For those following along on many major news sites on Wednesday, President Donald Trump’s lawyer William Consovoy apparently told federal judges that if a president shot people on Fifth Avenue, not only could he not be indicted, but he could not even be investigated.
This was not, in fact, what happened: Consovoy immediately apologized for creating this impression for the judges, clarifying that state officials might investigate, but could not subpoena, a sitting president. Consovoy was raising a valid concern about a “proliferation” of partisan state prosecutions burdening a president. While his argument for total immunity from state process went too far, he was making an important argument for federal jurisdiction to review state subpoenas of a president, which should be sufficient to prevent abuses.
But it was earlier in Consovoy’s answers—overlooked by the media and the judges themselves—that his arguments backed into a more practical and immediate danger.
The case now before the Second Circuit Court concerns a subpoena from Manhattan District Attorney Cyrus Vance of Trump’s tax returns from his accountant. A federal trial court decided earlier this month to abstain from jurisdiction in the case, meaning it would be left to the New York state courts, and rejected Trump’s lawyers’ argument that the president ought to have immunity from state investigation. On Wednesday, Consovoy asked the Second Circuit judges to reverse that earlier decision on jurisdiction, and to categorically deny all state “criminal process” (such as subpoenas) leveled against the president.