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MANHATTAN (CN) – In the annals of federal and state court prosecutors, turf battles have cropped up occasionally over criminal investigations. What has broken out in a fight over President Donald Trump’s tax returns threatens to be a turf war.
On Thursday, Manhattan District Attorney Cyrus Vance filed a take-no-prisoners letter that skewers the Department of Justice for having “elected to insert itself” in federal court litigation over the state’s ongoing criminal probe of Trump.
“This DOJ position is all the more audacious in view of the fact that, until quite recently and for more than a year, DOJ prosecutors in this very district conducted a highly publicized grand jury investigation into some of the very same transactions and actors that have been reported to be at issue in this matter,” Assistant District Attorney Carey Dunne wrote, italicizing a thinly veiled swipe at the Southern District of New York.
A day earlier, when the Justice Department filed a statement of interest in Trump’s case, the name of U.S. Attorney Geoffrey Berman, who now leads the famously independent “Sovereign District” in Manhattan, appeared in the margins of the signature page along with that of his civil division chief Jeffrey Oestericher.
Representatives for the Southern District referred a press inquiry about the matter to Main Justice, which did not immediately respond to a request for comment.
Trump initiated the suit, which seeks to block New York from getting hold of his tax returns, and Wednesday’s brief focused on a seemingly limited issue: whether the fight between Trump and Vance belonged in state or federal court.
In a political musical chairs, the Republican Trump invokes federalism principles to keep matter in the Southern District of New York, while the Democratic Vance says precedent compels the court to honor states’ rights for his local investigation.
“Also of concern is the state’s sovereign right to enforce its criminal laws free from federal interference,” the district attorney’s letter states.
Trump has argued that no prosecutor, federal or state, can subject the president, his businesses, or his allies to the criminal process while he is in office.
Not adopting quite so expansive a view, the Justice Department argued that keeping the matter in federal court “will prevent irreparable harm to the president’s asserted constitutional interest in not having his records subjected to state criminal compulsory process in these circumstances.”
The Justice Department special counsel Joshua Gardner signed Wednesday brief.
In interviews with Courthouse News, three former federal prosecutors from the Southern District of New York expressed concern about their former colleagues’ position.
“DOJ is seeking for an exception to the usual rules that govern federal jurisdiction and abstention,” wrote Harry Sandick, who is now a white-collar defense attorney for the firm Patterson Belknap Webb & Tyller. “The exception only applies to the president. Most of the brief comes down to an ahistorical argument that the Constitution in Article II creates an executive that is rather like a king, who can avoid being investigated and even can protect his family and business from investigation.”
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