a 75-page opinion, rejecting Trump’s position.
Trump appealed to the Second Circuit, and in oral arguments last month, William S. Consovoy, a lawyer for Trump, told the panel, “We view the entire subpoena as an inappropriate fishing expedition not made in good faith.”
During the arguments, the president’s immunity claim seemed to crystallize when Judge Chin cited an audacious statement Trump once made — that he could stand on Fifth Avenue and shoot somebody, without being hurt politically.
Chin asked Consovoy about the potential effect of the president’s immunity claim in such a hypothetical situation.
“Local authorities couldn’t investigate?” Chin asked, adding: “Nothing could be done? That’s your position?”
“That is correct. That is correct,” Consovoy said.
The Justice Department, led by William Barr, had also weighed in, writing in court filings that Vance’s subpoena should be blocked for now but not adopting Trump’s absolutist view that a sitting president could never be subject to criminal investigation.
Although the United States is not a party to the lawsuit, it has the right to give its views.
In an appellate brief, the Justice Department wrote that Vance’s office should not be able to obtain the president’s personal records unless it could show that they were central to the investigation, not available elsewhere and were needed immediately, rather than after Trump leaves office.
“A subpoena directed at a president’s records should be permitted only as a last resort,” the department wrote.
Under a deal reached by Trump’s lawyers with Vance’s office, the subpoena will not be enforced while Trump seeks review of the appellate ruling in the Supreme Court, provided that he asks that the court hear the case in its current term, which ends in June.
Attribution:The New York Times