The New York Times - 08.10.2019

A20 N THE NEW YORK TIMES NEW YORKTUESDAY, OCTOBER 8, 2019

the bench in 1999 by President Bill
Clinton.
The dispute has pitted the Man-
hattan district attorney, Cyrus R.
Vance Jr., against the president
and his Justice Department and
has raised a host of issues that
have not been tested in the courts.
The Constitution does not explicit-
ly say whether presidents can be
charged with a crime while in of-
fice, and the Supreme Court has
not ruled on the issue.
Walter Dellinger, who served as
acting United States solicitor gen-
eral in the Clinton administration,
said Judge Marrero’s opinion was
“an emphatic rejection of the im-
perial presidency claim that a
president cannot even be investi-
gated.”
The judge’s decision came a lit-
tle more than a month after Mr.
Vance subpoenaed Mr. Trump’s
accounting firm, Mazars USA, for
his personal and corporate tax re-
turns dating to 2011.
Mr. Vance’s office has been in-
vestigating whether any New
York State laws were broken when
Mr. Trump and his company, the
Trump Organization, reimbursed
the president’s former lawyer and
fixer, Michael D. Cohen, for pay-
ments he made to the porno-
graphic film actress Stormy Dan-
iels, who had said she had an affair
with Mr. Trump. Mr. Trump has
denied the affair.
Mr. Trump’s lawyers sued last
month to block the subpoena. The
lawyers acknowledged that their
constitutional argument had not
been tested, but said presidents
have such enormous responsibil-
ity and a unique position in gov-
ernment that they cannot be bur-
dened with investigations, espe-
cially by local prosecutors who
might be politically motivated.
“This case presents momentous
questions of first impression re-
garding the presidency, federal-
ism and the separation of powers,”
a lawyer for the president, Patrick
Strawbridge, wrote to the appeals
court on Monday. He said the los-
ing party should be given time to
appeal to the Supreme Court.
The case also has drawn in Mr.
Trump’s own Justice Department,
which has not taken a position on
the president’s argument but sup-
ported his request to delay en-
forcement of the subpoena be-
cause of the “significant constitu-
tional issues.”
A lawyer for the president and a
spokesman for Mr. Vance both de-
clined to comment on Monday, as
did a spokeswoman for the Justice
Department.
The decision was a victory for
Mr. Vance, whose office had asked
Judge Marrero to dismiss Mr.
Trump’s suit, accusing the presi-
dent and his team of trying to drag
out the investigation until the stat-
ute of limitations runs out on any
possible crime.
Mr. Trump’s lawyers have
called the investigation by Mr.
Vance, a Democrat, politically mo-
tivated.
Longstanding policy from the
Justice Department bars federal
prosecutors from charging a sit-
ting president with a crime. De-
partment lawyers have concluded
that presidents have temporary
immunity while they are in office.
But in the past, that position has
not precluded investigating a
president. Mr. Trump and other
presidents have been the subjects
of federal criminal investigations
while in office. Local prosecutors,
such as Mr. Vance, are also not
bound by the Justice Depart-
ment’s policy.
Mr. Trump’s arguments went a
step further, starting with a cen-
tral claim that the Constitution
gave him sweeping immunity not
just from indictment and prosecu-
tion, but also from any investiga-
tion by federal or state authorities.
In his opinion, Judge Marrero
pointedly noted that in throwing
off the yoke of the British crown,
the country’s founders had dis-
missed the notion of broad immu-
nity.
“Shunning the concept of the in-
violability of the person of the
King of England and the bounds of
the monarch’s protective screen,”

the judge wrote, “the founders

disclaimed any notion that the

Constitution generally conferred

similarly all-encompassing im-

munity upon the president.”

Judge Marrero also dispatched

Mr. Trump’s other claims, includ-

ing that the district attorney had

no authority to subpoena his tax

returns or had acted in bad faith,

and that being forced to turn over

the returns would cause Mr.

Trump “irreparable harm.”

The judge rejected the conclu-

sions of three Justice Department

memos dating back to as early as

1973 that he said have long been

cited as supporting the interpre-

tation that a sitting president can-

not be charged with a crime.

He said the memos rely on

“suppositions, practicalities and

public policy” as well as dire pic-

tures of hypothetical scenarios —

and not on an actual case.

Late Monday, the appeals court

said that it would hear arguments

in the case later this month and

that enforcement of the subpoena

would be delayed at least until

then.

If Mr. Vance ultimately prevails

in obtaining the president’s tax re-

turns, they would not automati-

cally become public. The docu-

ments would be protected by rules

governing the secrecy of grand

jury investigations unless the doc-

uments became evidence in a

criminal case.

The president and his lawyers

have fought vigorously in other

venues to shield his tax returns,

which Mr. Trump said during the

2016 campaign that he would

make public but has since refused

to disclose.

Mr. Trump’s lawyers have sued

to stop attempts by congressional

Democrats to gain access to his

tax returns and financial records

and to block a New York State law

that would share state tax returns

with congressional committees.

They also successfully challenged

a California law requiring presi-

dential primary candidates to re-

lease their tax returns.

Mr. Vance’s office has been in-

vestigating whether the Trump

Organization falsely accounted

for the reimbursements to Mr. Co-

hen as a legal expense. In New

York, filing a false business record

can be a crime.

But it becomes a felony only if

prosecutors can prove that the

false filing was made to commit or

conceal another crime, such as

bank fraud or tax violations. It

was unclear why the office has at-

tempted to obtain Mr. Trump’s

personal financial records as part

of that inquiry.

