MANHATTAN (CN) – Before his election as president, Donald Trump commented that he could “stand in the middle of Fifth Avenue and shoot somebody” without losing voters.
In highly anticipated Second Circuit arguments on Wednesday, the president’s attorney William Consovoy told a trio of judges that immunity would also temporarily shield Trump from prosecution for that act.
“This is not a permanent immunity,” Consovoy said, asked by U.S. Circuit Judge Denny Chin to respond to a police investigation in “the Fifth Avenue example.”
Chin pressed Trump’s attorney if he mean that, during the president’s tenure, “nothing could be done?”
“No,” Consovoy emphasized. “That is correct.”
The president’s attorney made that extraordinary assertion during appellate arguments to block subpoenas of the accounting firm Mazars USA, pursuant to a criminal investigation into hush-money payments that adult-film actress Stormy Daniels received from Trump’s lawyers.
Manhattan District Attorney Cyrus Vance seeks eight years of Trump’s personal and corporate tax returns in that probe.
"The appellant's counsel told us bluntly that he would never, ever agree to release [Trump's] tax returns," Assistant District Attorney Carey Dunne remarked today.
That would be in keeping with Trump’s pattern of fighting every jurisdiction attempting to scrutinize his finances.
"There is no privilege for tax returns," Dunne told Chief U.S. Circuit Judge Robert Katzmann, a Clinton appointee. “They're making this up, your honor. That's all I can say."
On top of squabbling with the Manhattan district attorney, Trump has sued the House Oversight Committee, House Intelligence Committee, and attorneys general from Maryland and Washington for seeking the same ledgers. Even after initially losing federal court battles, Trump has succeeded so far in putting their subpoenas on pause by appealing every ruling against him.
Katzmann observed Trump’s litigation with Vance is not likely to end in New York.
“This case seems bound for the Supreme Court,” Katzmann said.
“I think both parties see that as an inevitability,” Dunne agreed.
If so, such a showdown could be one of the most fateful reckonings on executive power since the one over the Nixon tapes and Clinton v. Jones. The Second Circuit panel brought up both on Wednesday, with Chin noting that there is still no support for the prediction that holding a president accountable in civil proceedings would hobble the executive branch with lawsuits.
Consovoy warned: “History will judge” that proposition.
U.S. Circuit Judge Christopher Droney, an Obama appointee who rounded out Wednesday’s panel, turned to the Nixon precedent to undermine the view that a sitting president could not be scrutinized.
If that were true, Droney said, the tapes would not have become public.
Though Manhattan District Attorney’s Office has never disclosed whether Trump is a target of its investigation, Droney speculated: “It certainly walks and talks that way.”
The Department of Justice memos, he noted, “all seem to say [immunity] applies up to the point of indictment, not before that.”
Earlier this month, another Clinton appointee, U.S. District Judge Victor Marrero, threw out Trump’s immunity-seeking lawsuit with a blistering opinion that said Trump’s maximalist position treated the president like a king.
“Shunning the concept of the inviolability of the person of the King of England and the bounds of the monarch’s protective screen covering the Crown’s actions from legal scrutiny, the Founders disclaimed any notion that the Constitution generally conferred similarly all-encompassing immunity upon the president,” Marrero wrote in a 75-page opinion.
Marrero called the “virtually limitless” idea of immunity “repugnant.”
“Bared to its core, the proposition the president advances reduces to the very notion that the Founders rejected at the inception of the republic, and that the Supreme Court has since unequivocally repudiated: that a constitutional domain exists in this country in which not only the president, but, derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law,” he wrote.
The Second Circuit reserved judgement on a decision, and the parties agreed to stay enforcement of the subpoenas by 10 days, until Trump’s attorneys filed a Supreme Court petition on the case. Judge Chin is an Obama appointee.
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