A federal judge on Monday dismissed President Donald Trump’s lawsuit seeking to block the Manhattan district attorney from obtaining the president’s tax returns as part of an investigation into hush-money payments during the 2016 campaign.
That decision does not mean Trump’s tax returns will be handed over immediately. Trump appealed within minutes, and an appeals court put the case on hold until it can hear the president’s challenge.
But Monday’s ruling by U.S. Judge Victor Marrero was still a broad rejection of Trump’s precedent-shattering argument in this case.
The president argued that, as long as he is president, he cannot be investigated by any prosecutor, anywhere, for any reason.
Marrero said that was “repugnant” to an American ideal as old as the Constitution: that no man, even a president, is above the law.
“The Court cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution, the historical record, the relevant case law” or any other authority, Marrero wrote.
“This Court cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process,” Marrero wrote in another section of his 75-page ruling.
Trump reacted on Twitter, writing that Democrats “have failed on all fronts, so now they are pushing local New York City and State Democratic prosecutors to go get President Trump. A thing like this has never happened to any President before. Not even close!”
Jay Sekulow, a private attorney for the president, struck a more positive tone: “We are very pleased that the U.S. Court of Appeals for the Second Circuit has issued a stay of the subpoena.”
The lower court decision marked a key setback for Trump, who has taken an unorthodox, aggressive approach to fighting off investigations from prosecutors and congressional committees seeking his tax returns and financial documents. He has sued the investigators and the companies they subpoenaed, including his longtime accounting firm Mazars USA and two of Trump’s banks.
Judges have ruled against Trump twice in other cases, but those lawsuits are still tied up in appeals in New York and Washington, and the subpoenas have not been enforced.
In this lawsuit, Trump said Manhattan District Attorney Cyrus Vance, a Democrat, did not need eight years of his tax returns to examine whether any laws were broken by the 2016 payments. He called the subpoena to Mazars “a bad faith effort to harass the President by obtaining and exposing his private financial information, not a legitimate attempt to enforce New York law.”
The judge’s opinion Monday raised the prospect that by seeking to vastly expand his immunity from prosecution, Trump may wind up undercutting the immunity he already enjoyed.
The Justice Department has previously declared that presidents cannot be indicted by federal prosecutors, relying on a series of legal memos from White House lawyers going back to the 1970s.
In this case, Trump had sought to turn those protections into a more far-reaching legal shield. Citing those memos, he asserted he should have immunity not just from indictment, but also any sort of investigation – and not just from federal prosecutors, but local prosecutors like Vance, too.
But Marrero, nominated to the bench in 1999 by President Bill Clinton, rejected both arguments – and also questioned the Justice Department memos they relied on. He wrote that the arguments they made rely on “conjurings of remote prospects and hyperbolic horrors” and that – in some cases – indicting a president may be worth the cost.
For its part, the Justice Department has filed a brief supporting Trump in this case – urging Marrero to consider Trump’s arguments, without explicitly endorsing his argument that he cannot be investigated by anyone.
Soon after the ruling, the president’s lawyers quickly turned to the New York-based U.S. Court of Appeals for help and raised the prospect of going directly to the Supreme Court if the 2nd Circuit did not act swiftly.
The president’s lawyers called the investigation unprecedented and said in their filing Monday that the case raises novel, consequential questions about “the scope of the President’s constitutional immunity from state criminal process.”
“For the first time in our nation’s history, a county prosecutor has subjected the sitting President of the United States to criminal process,” Trump’s lawyers told the appeals court.
The District Attorney’s objective, they wrote, “could not be any clearer: he wants to obtain the President’s financial records before this Court (and the Supreme Court) have any opportunity to review whether the subpoena is constitutional.”
At the 2nd Circuit, a clerk ordered that the subpoenas be put on hold until judges could hear the arguments in an expedited proceeding. Both the president and Vance’s office asked the court to quickly schedule oral argument to happen before the end of the month.
The president’s lawyers pressed for speedy review by the appeals court in part because of time constraints. The District Attorney had agreed to stay the subpoena only until 1 p.m. Monday, and Vance would have been allowed to enforce the order had the appeals court not acted.
In contrast, in the two pending cases involving congressional subpoenas for the president’s financial records, lawyers for the House have agreed to put those orders on hold until the appeals are resolved.
Vance is investigating payments made in the last weeks of the 2016 campaign to two women who said they had affairs with Trump years earlier. Trump’s former attorney Michael Cohen later pleaded guilty to federal campaign-finance violations for arranging those payments, and he said he had been reimbursed by the Trump Organization, which the president still owns. Federal prosecutors later concluded their investigation into those payments without charging anyone beyond Cohen.
Now, Vance’s office is investigating to see whether any state laws were violated. Its subpoenas asked for eight years of tax returns from Trump and his businesses, as well as other documents. Vance has said that, at this stage of the investigation, Trump “has not been identified as a defendant, nor is there an assumption he will be.”
(c) 2019, The Washington Post · David A. Fahrenthold, Ann E. Marimow