A20 EZ RE THE WASHINGTON POST.TUESDAY, NOVEMBER 5 , 2019
PowerPost
INTELLIGENCE FOR LEADERS WASHINGTONPOST.COM/POWERPOSTBY JONATHAN O’CONNELL
AND ANN E. MARIMOWA federal appeals court on
Monday unanimously rejected
President Trump’s effort to block
New York grand jury subpoenas
for his tax records, setting up a
possible Supreme Court show-
down.
New York prosecutors are seek-
ing eight years of Trump’s tax
returns from his accounting firm
in their investigation of hush-
money payments made by
Trump’s then-attorney Michael
Cohen before the 2016 election.
Trump’s attorneys have argued
that as president, Trump is im-
mune not only from prosecution
but from investigations. But in
the decision, a three-judge panel
of the U.S. Court of Appeals for
the 2nd Circuit held that “any
presidential immunity from state
criminal process does not bar the
enforcement of such a subpoena.”
Rebutting the argument that
allowing the case to proceed
would hinder the president in his
duties, Chief Judge Robert A.
Katzmann said Trump was not at
risk of imminent arrest or impris-
onment — and wasn’t required to
do anything.
“The subpoena at issue is di-
rected not to the President, but to
his accountants; compliance does
not require the President to do
anything at all,” Katzmann wrote.
He was joined by Judges Denny
Chin and Christopher F. Droney;
all three were nominated by Dem-
ocratic presidents.
Of several ongoing legal and
congressional investigations
seeking Trump’s tax returns, the
case involving subpoenas from
Manhattan District Attorney
Cyrus R. Vance Jr. (D) to Trump’s
longtime accounting firm,
Mazars, is on track to be the first
to reach the Supreme Court.
Still, the ruling does not mean
that Trump’s tax records will be
turned over immediately. Trump
plans to appeal the case to the
Supreme Court, according to Jay
Sekulow, counsel to the president.
“The decision of the Second
Circuit will be taken to the Su-
preme Court,” Sekulow said in a
statement. “The issue raised in
this case goes to the heart of our
Republic. The constitutional is-
sues are significant.”
Prosecutors agreed to delay en-forcement of the subpoena to
Mazars if the president’s lawyers
move quickly to ask the Supreme
Court to intervene. Under the
agreement between prosecutors
and the president, Trump’s attor-
neys have 10 days to ask the
Supreme Court to step in. Any
appeal must ask the court to hear
the case this term, meaning be-
fore the end of June.
Trump’s attorneys will proba-
bly ask the Supreme Court to
leave the stay in place while the
court decides whether to accept
the case.
A spokesman for Vance’s office
declined to comment.
One of Trump’s private attor-
neys, William S. Consovoy, had
argued in the case that Trump
enjoys “temporary presidential
immunity” from investigations or
prosecution while president, im-
munity that he argued would ap-
ply even if Trump were to shoot
someone.
In its 34-page opinion Monday,
the court noted that in 1974, the
Supreme Court ordered the
White House to hand over Presi-
dent Richard Nixon’s audiotapes
during the Watergate investiga-
tion.
Trump, the court wrote, “has
not persuasively explained why, if
executive privilege did not pre-
clude enforcement of the subpoe-
na issued in Nixon, the Mazars
subpoena must be enjoined de-
spite seeking no privileged infor-
mation and bearing no relation to
the President’s performance of
his official functions.”
Legal experts called the deci-
sion a “narrow” ruling that did
not address the issue of presiden-
tial immunity head-on.
“The judges avoided a lot of
difficult and wide-ranging issues
that they concluded were not nec-
essary to decide,” said Deepak
Gupta, an attorney for plaintiffs
who are suing Trump in a sepa-
rate case, over the president’s
business dealings.
The Mazars case is one of sever-
al legal clashes testing the limits
of presidential power that are
expected to reach the Supreme
Court as soon as this term. Mon-
day’s decision marked the second
time in recent weeks that a feder-
al appeals court has ruled against
Trump in his bid to stop investiga-
tors from scrutinizing his private
financial records.The past six presidents, dating
back to Jimmy Carter, all volun-
tarily released their tax returns to
the public, something the judges
said in their ruling “reinforces
our conclusion that the disclosure
of personal financial information,
standing alone, is unlikely to im-
pair the President in performing
the duties of his office.”
