On Monday, the Second Circuit Court of Appeals issued their decision in the Trump Tax Return Case (Trump v. Vance), which required President Trump to comply with a New York State grand jury subpoena.
Cy Vance Jr., the Manhattan District Attorney, served several grand jury subpoenas associated with his larger investigation into the Trump Organization. At first, the Trump Organization cooperated, but then began “resisting” the subpoenas. Notably, the private accounting firm, Mazars, was ordered to hand over Trump’s personal and business financial records, including his tax returns.
President Trump filed suit in the District Court for the Southern District of New York seeking to block the subpoenas by declaratory judgment and permanent injunction, citing executive privilege and immunity. The District Court ruled against Trump on jurisdictional grounds, and Monday the Second Circuit affirmed but for different reasons. Not only is the court’s cautious ruling an attempt at avoiding Supreme Court interference, but also judicial tiptoeing around the overarching, tough questions.
Team Trump essentially presented two arguments:
(1) The president cannot be indicted while in office, so he is temporarily immune from all stages of the state criminal process until he is out of office (i.e., temporary absolute presidential immunity); and
(2) President Trump’s tax returns are confidential under the executive privilege doctrine.
The court — citing historical support for the proposition that a sitting president can be investigated, and by distinguishing prior executive privilege cases — dismisses both arguments. In this case, the subpoena targets the president’s personal financial information, which the court finds separate from his official, privileged conduct as president.
Ultimately though, this case is a difficult one because of the precedent it sets. According to this ruling, individual states can criminally investigate the sitting President of the United States via grand jury subpoenas. Seems fair. Probably better than the alternative where — as Trump’s lawyers infamously argued — the president could literally shoot someone on 5th Avenue and theoretically avoid all investigation or punishment while in office.
But now imagine, with every new president, partisan states open wide-ranging and politically damaging criminal investigations into presidents with unfavorable party affiliations. Democratic presidents constantly investigated by GOP States, and vice versa. Using the state’s criminal investigative powers for political purposes seems like such a terrible, inevitable outcome. However, on the other hand, we cannot allow unchecked presidential criminal conduct.
Additionally, the court expressly dodged a larger question: whether states can criminally indict and prosecute the sitting president. Balancing state sovereignty with the Supremacy Clause, the court would likely favor presidential immunity from state prosecutions, but then what? So states can conduct public criminal investigations into the sitting president, which then lead to nothing? Until the president is out of office, nothing can be done to address criminal conduct? Seems like a perfect political tool.
If the Supreme Court takes on this case, then they’ll likely try and avoid these difficult questions too, though the Robert’s Court has additional considerations. If the Court overrules the Second Circuit, the Court will undoubtedly face accusations of acting partisan. The reputation and legitimacy of the Court is of vital importance to Chief Justice John Roberts, so he likely wants to avoid any problems this case could bring.
But the Justices, as some believe, might feel compelled to weigh in on an important issue and not allow the Court to avoid its constitutional responsibilities. It’s questionable whether there are enough votes to grant cert., so it’s doubtful, in my opinion, that the Second Circuit’s narrow decision will ultimately be reversed.
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This case deals with difficult issues of state powers, presidential immunities, and criminal law, but we shouldn’t cast aside concerns of future state investigational misuse. It’s important to discourage political actors from engaging in politically driven criminal investigations. As democrats investigate President Trump for potentially abusing his presidential powers for personal, political purposes, we must remain principled here.
If democratic politicians advocate criminally investigating opponents for political purposes, we must object. If republican politicians advocate criminally investigating opponents for political purposes, we must object. We hold the power here.
With our votes and voices we must decry any attempt to use the powers of government purely for politically harmful purposes, even when we dislike the investigation’s target.
We have the ability to create a political environment where political prosecutors open phony investigations only to disparage wrong-party political actors. Whether we can control our impulses remains to be seen.