The Department of Justice had asked the court to pause the case while it considers whether to join Trump in requesting a preliminary injunction. The case raises significant constitutional issues that the department is reviewing, the motion says.
Trump is fighting a grand jury subpoena asking Mazars USA, his longtime accounting firm, to turn over federal and state tax returns from the president and his businesses. The subpoenas are in connection with Manhattan District Attorney Cyrus Vance Jr.’s investigation into hush money payments to two women who say they had affairs with Trump.
In court Wednesday, Trump’s attorney, William Consovoy, argued that Vance, a Democrat, was conducting an unlawful criminal investigation of a sitting president.
Justice Department policy says a sitting president cannot be indicted. Trump’s lawsuit goes further, saying he cannot be subject to any criminal proceedings until out of office.
Allowing such inquiries would give local authorities the power to hamstring the president and should be prohibited, Consovoy said. If Vance’s office is allowed to proceed, other states may follow his lead in attempting to harass the president, he said.
Trump “is not subject to criminal process while he’s in office," Consovoy said.
Legal experts say that would be a leap from existing precedent. In 1974, for instance, the Supreme Court ruled unanimously that President Richard Nixon had to comply with a subpoena from investigators and turn over tapes of his conversations in the Oval Office.
Marrero questioned whether Trump’s argument meant that the president’s businesses could not be investigated for criminal activity because the investigation could potentially implicate him in wrongdoing. “How would the district attorney know if a business is engaged in criminality if it can’t investigate? What happens if the statute of limitations is about to expire?" he said. "Will the business get off scot-free, riding on the tails of the president?”
Trump is seeking sweeping immunity for himself, those close to him and his business, the Manhattan District Attorney’s office argued. “They have no authority for the breathtaking grant of immunity they seek,” assistant district attorney Solomon Shinerock told the court.
Allowing even a short stay “means they win and we lose," said Carey Dunne, the general counsel for the Manhattan district attorney. The grand jury’s work would be “irreparably impeded by additional delay."
Some potential charges may become moot if their statutes of limitations runs out and the case could become difficult to investigate, said Shinerock, who also argued that the matter should be litigated in state court, not federal.
The subpoenas cover “a much larger bundle of documents than just tax returns” and involve not just the president but also his businesses and “many” third parties, Shinerock said. The documents also date back to 2011, when Trump was not in office, he said.
The district attorney’s subpoena focuses on payments to Stormy Daniels, an adult-film actress, who was paid $130,000 by then-Trump attorney Michael Cohen for her silence before the 2016 election; and Karen McDougal, a former Playboy model who was paid $150,000 by American Media Inc., the publisher of the National Enquirer. Trump has denied having affairs with either woman.
On Aug. 29, a grand jury subpoenaed Mazars, the president’s accounting firm, for tax records dating back to 2011, Vance’s office said in its motion seeking to have Trump’s lawsuit thrown out. The subpoenas are part of an effort to understand how the Trump Organization accounted for the payments to Daniels and McDougal and who was involved, the district attorney’s office said.
The case is the latest in a string of lawsuits by Trump seeking to block investigations into his finances as well as those of his family members and businesses. Trump has also appealed a federal court order that cleared the way for Deutsche Bank, the president’s biggest creditor, and Capital One to hand over years of financial records from Trump, his three eldest children and the president’s company to two House committees. The U.S. Court of Appeals for the 2nd Circuit has heard arguments in that case but not ruled.
Last week, a federal judge sided with the Trump campaign and blocked a new California law requiring presidential candidates to release five years of tax returns to run in the state’s March 2020 primaries.