MANHATTAN (CN) — Drawing the battle lines for a Supreme Court showdown on the limits of executive power, the Second Circuit refused Monday to block New York’s subpoenas of President Donald Trump’s accounting firm, Mazars USA LLP.
“We begin with the long‐settled proposition that ‘the president is subject to judicial process in appropriate circumstances,’” Chief U.S. Circuit Judge Robert Katzmann wrote this morning for a three-judge panel, quoting a passage of the 1997 decision Clinton v. Jones.
Though today’s opinion affirms that Trump is not entitled to an injunction, it also revives the president’s effort to fight the case in federal court.
Representatives for Manhattan District Attorney Cyrus Vance declined to comment. Trump’s attorney William Consovoy did not return a request for comment.
Vance had subpoenaed Trump’s accounting firm Mazars USA earlier this year as part of a criminal investigation into hush-money payments made to adult-film actress Stormy Daniels, seeking eight years of Trump’s personal and corporate tax returns.
Just before the original deadline, Trump brought a federal lawsuit arguing that no prosecutor, federal or state, can subject a sitting president, his businesses or his allies to the criminal process while he is in office, even if that investigation involves conduct that preceded his term in office.
U.S. District Judge Victor Marrero, a Clinton appointee, called the concept “repugnant” in his October ruling.
The Second Circuit adopted a less scathing tone while still rejecting Trump’s expansive view of presidential immunity as an issue the Supreme Court resolved more than two centuries ago.
“Over 200 years ago, Chief Justice Marshall, sitting as the trial judge in the prosecution of Aaron Burr, upheld the issuance of a subpoena duces tecum to President Jefferson,” Katzmann wrote, launching into a sweeping view of history up to the 20th century.
“The most relevant precedent for present purposes is United States v. Nixon,” Katzmann noted, referring to a fight to release the tapes that torpedoed that presidency.
“The court noted that privileges “are not lightly created nor expansively construed, for they are in derogation of the search for truth,” he continued.
During oral arguments on Oct. 23, Judge Chin tested just how broadly Trump viewed his immunity with a hypothetical based on the president’s campaign boast. The Clinton appointee asked whether local authorities would be able to respond if Trump shot somebody on the middle of Fifth Avenue.
“No,” Consovoy responded at the time. “That is correct.”
Walking back that assertion only slightly, Consovoy later added that authorities could gather documents for later use, just not through the president or his “custodians.”
Monday’s ruling makes no reference to that exchange.
All parties agreed during oral arguments that the New York-based federal appellate court would not likely be the last stop.
“This case seems bound for the Supreme Court,” Katzmann remarked last month.
“I think both parties see that as an inevitability,” Vance’s assistant Carey Dunne agreed.
Judge Marrero, who will receive the case on remand to the Southern District of New York, likened the powers Trump asserted to that of 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 on Oct. 7.
Both the district and circuit rulings cite the cases of two impeached former presidents: Nixon and Clinton, as an inquiry about whether Trump will follow in their footsteps pervades Capitol Hill.