A Judge Rules That Trump Isn’t Above the Law—and Neither Are His Tax Returns

By John Cassidy

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.