In the past two and a half years, Donald Trump’s
enablers have made a number of outlandish claims, but perhaps none of
them was quite as preposterous as the one that his lawyers made last
month, in an effort to prevent New York state prosecutors from obtaining
eight years of his tax returns.
In a filing
to a federal court in New York, the Trump legal team, including Marc
Mukasey, a son of Michael Mukasey, who served as Attorney General during
the George W. Bush Administration, argued that, under the U.S.
Constitution, a sitting President can’t be subjected to any criminal
investigation except as part of an impeachment inquiry.
The team’s argument was not merely that Trump can’t be hauled into
court and prosecuted—a claim that now has the imprimatur of the U.S.
Department of Justice—but that a President can’t be subjected to any
type of “criminal process,” because it would “distract him from his
constitutional duties.”
A number of independent legal experts
quickly pointed out that Trump’s lawyers were trying to rewrite the
Constitution to create a whole new layer of executive protection and
privilege. “I think there is some force to the argument that states
can’t be allowed to hobble presidents with local prosecutions, but there
is certainly no authority for the claim that they cannot at least
investigate while a president is in office,” Frank O. Bowman, a
University of Missouri law professor who has written a book about
impeachment, told the Times.
On Monday morning, the federal judge Victor Marrero, who was
appointed to the bench by Bill Clinton, came down firmly on the side of
Bowman and against Trump. “The president asserts an extraordinary claim
in the dispute now before this court,” Marrero wrote.
“This Court cannot endorse such a categorical and limitless assertion
of presidential immunity from judicial process as being countenanced by
the nation’s constitutional plan.”
In dismissing a request from
Trump’s lawyers for a preliminary injunction to prevent Cyrus Vance, the
District Attorney for Manhattan, from getting hold of the tax returns,
Marrero rejected their legal arguments in a long and, at times,
impassioned ruling. “Bared to its core, the proposition the President
advances reduces to the very notion that the Founders rejected at the
inception of the Republic, and that the Supreme Court has since
unequivocally repudiated: that a constitutional domain exists in this
country in which not only the President, but, derivatively, relatives
and persons and business entities associated with him in potentially
unlawful private activities, are in fact above the law,” Marrero stated.
“Because this Court finds aspects of such a doctrine repugnant to the
nation’s governmental structure and constitutional values, and for the
reasons further stated below, it ABSTAINS from adjudicating this dispute
and DISMISSES the President’s suit.”
The dispute arose after
Vance issued a subpoena to Trump’s accounting firm, Mazars USA L.L.P.,
demanding that the firm hand over the President’s tax returns, which
Trump has refused to make public. Vance’s office is investigating
whether the 2016 hush-money payoff made to the adult-film performer Stormy Daniels, through Trump’s personal attorney Michael Cohen,
violated state law. (Trump has denied both having an affair with
Daniels and that the payment violated any campaign-finance laws.) Late
last year, Cohen pleaded guilty in federal court to eight criminal counts,
including violating campaign-finance laws by giving Daniels a hundred
and thirty thousand dollars to buy her silence, and was sentenced to
three years in prison. Earlier this year, it was widely reported that
the Office of the U.S. Attorney for the Southern District of New York
wouldn’t be bringing any more charges in the Daniels case, despite the
fact that it had identified in court documents an “Individual 1,” widely
agreed to be Trump, who had directed Cohen to make the hush-money
payments.
Trump and his lawyers have accused Vance, who is a
Democrat, of launching the state investigation of the Daniels case for
political reasons. “Throughout President Trump’s time in office,
government institutions, both federal and state, controlled by or
aligned with the Democratic Party have attempted to use their power to
obtain and expose his confidential financial information in order to
harass him, intimidate him, and prevent his reelection,” the Trump
team’s lawsuit said. “In recent months, the District Attorney of New
York County has joined this campaign of harassing the President by
obtaining and exposing his financial information.”
Shortly after Judge Marrero issued his ruling, Trump, in a tweet,
amplified this argument in his usual distinct and self-pitying manner.
“The Radical Left Democrats have failed on all fronts, so now they are
pushing local New York City and State Democrat prosecutors to go get
President Trump. A thing like this has never happened to any President
before. Not even close!”
Judge Marrero’s task was to rule on the law, not Vance’s motivation.
In his ruling, which stretched to seventy-five pages, he said that he
couldn’t “impute bad faith to the District Attorney on the basis of
statements made by various legislators and the New York Attorney
General”—Letitia James, who had campaigned last year, in part, on a
promise to investigate Trump. Marrero noted that the President’s lawyers
had not asserted that Vance and his team lacked any “reasonable
expectation” of obtaining a favorable outcome in their investigation of
the hush-money payments, which extends beyond Trump individually to the
Trump Organization.
The judge also noted that Trump’s legal team, in
claiming that the President couldn’t be investigated, had placed a lot
of emphasis on internal Department of Justice guidelines, which say that
a President can’t be prosecuted while in office. But “the DOJ Memos do
not constitute authoritative judicial interpretation of the Constitution
concerning those issues,” Marrero wrote. “In fact, as the DOJ Memos
themselves also concede, the precise presidential immunity questions
this litigation raises have never been squarely presented or fully
addressed by the Supreme Court.” Although Marrero obviously doesn’t
speak for the high court, he did consider the constitutional arguments
that Trump’s team had raised, and dismissed them, saying: “The Court
concludes that neither the Constitution nor the history surrounding the
founding support as broad an interpretation of presidential immunity as
the one now espoused by the President.”
Marrero seemed well aware that his wouldn’t be the final word in this
legal battle, and he was quickly proved right. Shortly after he issued
his ruling, the Second Circuit Court of Appeals granted Trump’s lawyers a
temporary stay, which meant his accounting firm didn’t have to hand
over his tax returns immediately. The Appeals Court said
that it would review the case on an expedited basis, and the Justice
Department said that it would join the proceedings and make arguments on
the President’s behalf.
It seems likely that the case will go all
the way to the Supreme Court, where there is a solid conservative
majority. But, for today, at least, a federal court has reasserted a
fundamental principle: no President is above the law.