Even if Trump loses the case,
that does not mean his tax infor-
mation will be released to the
public. His attorneys have argued
that the subpoenas ought to be
blocked in part out of concerns
that prosecutors would make
public any of Trump’s financial
information they acquire. But
making such information public
would violate state law, and in
court filings prosecutors have
called those suggestions “outra-
geous.”
During oral arguments last
month, Consovoy told the court
that the subpoena is a politically
motivated “fishing expedition.” A
sitting president, he said, cannot
be investigated — or prosecuted
— while in office, even for shoot-
ing someone on the streets of
Manhattan.
The appeals court upheld an
October ruling from U.S. District
Judge Victor Marrero, who dis-
missed Trump’s lawsuit. Marrero
rejected the president’s claim of
immunity as “repugnant to the
nation’s fundamental structure
and constitutional values.”
The case began in August when
Vance’s office subpoenaed Mazars
for eight years of the president’s
tax records and other financial
documents. The office is examin-
ing whether any state laws were
broken in connection with the
2016 payments to silence two
women who said they had affairs
with Trump. Mazars issued a
statement saying that the firm
“will respect the legal process and
fully comply with its legal obliga-
tions.”
Internal Justice Department
legal opinions say sitting presi-
dents cannot be charged by feder-
al prosecutors. But those guide-
lines do not apply to Vance, an
elected New York prosecutor who
enforces state laws.
[email protected]
[email protected]Deanna Paul and Carol D. Leonnig
contributed to this report.Appeals court rejects Trump’s effort
to withhold tax returns in N.Y. case
it’s directed at Trumpism,” he
said.
“There’s no doubt that the
election of Donald Trump has
revealed things to people about
the state of mind for many
people in our country,” he
elaborated. “For example, if you
look at polling, I’ve seen over the
last couple of years, a growing
number of Americans believe
that those who are members of
the opposite party aren’t just
wrong.... They view them as a
threat to the country. That sort
of political tribalism I don’t
think is unique to Donald
Trump.
“I think you see it on the
other side as well.... It would
be wrong to blame that on social
media or the press, the
president or the Democrats. The
truth of the matter is that one
reason why it’s happening is
because a lot of Americans
simply don’t know people that
are different than them
politically.”
Rubio said he fears the
impeachment process will only
worsen these trends. “For those
who truly don’t like this
president and would like to see
him removed, that’s what the
ballot box is for. That doesn’t
mean impeachment is
something you can never use,
but I certainly think that, as part
of this, you have to consider
what’s in the best interest of
America.”
Rubio was adamant that he’s
not “triangulating” with the
times. “Honestly, this is just a
continuation of what we’ve been
doing for five or six years,” he
said.
His advocacy for “common-
good capitalism” is partly driven
by polls showing growing
receptiveness toward socialism,
especially among younger
voters. “Some politicians today
entice us to embrace socialism,
with the promise that only the
government can provide us
these things, but in practice
that’s never how it works,” he
will say in his speech.
[email protected]tremendous harm on
Americans.”
The senator blames what’s
known as “shareholder primacy
theory” for a host of ills. He links
a decline in the availability of
the kind of dignified work that
his parents found when they
arrived from Cuba in 1956 to
weakened families and
communities.
Rubio calls for government
policies disincentivizing selfish
corporate decision-making, such
as imposing taxes on share
buybacks, while rewarding
investment in domestic
manufacturing and new
research. He also wants to
change the tax code to expand
the federal per-child tax credit
and enact a paid family leave
policy.
Rubio defended bringing his
faith into a conversation about
economics because he said it
reinforces values such as
respecting others, caring for the
less fortunate, telling the truth
and being courteous.
In his prepared remarks, the
senator jokes about blowback
that Attorney General William P.
Barr received for a speech on
religious liberty at the
University of Notre Dame a few
weeks ago. “I am here today fully
aware that... nowadays if a
Catholic public official speaks to
a Catholic audience on the
intersection between our faith
and public policy, we’ll be
accused of supporting a
‘religious theocracy’ right out of
‘The Handmaid’s Tale,’ ” Rubio
plans to say. “So in order to
avoid controversy, I could have
started my remarks by quoting
from some mainstream
acceptable sources of wisdom,
such as Oprah Winfrey or some
‘woke’ entertainer. But, instead,
I settled on focusing on the
writings of a 19th-century
Italian named Vincenzo Pecci.”
