Trump can’t block New York district attorney’s tax subpoena

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President Donald Trump suffered another setback in his effort to guard his financial information as a federal appeals court refused to block the Manhattan district attorney’s subpoena to his accountants for tax records.

The 3-0 ruling by the federal appeals court in Manhattan moves the case closer to a possible showdown in the U.S. Supreme Court. If Trump loses there, he may run out of legal ways to halt District Attorney Cyrus Vance Jr. from obtaining the records.

The court soundly rejected Trump’s claim that his broad presidential immunity prevents state prosecutors from investigating his affairs or obtaining records from his accountant. A lawyer for Trump argued before the panel last month that Trump could shoot someone on Fifth Avenue, echoing his famous 2016 boast, and that criminal charges or even a subpoena for his records would be legally out of bounds.

“The decision of the Second Circuit will be taken to the Supreme Court,” Trump’s lawyer, Jay Sekulow, said in a statement. “The issue raised in this case goes to the heart of our republic. The constitutional issues are significant.”

Though the ruling was narrow — the court made clear it wasn’t weighing in on whether Trump could be prosecuted or himself required to turn over records — it is still a significant blow to the president. Since declaring his candidacy more than four years ago, he has resisted all demands that he disclose his financial data. Trump has also sued to block congressional subpoenas.

“Presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non‐privileged material, even when the subject matter under investigation pertains to the president,” Chief Circuit Judge Robert Katzmann said in a 34-page opinion.

The appeals court moved with unusual haste, issuing its decision just 12 days after arguments. A lower-court judge in New York ruled last month that Trump can’t stop his accountants, Mazars USA LLP, from providing eight years of taxes and other financial documents to Vance, whose office is investigating whether the Trump Organization falsified business records to disguise hush payments to two women who claimed they had sex with him.

The court on Monday agreed with U.S. District Judge Victor Marrero that Trump isn’t entitled to an injunction blocking Mazars from complying with the subpoena. Marrero said Trump was seeking “virtually limitless” immunity from criminal investigation. The appeals panel praised Marrero’s “well‐articulated opinion.”

The court said it would “exact a heavy toll on our criminal justice system to prohibit a state from even investigating potential crimes committed” by the president — for possible prosecution after he leaves office — or by others without immunity “simply because the proof of those alleged crimes involves the president.”

Vance’s office declined to comment on the decision.

‘Narrow opinion’

Carl Tobias, a University of Richmond law school professor who teaches constitutional law, called Monday’s decision “a very workmanlike, careful, cautious, narrow opinion.” The decision not to make a broader statement about presidential immunity may help insulate it from political criticism, he said.

The judges reversed the part of Marrero’s ruling that the federal court shouldn’t hear the case and that it’s a matter for New York state courts. They sent the case back to Marrero to determine whether any further consideration is needed.

Two judges have already ruled against Trump in other federal cases involving his financial records, and the president has appealed those decisions. In one case, a court in Washington ruled 2-1 against his attempt to block a congressional subpoena for his records.

The New York-based appeals court is considering Trump’s appeal of a May ruling by a different judge in Manhattan to reject the president’s request to block his bankers at Deutsche Bank AG and Capital One Financial Corp. from turning over his financial records to Congress.

In Monday’s decision, the court said the “most relevant precedent” was the Supreme Court’s 1974 ruling in U.S. v. Nixon, upholding a subpoena to President Richard Nixon for tape recordings and documents relating to his conversations with aides and advisors.

President Trump “has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the president’s performance of his official functions,” the court said.

The case is Trump v. Vance, 19-03204, Second U.S. Circuit Court of Appeals (Manhattan).

Bob Van Voris
Bloomberg News
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