Tuesday, November 5, 2019

Second Circuit: Prez has to produce his tax returns

The Second Circuit has ruled that the President produce his tax returns to the Manhattan District Attorney, who is investigating whether various individuals connected to the President committed criminal acts. In ruling this way, the Court of Appeals holds that the President cannot assert any immunity from disclosing these tax records.

The case is Trump v. Vance, issued on November 4. While the DA's office served the subpoena on Trump's accountants, Trump brings the lawsuit. This stems from Trump's extramarital sexual relationships with a Playboy bunny and a pornographic movie actress, and what the Court of Appeals calls "hush money" payments to these women in order to keep these events out of the public eye in advance of the 2016 presidential election.

The Court (Katzmann, Chin and Droney) starts by addressing a dry procedural issue, Younger abstention, a doctrine created by the Supreme Court in the 1970's as a means to prevent the federal courts from interfering with ongoing state court proceedings. Under this rule, federal courts have to abstain from federal lawsuits where a related, ongoing proceeding is unfolding in state court. But the Second Circuit holds for the first time that Younger abstention does not apply when the federal government is trying to invoke the jurisdiction of the federal courts. The Court holds that when the President invokes federal jurisdiction "to vindicate the superior federal interests embodied" in the Constitution. Bottom line is that while there is a grand jury proceeding in state court that is dealing with these possible criminal acts, the federal court has authority to take up the issues raised in this case. So Trump wins that battle.

But he loses the war. Trump asserts presidential immunity in trying to keep his tax returns private. The President invokes "what he described at oral argument as 'temporary absolute presidential immunity,''' which would mean that "he is absolutely immune from all states of state criminal process while in office, including pre-indictment investigation," and that the tax return subpoena "cannot be enforced in furtherance of any investigation into his activities." No one has ever heard of "temporary absolute presidential immunity," and the Court of Appeals tastefully decides a narrow issue, concluding only that "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."

There is very little case law that guides this issue, but the Second Circuit relies on United States v. Nixon, decided in 1974, the year President Nixon resigned the presidency to avoid impeachment after Oval Office tape recordings captured Milhous plotting to interfere with a federal investigation into the Watergate break-in, until now the most exciting presidential scandal we ever had. As the Second Circuit sees it, if the Supreme Court in the Nixon case said that Nixon had to turn over the tapes relating to his own conversation with aides and advisors for use in a criminal trial against high-level presidential advisors, then there is no persuasive reason for Trump to object to a grand jury subpoena served on a third-party (the accountants) relating to an investigation that has nothing to do with Trump's presidential duties but instead involves a private rendezvous that predated his presidency.

This is the case, by the way, where Trump's lawyer told the Court of Appeals that, so long as he is President, Trump could not be investigated even if he shot someone on Fifth Avenue. The Court of Appeals does not make reference to that argument in its ruling, but folks, if you are in the Court of Appeals, don't make arguments like this. Hypothetical questions may seem pointless when you're at the podium, but they do give the Court a flavor about the consequences of your legal position. Arguments like this suggest that your client is above the law. What this case confirms is that no one is above the law, not even the President.  

No comments: