President Trump on Friday repeated his assertion of sweeping executive immunity — arguing in court that, because he is president, he cannot be investigated by any prosecutor, anywhere.
Trump’s personal attorneys made the argument in a filing with the U.S. Court of Appeals for the 2nd Circuit Court in New York. They are seeking to overturn a lower court’s dismissal of a suit the president filed seeking to block Manhattan District Attorney Cyrus Vance Jr. (D) from obtaining Trump’s tax returns.
“The President is immune from criminal process while in office, and a grand-jury subpoena (a coercive order backed by the State’s threat of contempt) is certainly a form of ‘criminal process,’ ” wrote Trump’s private legal team, led by William Consovoy.
The subpoena in this case was not actually directed at Trump. Vance has subpoenaed the records from Trump’s longtime accounting firm, Mazars USA, as part of an investigation that appears targeted at possible falsification of business records related to a scheme to silence two women who alleged that they had affairs with Trump.
In his filing Friday, Trump returned to an argument that a lower-court judge had already rejected earlier this week. He argued that, as president, he is too important to be prosecuted while in office.
And if presidents are too important to be prosecuted, Trump said, then it follows that they must also too important to be burdened by an investigation by prosecutors.
“If the Court holds that the President is not immune from state criminal process, then Presidents must contend not just with [Vance] but with every state and local prosecutor across the country” seeking to investigate them, Trump’s attorneys wrote.
Only Congress can investigate the president through the impeachment process, Trump argued. He said the Constitution gives the federal government supremacy over the states and prohibits state-level investigations which would eat up the president’s time and sully his prestige.
“Investigating the President plainly violates the Supremacy Clause,” where the Constitution says that federal authority supersedes that of states, Trump’s attorneys argued. “That Clause mandates that States cannot ‘defeat the legitimate operations’ of the federal government.”
The Justice Department also filed a brief in support of the president, though it stopped short of endorsing Trump’s precedent-breaking assertion that he has absolute immunity from investigation.
Instead, the Justice Department conceded that there were some instances when a local prosecutor might legally seek a president’s documents — but this was not one of them.
“Presidential materials ‘should not be treated as just another source of Information,’ ” the Justice Department said, quoting a prior ruling to explain how presidential subpoenas might be permitted, but only in extraordinary circumstances. “A subpoena directed at a President’s records should be permitted only ‘as a last resort.’ ”
The department said Vance needed to show a “demonstrated, specific need” for the data in Trump’s tax returns, as well as to demonstrate that he had already tried to obtain the same facts through other means.
“The court should be ordered to stay enforcement of the subpoena as to the President’s personal records unless and until — at a minimum — the District Attorney is able to make the required showing of particularized need,” the Justice Department wrote.
Trump’s arguments already have been rejected once in this case.
Earlier this week, U.S. District Judge Victor Marrero dismissed Trump’s lawsuit, saying that Trump’s assertion of sweeping immunity was “repugnant” to constitutional values.
“The Court cannot square a vision of presidential immunity that would place the President above the law with the text of the Constitution,” or any precedent, Marrero said.
A three-judge panel of the 2nd Circuit will hear the case on Oct. 23.
Vance has until Tuesday to file his response to the arguments from Trump and the Justice Department. His office did not immediately respond to a request for comment Friday.
In past filings, Vance’s office has rejected Trump’s claim of immunity from investigation, saying that “no such investigative immunity exists for the President or anyone else.”
Current Justice Department legal opinions hold that presidents cannot be indicted by federal prosecutors while in office. But that does not prevent presidents from being investigated by grand juries or investigators such as Robert S. Mueller III, who as special counsel examined whether Trump obstructed justice as part of his investigation into Russian interference in the 2016 election.
This case is one of three instances in which Trump — facing investigations into his actions before he became president — has sued his investigators, seeking to block them from obtaining his financial documents.
Earlier Friday, the U.S. Court of Appeals for the District of Columbia Circuit ruled against Trump in another of those cases, finding that the House Oversight Committee should be able to obtain his tax returns from Mazars USA.
In that case, facing an inquiry from Congress rather than a prosecutor, Trump’s attorneys effectively reversed the argument they have made against Vance.
By investigating him without a “legitimate legislative purpose,” Trump argued, Congress was giving up its proper role and usurping the job of prosecutors.
The appeals court did not accept that argument.
“Contrary to the President’s arguments, the Committee possesses authority under both the House Rules and the Constitution to issue the subpoena, and Mazars must comply,” Judges David S. Tatel and Patricia A. Millett wrote for the court in that case.
Despite Trump’s loss in that case, the House Oversight Committee is not likely to obtain his tax returns anytime soon: The subpoenas will remain on hold while Trump decides to appeal.