Trump’s attorneys have argued that as president, Trump is immune not only from prosecution but from investigations. But in the decision, a three-judge panel of the 2nd U.S. Circuit Court of Appeals held that “any presidential immunity from a state criminal process does not bar the enforcement of such subpoena.”
Rebutting the argument that allowing the case to proceed would hinder the president in his duties, Chief Judge Robert A. Katzmann said that Trump was not at risk of imminent arrest or imprisonment — and wasn’t required to do anything.
“The subpoena at issue is directed not at the President, but to his accountants; compliance does not require the President to do anything at all,” Katzmann wrote. He was joined by judges Denny Chin and Christopher F. Droney; all three were nominated by Democratic presidents.
Of several ongoing legal and Congressional investigations seeking Trump’s tax returns, the case involving subpoenas from Manhattan District Attorney Cyrus R. Vance Jr. (D) to Trump’s accounting firm, Mazars, is on track to be the first to reach the Supreme Court.
Still the ruling does not mean that Trump’s tax records will be turned over immediately. Trump plans to appeal the case to the Supreme Court, according to Jay Sekulow, counsel to the president.
“The decision of the Second Circuit will be taken to the Supreme Court,” Sekulow said in a statement. “The issue raised in this case goes to the heart of our Republic. The constitutional issues are significant.”
Prosecutors agreed to delay enforcement of the subpoena to Trump’s longtime accounting firm if the president’s lawyers move quickly to ask the Supreme Court to intervene. Under the agreement between prosecutors and the president, Trump’s attorneys have 10 days in which to ask the Supreme Court to step in. Any appeal must ask the court to hear the case this term, meaning before the end if June.
Trump’s attorneys will likely ask the Supreme Court to leave the stay in place while the court decides whether to accept the case.
A spokesman for Vance’s office declined to comment.
One of Trump’s private attorneys, William S. Consovoy, had argued in the case that Trump enjoys “temporary presidential immunity” from investigations or prosecution while president, immunity that he argued would apply even if the president were to shoot someone.
In its 34-page opinion Monday, the court noted that the Supreme Court had previously ordered the White House to hand over President Richard Nixon’s audiotapes during the Watergate investigation.
President Trump, the court wrote, “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.”
Legal experts called the decision a “narrow” ruling that did not address the issue of presidential immunity head on.
“The judges avoided a lot of difficult and wide-ranging issues that they concluded were not necessary to decide,” said Deepak Gupta, an attorney for plaintiffs who are suing the president in a separate case, over the president’s business dealings.
The Mazars case is one of several legal clashes testing the limits of presidential power expected to reach the Supreme Court as soon as this term. Monday’s decision marked the second time in recent weeks that a federal appeals court has ruled against the president in his bid to stop investigators from scrutinizing his private financial records.
Past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public, something the judges said in their ruling “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.”
Even if Trump loses the case, that does not mean his tax information will be released to the public. Trump’s attorneys have argued the subpoenas ought to be blocked in part out of concerns that prosecutors would make public any of Trump’s financial information they acquire. But making such information public would violate state law and in court filings prosecutors have called those suggestions “outrageous.”
During oral arguments last month, Consovoy told the court that the subpoena is a politically motivated “fishing expedition.” A sitting president, he said, cannot be investigated — or prosecuted — while in office, even for shooting someone on the streets of Manhattan. His assertion came in response to a question about Trump’s own hypothetical from 2016, when he said as a candidate his political support was so strong that he could “stand in the middle of Fifth Avenue and shoot somebody” and not “lose any voters.”
The appeals court upheld an October ruling from U.S. District Judge Victor Marrero, who dismissed Trump’s lawsuit. Marrero rejected Trump’s claim of immunity as “repugnant to the nation’s fundamental structure and constitutional values.”
The case began in August after Vance’s office subpoenaed Mazars for eight years of the president’s tax records and other financial documents. The office is examining whether any state laws were broken in connection with the 2016 payments to silence two women who said they had affairs with Trump. Mazars issued a statement saying that the firm “will respect the legal process and fully comply with its legal obligations.”
Internal Justice Department legal opinions say sitting presidents cannot be charged by federal prosecutors. But those guidelines do not apply to Vance, an elected New York prosecutor who enforces state laws.
Deanna Paul and Carol D. Leonnig contributed.