During oral arguments last month, [Trump private attorney William S.] 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 of “temporary presidential immunity” 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.”
In case it isn’t clear, Trump’s lawyers argued that if he walked out on the street and shot someone, not only couldn’t he be indicted on a charge of the murder, but the police also would not even be allowed to investigate him.
First the district court and now the appeals court have found that argument to be somewhere between laughable and horrifying, which means that Trump has only one shot left to protect his tax returns from falling into the hands of prosecutors and then possibly the public: the Supreme Court.
There’s really no telling what the court will do. While the conservative justices have long adhered to the legal principle known as “Republican presidents get to do whatever they want,” Trump’s argument for keeping his tax returns hidden — in this case and in others, in which he is keeping them from Congress — are both farcical and extremely specific to him, meaning that they’re unlikely to impact future presidents.
If you were Chief Justice John G. Roberts Jr., or even one of the other conservative justices, you might decide that this would be a good case to hand Trump a loss, thereby demonstrating that the court can be nonpartisan to bolster its legitimacy (which it will need when it starts nullifying half the laws the next Democratic president signs).
Those other cases concern Congress’s legal right to obtain anyone’s tax returns, but this one has a much clearer allegation of wrongdoing. The Manhattan DA is investigating Trump’s role in potential illegal activity around the payment of hush money to Trump’s (supposed) mistresses in 2016.
As you may remember, Trump’s former personal lawyer Michael Cohen, who administered those hush money payments, is now in jail for his role in that scheme (among other things). By making payments to keep those women quiet while the campaign was going on, he made what were in effect undisclosed in-kind contributions to the Trump campaign, contributions that exceeded legal limits. Trump then reimbursed him, which means he made undisclosed contributions to his own campaign. (A candidate can contribute as much as he wants to his own campaign, but the contributions must be reported.)
But that’s not the only crime Trump may have committed. To disguise their plan, Trump and Cohen set up a system in which Trump and his company made a series of monthly payments to Cohen totaling $420,000, disguised as legal fees. That means Trump almost certainly deducted them on his taxes as a business expense, which would be illegal.
I will note that one professor of tax law has a semi-serious theory that if Trump’s entire run for president was merely a plan to further his business interests, then he might be able to claim that since he paid off the women to advance his candidacy, it would be a legitimate business expense. It’s so absurd that at this point I wouldn’t be surprised to hear Trump’s lawyers toss that turd right on to the table in court.
I’m not sure if before taking office Trump was aware of the opinion from the Justice Department’s Office of Legal Counsel concerning presidential immunity from prosecution. But we have to remind ourselves of just how extraordinary it is that the president is claiming not just that he can’t be prosecuted but also that he can’t even be investigated. Though it would be amusing to think that Trump ran for president so he could have a four-year window to commit crimes, there’s every reason to believe that he committed plenty over the course of his life and never bothered worrying about whether he’d be held accountable.
The presidency brought with it a certain limited immunity, but it also brought more scrutiny than Trump probably ever imagined. To achieve the goal of keeping his tax returns hidden — something that is obviously of paramount importance to him — he’s going to have to win every one of these cases. His odds don’t look good.