(Pecci is Pope Leo XIII.)
When I asked whether his
speech should be read as a
critique of Trump, Rubio said
his message is bigger than any
single politician. “I don't know ifAmerican life that all of us have
a series of rights and
obligations,” Rubio said. “I think
we’re all well versed on our
rights, but the concept of
obligation has gone away, and
oftentimes people forget that
this also applies to the business
sector.”
He presents his proposal as a
corrective to the excesses of both
parties. “The belief that
economic policy is solely about
maximizing the rights of
business and GDP growth
became conventional wisdom on
the political right, and the belief
that economic policy is solely
about defending the rights of
the workers against the greed of
business owners has become the
conventional wisdom of the
political left,” he said. “For
almost three decades now, our
economic debate has boiled
down to a false choice between
these two misguided positions.
The result has inflictedon the importance and value of
work, but also on the obligation
of the employer and of the
private economy to provide
dignified work.”
Rubio said he believes the
128-year-old treatise from the
Vatican takes on fresh urgency
considering America’s great
power competition with China.
“China is undertaking a patient,
well-designed effort to reorient
the global order to their
advantage, but how can we
possibly take on this challenge... if we do not first confront
our crises at home? Because we
are in a competition with a near-
peer adversary with three times
our population, we can’t afford
to leave anyone behind,” he
plans to say in his speech.
The senator will call for an
embrace of “common-good
capitalism,” in which employers
and workers cooperate in the
pursuit of mutual benefits.
“We’ve lost this concept in
For example, Rubio cites the
Greek statesman Pericles and
the Roman emperor Marcus
Aurelius.
Rubio also leans on his
personal faith while discussing
his increasingly populist
economic policy. At the heart of
his prepared remarks is a
lengthy rumination on an
encyclical issued by Pope Leo
XIII in 1891. “Rerum Novarum,”
as the encyclical was called,
represented the Catholic
Church’s response to the
disruptions of the Industrial
Revolution. Leo endorsed the
right of workers to form unions
so they can partake in the
benefits they create, while
affirming the right to own
private property. More broadly,
the pope rejected socialism but
also laissez-faire capitalism.
“The social doctrine of the
church is not something that
gets a lot of attention,” Rubio
told me. “And a lot of it is basedMarco Rubio
regrets mocking
philosophy
majors.
“Going back to
when I ran for
president, one of
the moments that people
remember is when I talked
about how we need more
welders and less philosophers,”
the senior senator from Florida
said in an interview. “Since that
time, I’ve actually been reading
philosophy a little bit. Like the
Stoics. I am, actually, maybe not
so negative on philosophy
anymore.”
Rubio said his underlying
point about the importance of
vocational education remains,
but he recognizes the need for a
more intellectual approach to
modernize conservatism. The
senator argues the primary
purpose of capitalism is to
provide for human dignity. He
has concluded since losing the
Republican nomination to
Donald Trump in 2016 that
corporate executives, by
prioritizing shareholders above
workers and quarterly profits
above the national interest, have
caused an existential crisis of
confidence in the underpinnings
of the free-enterprise system.
The senator has carefully
picked his spots when it comes
to airing public disagreements
with Trump. He has largely gone
along with the Republican
zeitgeist, with some notable
exceptions, such as voting to
override Trump’s declaration of
a national emergency to fund
the border wall. But, at just
48 and representing the
quintessential battleground
state, Rubio remains well
positioned to chart a post-
Trump future for the GOP and to
make another run for the
presidency.
Rubio shared with me a 17-
page working draft of a lecture
he’s preparing to deliver on
Tuesday to business students at
the Catholic University of
America. He gets quite
philosophical for a politician.
A philosophical Marco Rubio thinks Catholic social beliefs can save capitalism
The
Daily 202
JAMES
HOHMANN
MATT MCCLAIN/THE WASHINGTON POST
Sen. Marco Rubio (R-Fla.) leans on his Catholic faith for his increasingly populist economic policy.AW19-FREE Information Kit!
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