Donald Trump and Senate Republicans steered the U.S. Supreme Court hard right by appointing Bret Kavanaugh. Now a New York tax case could be the first test of whether that gambit pays office.
The legal fight began when Trump’s accounting firm was hit by a subpoena from the Manhattan District Attorney.
New York City’s top prosecutor is seeking eight years of Trump’s tax returns and business records as part of an investigation into hush payments to porn actress Stormy Daniels.
Trump’s lawyers went to court, but Manhattan Federal District Court Judge Victor Marrero called his arguments “repugnant to the nation’s governmental structure and constitutional values.”
The ruling was widely viewed as the first step in an effort to get the case before the Supreme Court. It moved one step closer today (Nov. 4).
A three-judge appeals panel also rejected Trump’s contention that the president is immune from all criminal investigations until he leaves office.
The judges, however, made a distinction between Trump and the subject of the subpoena. The judges noted that the president’s accounting firm, not Trump, was ordered to turn over the documents, so the issue of presidential immunity was moot.
“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.”
Trump’s immunity claim has never been tested in court, which opens the door for the U.S. Supreme Court to take up the matter, which appears to be the aim of Trump’s lawyers.
They’re hoping for a favorable ruling from the high court, heavily weighted to the right by Kavanaugh’s appointment.
During Kavanugh’s confirmation hearing, Democratic Senators raised red flags about the jurist’s “radical” views on presidential power.
In legal writings, Kavanaugh said he could see a legal argument supporting the president’s right to refuse to turn over evidence and refuse to answer questions in a criminal investigation.
Sen. Richard Blumenthal presaged the issue before the Supreme Court during the hearings. He warned the question would come down to upholding the “checks and balances” placed on the president, or allowing an “imperial presidency” unchecked by the rule of law.
Trump nominated Kavanaugh to fill the seat of retiring Associate Justice Anthony Kennedy, who was considered a moderate.
The appointment gave conservatives a 5-4 majority. Trump earlier appointed Neil Gorsuch to fill a seat vacated by the death of Justice Antonin Scalia.
Scalia died during President Obama’s term in office, but Senate President Mitch McConnell block Obama’s appointment for almost a year.
Trump’s legal problems emerged when he was named an “unindicted co-conspirator” in the federal Southern District of New York. The investigation involves potentially criminal campaign finance violations by Trump attorney Michael Cohen.
Cohen handled the payoffs to Daniels and Playboy model Karen McDougal, who said she had a 10-month sexual tryst with Trump around the time wife Melania Trump was pregnant.
The payments were designed to keep the women quiet before the 2016 presidential election. Cohen testified that Trump directed him to pay off the women.
The Constitution does not explicitly say whether presidents can be charged with a crime while in office, and the Supreme Court has not ruled on the issue, according to The New York Times.
But under a U.S. Justice Department policy, federal prosecutors are barred from charging a sitting president with a crime to prevent prosecutions from hindering the president’s ability to carry out his duties.
Trump, however, is asserting a much broader claim to immunity.
Oddly, the president’s bombastic claim that he could shoot someone in broad daylight on Fifth Avenue in New York City without losing political support factored into legal arguments.
“Local authorities couldn’t investigate?” asked Judge Denny Chin during the appeals court arguments. “Nothing could be done? That’s your position?”
“That is correct. That is correct,” Trump lawyer William S. Consovoy replied.
But prosecutions are one thing, investigations are another. Presidents before Trump have been investigated at both the federal and state level.
Although the investigation is outside the U.S. Justice Department’s jurisdiction, Attorney General William Barr has chosen to intervene in the case on behalf of the president.
While Barr stopped short of endorsing Trump’s view, he argued in an appellate brief that the bar to obtain documents should be set very high.
The president’s personal records should only be made available if they were central to the investigation, not available elsewhere and were needed immediately. Otherwise, the case could wait until after Trump leaves office.
In other words, subpoenas should only be granted as a “last resort.”
Manhattan district attorney, Cyrus R. Vance Jr. is seeking the tax records from Trump’s accounting firm, Mazars USA, and business records from the Trump Organization going back 2011.
Trump and his company reimbursed Cohen the for $150,000 he paid to Daniels to buy her silence, raising questions whether state laws were broken.