WASHINGTON — President Donald Trump will face strong headwinds in asking the Supreme Court to stop prosecutors in New York from getting his tax returns.
Past Supreme Court rulings have upheld subpoenas directed at presidents, and this time the local prosecutors are seeking documents from the Trump Organization and Trump's accountants — not directly from the president himself.
For those reasons, among others, the Supreme Court might simply decline to hear the president's appeal, which would leave the appeals court ruling intact and require the tax returns to be turned over.
The Manhattan district attorney, Cyrus Vance, is investigating whether any state laws were broken in the payment of hush money to two women who claimed they had a sexual relationship with Trump, allegations he has denied. The prosecutors are also looking into the claim by Michael Cohen, the former Trump lawyer and confidante, that Trump sometimes misstated his financial situation in order to pay lower taxes.
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Trump's lawyers have fought back, arguing that because a sitting president cannot be indicted, he likewise cannot be subject to any steps in a criminal investigation. In rejecting that claim, a three-judge panel of the 2nd Circuit Court of Appeals in New York said Monday that presidential immunity "does not bar the enforcement of a state grand jury subpoena directing a third party to produce nonprivileged material, even when the subject matter under investigation pertains to the president."
No court has ever ruled that a sitting president cannot be charged with a crime, but that has been the consistent position of the Justice Department under both Republican and Democratic administrations. The logic behind that position can be summarized simply: The president can't run the country from jail.
The Supreme Court has never ruled that sitting presidents are beyond the reach of criminal investigations, though. In 1974, the court ruled that President Richard Nixon was required to comply with a subpoena directing him to turn over tape recordings of conversations in the White House. In 1975, President Gerald Ford complied with an order to give a deposition in the trial of a woman charged with trying to shoot him. In 1996, President Bill Clinton gave videotaped testimony in two criminal trials.
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And in 1807, Chief Justice John Marshall, presiding over the criminal trial of Aaron Burr, approved the issuance of a subpoena to President Thomas Jefferson.
The Justice Department's own position is consistent with these rulings. A 2000 memo from the DOJ's Office of Legal Counsel concluded that while sitting presidents cannot be prosecuted, they can still be investigated. Even if a president is immune from indictment, "a grand jury could continue to gather evidence throughout the period of immunity, even passing this task down to subsequently impaneled grand juries if necessary."
A further problem for Trump is that Vance is not seeking any material involving official presidential duties, even though some of it overlaps with the time he's been in office. For that reason, the president is not making any claim that the material sought by the grand jury is protected by executive privilege.
The president's lawyers' best hope for getting the Supreme Court to take the case may be to argue two points. First, they will likely say that the 1974 ruling in the Nixon case doesn't apply because that was a subpoena issued for material to be used in a criminal trial of former White House aides. A grand jury subpoena, they might say, is a lower level of need.
And second, they may say that Vance's request is politically driven. His prosecutors admit that they lifted the wording of the subpoenas directly from subpoenas issued by two House committees controlled by Democrats. Trump's refusal to make public his tax returns has been a consistent gripe of critics on the left.
At least four justices must vote to hear a case in order for the Supreme Court to grant review. And those four would be reluctant to plunge ahead unless they were reasonably confident they'd get a fifth vote when the case is decided. From the perspective of Trump, and presidential authority in general, it would be better to leave the Second Circuit ruling intact than to have the Supreme Court definitively rule that presidents must comply with such subpoenas.
The lawyers for both Trump and Vance have agreed to submit their court filings promptly. There's no deadline for the justices to act, but both sides are hoping the court will say by mid-January whether it will take the case.
The New York case is one of several ongoing legal battles over Trump's tax returns. Last month, the president's lawyers lost another court battle over his finances. A panel of judges from the federal appeals court in Washington said Trump's accounting firm must turn over financial records requested by the House Committee on Oversight and Reform.
The committee is seeking documents relating to Trump's accounts going back to January 2009. Trump's lawyers sued to block the subpoena, arguing that Congress had no legitimate legislative purpose for getting the materials.
That case is now pending before the full D.C. appeals court.