It’s impossible to deny the cleverness of the legal arguments put together by the Trump administration and President Donald Trump’s personal lawyers as they fight investigations against him.
In defending Trump, his attorneys have contended that Congress cannot obtain documents related to Trump’s financial dealings, because that’s a power reserved for prosecutors. Elsewhere, they have argued that prosecutors can’t investigate Trump, because that’s a power delegated to Congress under the Constitution. And when Congress has attempted to flex that impeachment power, Trump has said it’s a coup, and that the only proper venue for presidential accountability is elections.
The arguments build a steel hull around the president, attempting to keep the rising tide of probes from getting him wet by closing off every angle for investigation. But like the similarly unsinkable Titanic, this legal edifice hit an iceberg on a trip to Manhattan.
In a scorching opinion Monday, federal district-court Judge Victor Marrero dismissed a lawsuit by Trump’s attorneys, who sought to prevent Manhattan District Attorney Cy Vance Jr. from obtaining several years’ worth of the president’s tax returns from his accounting firm via subpoena.
“The President asserts an extraordinary claim [that] the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind,” Marrero wrote. “This Court cannot endorse such a categorical and limitless assertion of presidential immunity from judicial process as being countenanced by the nation’s constitutional plan.”
Accepting Trump’s arguments, Marrero wrote, would mean that not only the president but his relatives and business associates “are in fact above the law.”
The judge’s opinion is likely to be appealed and might be stayed, but his indignant dismissal points to the flaw in the Trump legal argument. The president has repeatedly expressed a yearning for the powers of an autocrat, and has successfully subordinated the power of the executive branch to pursuing his will—from chasing conspiracy theories around the globe to the Justice Department intervening in this case on the president’s side. But there are leaks in the hull: federal judges who don’t answer to Trump, whistle-blowers and inspectors general who sidestep his power, and state and local authorities who aren’t bound by federal law.
Since taking control of the House in January 2019, Democrats have fired off a fusillade of subpoenas at Trump and his associates. To fight these off, Trump’s attorneys have advanced aggressive legal theories. They’ve instructed current and former aides not to testify, citing executive privilege. The White House has even claimed that Corey Lewandowski, a former Trump-campaign aide who’s never worked for the executive branch, is subject to privilege.
Trump’s lawyers have also questioned Congress’s authority. When House committees have sought financial documents, including tax returns—which the House can obtain under federal law—from Trump’s accounting firm and banks, the Justice Department has argued there is not “legitimate legislative purpose” for requesting them; it’s just harassment. Attempting to foil this, Democrats argued that the requests were kinda-sorta part of an impeachment inquiry: They didn’t want to admit they were trying to impeach Trump, but they also wanted to demonstrate a clear constitutional purpose behind their requests.
Litigation in those requests is still in process, though the question of impeachment has now been resolved, with Speaker Nancy Pelosi’s green light for an impeachment inquiry in September. Now that Democrats are working under that umbrella, Trump has attacked the inquiry, saying it amounts to a coup and that voters should decide his fate. Following Trump’s logic, Congress can’t pursue oversight if it’s not impeaching, and can’t pursue oversight if it is.
Meanwhile, with the White House stonewalling Congress, state governments have begun acting. California passed a law requiring candidates for president to disclose tax returns (the law has been challenged), and New York passed a law allowing Congress access to candidates’ New York State returns if requested. Meanwhile, Vance subpoenaed Trump’s tax returns from his accounting firm in connection with hush-money payments to the porn actress Stormy Daniels.
In suing to block the subpoena, Trump’s personal lawyers have argued the reverse of their previous position, The Washington Post notes: They say that Trump is immune from criminal investigation while president, because the Constitution delegates that power to Congress, in the form of impeachment.
The Justice Department weighed in, asking the judge to take extra time to consider the case. As I have written, every delay serves Trump’s purposes, because it runs out the clock on impeachment before the 2020 election. Marrero noted that past Justice Department memos have expressed a sweeping immunity for the president, but those memos address federal criminal law, as opposed to the state proceeding under consideration now. “The President’s claim would tread upon principles of federalism and comity that form essential components of our constitutional structure and the federal/state balance of governmental powers and functions,” the judge wrote.
The Trump lawyers’ argument is breathtaking in scope and chutzpah. Other presidents have fought investigations hard in the courts. Bill Clinton fought a lawsuit from Paula Jones, who alleged sexual harassment against him, all the way to the Supreme Court, arguing the president couldn’t be sued, because it would distract him from his duties. (Clinton lost, and ultimately settled the case.) But that was a civil suit. Here, as Marrero notes, Trump appears to be trying to build a doctrine that would exempt the president from any criminal prosecution at any level.
Marrero’s ruling shows how challenging it will be to succeed. Though Trump has bridled against the idea of judges reviewing his policies, and has been extremely successful in appointing federal judges, he cannot choose who will hear any particular case, and the judiciary remains full of judges who are not beholden to him, and even Trump appointees enjoy the independence of lifetime tenure. (Marrero is a Clinton appointee.) If Marrero’s reasoning triumphs, it will show how the federalist system also constrains Trump, because state and local authorities are not under the thumb of the president. There are also other leaks in Trump’s hull, like statutes that allow whistle-blowers to come forward and avoid retaliation.
Trump has often labeled this “treason” or part of some shadowy conspiracy. But Marrero’s opinion, with its invocations of the Founders’ concerns about monarchical inviolability, debunks this talking point. This isn’t the deep state at work: It’s the American system of government, working as designed.
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