The president’s lawyer was asking the U.S. Court of Appeals for the 2nd Circuit to block a subpoena for Trump’s private financial records from New York prosecutors investigating hush-money payments made before the 2016 election. The judges seemed skeptical of the president’s sweeping claims of immunity not just from prosecution, but also from investigation.
Judge Denny Chin pressed Consovoy about the hypothetical shooting in the middle of Manhattan.
“Local authorities couldn’t investigate? They couldn’t do anything about it?” he asked, adding, “Nothing could be done? That is your position?”
“That is correct,” Consovoy answered emphasizing that the immunity applied only while Trump is in office.
The exchange came during an hour-long argument centered on Trump’s effort to fend off a subpoena to his longtime accounting firm from Manhattan District Attorney Cyrus Vance Jr. The case, expected to reach the Supreme Court, is a test of the sweep of presidential privilege and one of several battles over Trump’s business records that began before the House opened its impeachment inquiry.
Judge Robert A. Katzmann asked Trump’s lawyer Wednesday what harm would come from turning over the president’s tax records to a grand jury when state and federal officials already retain such documents.
Consovoy said there was no guarantee the records would remain private once prosecutors and a grand jury were granted access.
Carey Dunne, general counsel from the Manhattan District Attorney’s office, told the court “there is no such thing as presidential immunity for tax returns” and “they’re making this up.”
“[President Trump] may view them as embarrassing or sensitive but tax returns do in fact get subpoenaed all the time in financial investigations,” Dunne said.
Prosecutors routinely subpoena banks and other financial firms for individual records as part of their investigations, but in this case the subject of the records is a sitting president.
Earlier this month, U.S. District Judge Victor Marrero rejected Trump’s broad claims that a sitting president is immune not only from prosecution but also from investigation. The judge said such a shield for the president would be “virtually limitless” and characterized Trump’s claim of immunity as “repugnant to the nation’s fundamental structure and constitutional values.”
The appeal Wednesday is being heard by three judges — Katzmann, Chin and Christopher F. Droney — all of whom were nominated by Democratic presidents.
The subpoena for records from Trump’s longtime accounting firm remains on hold while the appeals court reviews the case. Vance’s office agreed to pause enforcement of the subpoena if the president loses his appeal, so long as the president abides by an expedited timeline to ask the Supreme Court to intervene.
During Wednesday’s arguments, judges questioned why Trump should be allowed to conceal his tax returns at his accountant’s office when the Supreme Court had ordered the White House to hand over President Nixon’s audiotapes during the Watergate investigation.
Consovoy said the cases differed in important ways and that if this case were allowed to move forward it could unleash myriad investigations of future presidents from state and local prosecutors.
“The idea that this would not lead to a greater investigations of the president” was not believable, Consovoy said.
Katzmann later said he expected the Supreme Court to weigh in, as it is expected to in other cases targeting Trump’s businesses.
“This case seems bound for the Supreme Court,” Katzmann said.
“I think both parties view that as an inevitability,” Dunne replied.
In August, Vance subpoenaed Mazars USA as part of his examination into whether any state laws were broken in connection to the 2016 payments to two women who said they had affairs with Trump years earlier.
Trump has denied the affairs and any wrongdoing in connection to the payments. The president’s lawyers say it is unprecedented for a local prosecutor to seek the records of a sitting president. His legal team has called the subpoena to Mazars a “a bad faith effort to harass the President by obtaining and exposing his private financial information, not a legitimate attempt to enforce New York law.”
The lawsuit is one of three cases in which Trump has sued investigators and the companies they subpoenaed to try to block access to his financial records. In the two other cases, Trump faces investigations that predate impeachment proceedings from congressional committees seeking his tax returns and financial documents.
A federal appeals court in Washington this month ruled against the president and refused to block a House committee subpoena for Trump’s records from Mazars. In that case, the court upheld Congress’s oversight powers and broad authority to issue subpoenas for information.
In the New York case, the Justice Department has backed the president’s position that the subpoena from Vance’s office should be blocked. But the government lawyers did not fully embrace Trump’s assertion that he is immune from all investigation.
“A subpoena directed at the president’s records should be permitted only ‘as a last resort,’ ” the Justice Department said in its filing.
According to Justice Department legal opinions, sitting presidents cannot be charged by federal prosecutors. But that guidance does not apply to grand jury investigations.
Vance’s office is not bound by the federal guidelines and has discretion to bring charges in New York state courts.
The local investigation followed the conviction last year of Trump’s former attorney Michael Cohen. He pleaded guilty to federal campaign finance violations for helping arrange payments to Stormy Daniels and Karen McDougal to keep their allegations of affairs with Trump from becoming public before the election.
Cohen has said Trump directed the payments and reimbursed him.