2019-11-14 22:54:501 Oct 2018 01:53 AM EST
By Laura Tucker, Staff writer; Image: The Supreme Court (Image source: Public domain)
As expected, Donald Trump’s legal team followed up on last week’s appeals court decision rejecting its lawsuit regarding his tax returns by asking the Supreme Court to hear the case. The high court is being asked to decide if Trump can keep his finances secret or whether his accounting firm should be forced to share his personal finances with the Manhattan district attorney.
This case will test the high court and calls the Constitution’s separation of powers into play. Manhattan District Attorney Cyrus Vance Jr. issued a grand jury subpoena to Mazars USA, Trump’s personal and business accounting firm, asking them to turn over eight years of the president’s tax records.
Trump tried to block the subpoena by making a claim that sitting U.S. presidents are immune from criminal investigations. But a district judge and panel of the U.S. Court of Appeals for the 2nd Circuit would not take up his lawsuit, noting it was a proper subpoena and that Mazars must comply.
Vance’s office agreed to hold off on enforcing the subpoena for a week if Trump’s attorneys would make the request to the Supreme Court within that time.
“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 Trump’s attorney Jay Sekulow. “Politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”
The Supreme Court isn’t required to take up Trump’s case, but the chances increased after another similar case dealing with the same tax returns, yet with Congress at the other end instead of Vance also failed to be upheld. Trump’s attorneys plan to bring that one to the Supreme Court on Friday.
This could set up a decision on presidential power, just like those that the Supreme Court handed down against former President Richard Nixon and former President Bill Clinton. These two cases were unanimous rulings that rejected their pleas, with the thought that Trump’s desires will fall the same way.
The high court could be stacked in favor of Trump. Two of his hand-picked nominees, Justices Neil Gorsuch and Brett Kavanaugh, will be hearing the case, but Justice Ruth Bader Ginsburg will be hearing it as well.
She has already made her opinion known on Trump’s taxes. In 2016 when he was still a candidate, after he had already said he would not be releasing his tax returns, Ginsburg asked, “How has he gotten away with not turning over his tax returns?” She noted that “the press seems to be very gentle with him on that.” She later admitted she shouldn’t have spoken up.
The justices will be deciding in the coming weeks whether or not to review Trump’s case. If the case is given the go-ahead to be heard, there will probably be time for a full hearing this term and for a ruling next year before the election
There are other separation-of-powers cases that could reach the Supreme Court. These include Congress wanting access to the redacted portions of former special counsel Robert Mueller’s final report and the emoluments lawsuits against Trump.
Vance intends to use the tax return records in the investigation into the alleged hush-money payments to two women who say they had affairs with Trump. Vance’s office is looking into whether Trump’s business records related to the payments were falsified. He has denied any wrongdoing.
William S. Consovoy, another Trump attorney, has made the argument that while he is still in office, Trump has “temporary presidential immunity” from investigations as well as prosecution. He even said in response to a judge’s question that as long as Trump is in office, he could not even be investigated if he shot someone on a Manhattan street.
While the Justice Department has filed a brief supporting Trump, it did not go along with his claim that he has absolute immunity from investigation. Government attorneys believe there are times when a local prosecutor could legally seek a president’s documents, but they do not believe this is one of those times.
Vance has rejected the claims that the president has absolute immunity, saying Trump is seeking to “invent and enforce a new presidential ‘tax return privilege’ ” that would prevent anyone from seeing his returns. “No such privilege exists in the law,” said Vance’s office.
In the 2nd Circuit’s ruling against Trump, Chief Judge Robert A. Katzmann made note of the Supreme Court’s 1974 decision forcing the White House to turn over Nixon’s audiotapes while he was under a criminal 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.”
He did add a footnote to the decision: “We note that 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.”
Trump’s attorneys, however, feel the release of his tax returns would embolden his political enemies. “That the constitution would empower thousands of state and local prosecutors to embroil the president in criminal proceedings is unimaginable,” it said in the filing with the Supreme Court. “State criminal process interferes with the president’s ability to execute his duties.”
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