President Donald Trump on Thursday took the legal battle over access to his tax returns to the Supreme Court in a last-ditch effort to shield his personal financial records.
The case represents a historic moment, which will test the nation’s highest court and the separation of powers outlined in the Constitution. It also marks a new phase in the investigations which have cast a cloud over Trump’s presidency and culminated in an impeachment inquiry.
The case involves Manhattan District Attorney Cyrus Vance Jr.’s effort to enforce a grand jury subpoena issued to the president’s accounting firm, Mazars USA, for eight years of Trump’s tax records.
The case marks the first time the president’s private lawyers have gone to the nation’s highest court to make the broad claim that a president is immune from criminal proceedings while in office. A district judge and a panel of the U.S. Court of Appeals for the Second Circuit ruled against him, concluding that the subpoena was proper and could be enforced.
“For the first time in our nation’s history, a state or local prosecutor has launched a criminal investigation of the president of the United States and subjected him to coercive criminal process,” wrote Jay Sekulow, one of the president’s lawyers. “Politically-motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”
Vance’s office has agreed to hold off on enforcing the subpoena if Trump’s lawyers quickly asked the Supreme Court to hear the case this term.
Justices on the Supreme Court are not required to hear a case or to schedule it at a party’s request, but an appeal from a sitting president is certain to attract their attention. Additionally, the possibility that the high court will get involved increased Wednesday when a separate appeals court in a separate case ruled that Congress has a right to obtain the same financial documents. Trump’s legal team is expected to ask the Supreme Court on Friday for a stay in the case, setting up a momentous separation of powers dispute between the two branches of government.
If the Supreme Court agrees to review the case, it will be argued before a panel dominated by conservatives that includes two Trump nominees: Justices Neil Gorsuch and Brett Kavanaugh. In addition, in interviews before the 2016 election, Justice Ruth Bader Ginsburg criticized the president’s decision not to release his tax information, as other presidential nominees had done.
“How has he gotten away with not turning over his tax returns?” Ginsburg said in an interview with CNN. “The press seems to be very gentle with him on that.” (After her remarks drew criticism, Ginsburg said she should not have commented on the candidate.)
A review by the Supreme Court would finally settle an issue which has dogged the president since before he came into the Oval Office: the release of his tax returns. Such a ruling would likely come out next spring, in the heat of the presidential election cycle.
The court could also deny to take up the case, leaving in place a lower court decision that went against the president. Such a decision would clear the way for Vance to enforce the subpoena, though the records would be subject to rules governing grand jury secrecy.
The case arises out of a state criminal probe led by Vance, who is investigating whether Trump or his company violated any New York state laws when they reimbursed the president’s former lawyer and “fixer,” Michael Cohen, for payments Cohen made to two women who alleged extramarital affairs with Trump in the lead up to the 2016 presidential election.
Trump has denied having affairs with the women — adult film star Stormy Daniels and former Playboy model Karen McDougal — and any wrongdoing.
Cohen is currently serving a three-year prison sentence after pleading guilty last year to multiple crimes, including breaking federal campaign finance laws related to the hush money payments.
Trump’s lawyer, William Consovoy, has argued that a sitting president is immune from criminal prosecution and investigation in office. At an appeals court hearing, Consovoy said in his response to a judge’s question that Trump, as long as he is in the White House, could not be investigated even if he were to shoot someone in the middle on the streets of New York City. (As a candidate in 2016, Trump infamously claimed that his supporters were so loyal that he could stand there “and shoot somebody” and not “lose any voters.”)
The Justice Department filed a brief in support of Trump, but stopped short of endorsing his claim of absolute immunity from all criminal investigations. Instead, government lawyers said that there are instances when a local prosecutor might legally seek a president’s documents but noted this was not one of them.
Presidential materials “should not be treated as just another source of information,” the department said. “A subpoena directed at a president’s records should be permitted only as a last resort.”
Vance has rejected Trump’s sweeping immunity claims, arguing the president is “seeking to invent and enforce a new presidential ‘tax return privilege,’ on the theory that disclosing information in a tax return will necessarily reveal information that will somehow impede the functioning of a president.”
“No such privilege exists in the law,” Vance declared. “U.S. District Judge Victor Marrero in New York called Trump’s immunity claim “repugnant to the nation’s governmental structure and constitutional values.”
And earlier this month, a three-judge panel of the Second Circuit Court of Appeals issued a more subdued ruling against Trump, dodging some of his sweeping immunity claims.
“We have no occasion to decide today the precise contours and limitations of president immunity from prosecution,” Judge Robert Katzmann wrote for the majority. “We conclude only that presidential immunity does not bar the enforcement of a state grand jury subpoena.”
In the opinion, Katzmann pointed to a 1974 case, United States v. Nixon, where the Supreme Court upheld a subpoena issued to President Richard Nixon to produce tape recordings key to the Watergate investigation.
“The president 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,” Katzmann wrote.
He added in a footnote ,”The past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public. While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the president in performing the duties of his office.”
In the filing at the Supreme Court, the president’s lawyers argued that upholding the subpoena “would empower thousands of state and local prosecutors to embroil the president in criminal proceedings is unimaginable,” they wrote. “State criminal process interferes with the president’s ability to execute his duties.”