A federal judge rejected Donald Trump’s claim that he is immune from an investigation surrounding a subpoena for his tax returns from 2011 to the present. It may be the beginning of the end of Trump’s denials on releasing his tax returns. During the 2016 presidential campaign and afterwards, Trump asserted that an IRS audit prevented him from releasing his tax returns. In September 2019, Manhattan District Attorney Cyrus Vance subpoenaed eight years of Trump’s tax returns prepared through his accounting firm. A Grand Jury sought the returns to ascertain whether Trump committed any violations of New York law in relation to 2016 hush money repayments stemming from the Stormy Daniels payments by former attorney Michael Cohen.
Trump filed a lawsuit to block any actions to obtain his tax records, including the Grand Jury subpoena of his accounting firm and the Trump Organization. Trump’s asserts that as president of the U.S., absolute immunity prevents any criminal investigations during his term. The New York federal court found that the rationale is repugnant and preposterous. The assertion is an overreach of executive power, according to the court. If not, then the immunity shield would be limitless. Trump’s assertion would mean that his family, associates, companies and himself are above the law—while he’s in office. Trump’s goal, if accomplished, would allow the statute of limitations to run on any possible crimes.
The U.S. Constitution is silent on the issue. However, the framers of the Constitution did not intend for a monarchy style of government, according to Judge Marrero. Supreme Court case law affords no authority for Trump’s assertion. While Department of Justice policy may presumably forbid a sitting president from being indicted, that does not include an investigation. And it is repugnant for Trump to infer that he is above all aspects of the law, state and federal crimes, including criminal investigations. In a 75- page opinion, the federal court rebuked his arguments.
The 2nd Circuit Court of Appeals will hear arguments on the case later this month. For now, the 2nd Circuit stayed the releasing of records. Even if the stay is eventually lifted, the records remain secret through the Grand Jury process. Most likely, the case may head to the Supreme Court. The tests of politics over law will occur if the Supreme Court takes it under consideration. Until then, Trump lost this round and democracy won game one.
Washington, D.C. based Debbie Hines is a trial lawyer and former Baltimore prosecutor.