For whatever reason, Donald Trump has sought to hide his tax returns from public scrutiny. The grand jury convened by the district attorney for New York County had issued a subpoena to Trump’s accountants to hand over eight years of tax returns returns as part of its investigations. Trump’s lawyers had argued that he had presidential immunity that prevented the release of those documents even though they were for a period that was before he became president.
A US District Court had earlier ruled against him and just today the US Second Court of Appeals also ruled unanimously against Trump. The Appeals Court ruling drew heavily from the Supreme Court case involving Richard Nixon’s claims of presidential immunity and said that Trump’s immunity claims were invalid for many reasons, chief among which were that the documents were being sought from his accountants and not the president himself and only as part of an investigation, so the constitutional issue of whether a sitting president could be indicted did not arise.
The opinion is quite short (only 34 pages) and makes for interesting reading. Here are key sections of the opinion.
The President relies on what he described at oral argument as “temporary absolute presidential immunity”—he argues that he is absolutely immune from all stages of state criminal process while in office, including pre-indictment investigation, and that the Mazars subpoena cannot be enforced in furtherance of any investigation into his activities.
…[A]fter reviewing historical and legal precedent, we conclude only that presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President.
…The President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions.
…The subpoena seeks only the President’s private tax returns and financial information relating to the businesses he owns in his capacity as a private citizen. These documents do not implicate, in any way, the performance of his official duties. We find no support in the Nixon Court’s conclusion—that even documents exposing the President’s confidential, official conversations may properly be obtained by subpoena—for the proposition that a President’s private and non-privileged documents may be absolutely shielded from judicial scrutiny.
…[W]e are not faced, in this case, with the President’s arrest or imprisonment, or with an order compelling him to attend court at a particular time or place, or, indeed, with an order that compels the President himself to do anything. The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.
…Although the subpoena is directed to the President’s custodian, no court has ordered the President to do or produce anything.
…Even assuming, without deciding, that a formal criminal charge against the President carries a stigma too great for the Constitution to tolerate, we cannot conclude that mere investigation is so debilitating.
…We emphasize again the narrowness of the issue before us. This appeal does not require us to consider whether the President is immune from indictment and prosecution while in office, nor to consider whether the President may lawfully be ordered to produce documents for use in a state criminal proceeding. We accordingly do not address those issues. The only question before us is whether a state may lawfully demand production by a third party of the President’s personal financial records for use in a grand jury investigation while the President is in office. With the benefit of the district court’s well-articulated opinion, we hold that any presidential immunity from state criminal process does not bar the enforcement of such a subpoena.
Trump has now 10 days in which he can appeal to the US Supreme Court, which of course he will. It is then up to that court to decide if the challenge has enough merit to warrant them taking it up. If they do take it up and rule in favor of Trump, it will be a major expansion of presidential immunity claims.
And a major step towards a dictatorship.
There is really only one reason that Trump wants to keep his taxes secret: there is actual fraud in his return -- fraud that is not outside the statute of limitations.
Q: how do you know a Trump tax return contains felony fraud?
A: it’s a tax return
The game has always been for Trump to run out the clock and the NY prosecutors’ to try to get evidence that is not out of date. For tax fraud it’s particularly interesting because there is literally no evidence beyond the return; basically we’re looking at Trump saying (for tax purposes on his return) that such and such building is worth, say $10m and then he turns around and claims its worth $20m when he lists collateral on a loan application. That it’s felony fraud doesn’t mean that probably every NY real estate speculator has pulled the same trick, which is why everyone is playing this stupid charade of “whatever might it be?!” The NYT even published a big piece on it -- Trump has always done tax crimes. The cops just have to create a plausible backstory for how they stumbled onto the big box labeled “krimes” in crayon.
@Marcus #2
There could be a second reason: that even if the tax evasion that was used was technically “legal”, thar it was so excessive and blatant that the public would recoil in horror if they ever saw it. Which is near certain.
But who am I kidding, there’s bound to be felony tax evasion in there too.
Is any of that treasonous?