Mr. Trump’s accounting firm,

Mazars, which he sued along with

the district attorney’s office to bar

the company from turning over

his returns, reiterated an earlier

statement that it would comply

with its legal obligations.

Judge Rejects Effort to Shield Trump’s Tax Returns in Manhattan

Lawyers for President Trump claimed not just sweeping immunity from indictment and prosecution, but also from any investigation by federal or state authorities.

ANNA MONEYMAKER/THE NEW YORK TIMES

From Page A

The Manhattan district attorney, Cyrus R. Vance Jr., has accused the president and his team of try-

ing to drag out the investigation until the statute of limitations runs out on any possible crime.

Calling ‘repugnant’ a

claim that presidents

are immune from

investigation.

On Monday, a federal judge is-

sued a ruling that effectively or-

dered President Trump’s ac-

countants to turn over eight years

of his personal and corporate tax

returns to the Manhattan district

attorney.

Mr. Trump’s lawyers immedi-

ately appealed the decision, and

an appeals court temporarily

blocked the ruling. So for now, the

president can keep his financial

information secret.

But the case raises sweeping

constitutional issues that could

reach the United States Supreme

Court. Mr. Trump argued that sit-

ting presidents are immune from

criminal investigations, a position

that has not been tested in a court.

In a 75-page decision, Judge

Victor Marrero of Manhattan fed-

eral court called that argument an

“extraordinary claim” that was

“repugnant to the nation’s gov-

ernmental structure and constitu-

tional values.”

Here are five takeaways:

Judge says presidents are not

immune from criminal inquiries.

The legal showdown started in

late August, when the Manhattan

district attorney, Cyrus R. Vance

Jr., subpoenaed Mr. Trump’s ac-

counting firm for his personal and

corporate tax returns dating to

2011.

Mr. Vance has been investigat-

ing whether any New York State

laws were broken when Mr.

Trump and his company reim-

bursed the president’s former

lawyer and fixer, Michael D. Co-

hen, for payments he made to the

pornographic film actress Stormy

Daniels, who had said she had an

affair with Mr. Trump. The presi-

dent denies the affair.

In their lawsuit seeking to

block the subpoena, Mr. Trump’s

lawyers argued that the investi-

gation itself is unconstitutional.

They asserted that presidents

cannot be subject to the burden of

investigations, especially from lo-

cal prosecutors who may use the

criminal process for political gain.

Judge Marrero rejected that ar-

gument wholesale. “Neither the

Constitution nor the history sur-

rounding the founding support as

broad an interpretation of presi-

dential immunity as the one now

espoused by the President,” the

judge wrote.

Presidents might not even be

immune from criminal charges.

Federal prosecutors are barred

from charging a sitting president

with a crime because the Justice

Department has decided that

presidents have temporary im-

munity while they are in office.

The special counsel, Robert S.

Mueller III, was following that di-

rection when he said in May that

presidents could not be charged.

That position is outlined in two

Justice Department memos writ-

ten during the Nixon and Clinton

administrations, citing the bur-

den that a barrage of investiga-

tions would put on the president.

But Judge Marrero called it into

question. He said the memos rely

on “suppositions, practicalities

and public policy” as well as dire

pictures of hypothetical scenarios

— and not on an actual case.

Either way, those memos —

themselves interpretations of the

Constitution — do not bind the

hands of a local prosecutor such

as Mr. Vance. Still, the question of

whether a president can face

state criminal charges also has

never been tested, the judge

noted.

The question could reach the

United States Supreme Court.

Mr. Trump’s lawyers quickly

appealed Judge Marrero’s deci-

sion to the Second Circuit Court of

Appeals in Manhattan. Depend-

ing on what happens there, the

losing side ultimately could try to

take the case up to the Supreme

Court.

The Department of Justice said

on Monday that it planned to

weigh in on the case as well.

That does not mean the high

court would agree to take the

case. But if it does, it could set a

sweeping new constitutional

precedent about presidential im-

munity. Did the framers intend for

impeachment by the House and

conviction by the Senate to be the

only vehicle for handling any

wrongdoing by the president?

Should prosecutors with possible

political bias have the unfettered

ability to disrupt a presidency? Is

no American above the law?

Even if the D.A. wins, the tax

returns may not be made public.

The president has fought multi-

ple attempts to obtain copies of

his tax returns, which he said dur-

ing the 2016 campaign that he

would make public but has since

refused to disclose.

Mr. Trump’s lawyers have sued

to block attempts by congres-

sional Democrats to access his

tax returns and financial records,

and by New York lawmakers to

release state tax returns to con-

gressional committees. They also

successfully challenged a Califor-

nia law requiring presidential pri-

mary candidates to release their

tax returns.

But even if Mr. Vance prevails

and obtains Mr. Trump’s tax re-

turns, they would not automati-

cally become public. The docu-

ments would be protected by the

rules governing grand jury se-

crecy unless they became part of

a criminal case.

Time is running out, and Mr.

Vance says that’s no accident.

Aside from the constitutional

question, the practicalities of the

investigation are at stake. Mr.

Vance has accused the president

of trying to delay the subpoena

until the statute of limitations on

any possible crimes run out. The

president’s lawyers have denied

this.

Mr. Vance’s office has been in-

vestigating whether the Trump

Organization falsely accounted

for the reimbursements to Mr. Co-

hen as a legal expense. It was un-

clear why the office has at-

tempted to obtain Mr. Trump’s

personal financial records as part

of that inquiry.

5 Takeaways on a Ruling

Over Presidential Powers

By BENJAMIN WEISER

and WILLIAM K. RASHBAUM

Contact the Newsroom
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INTERNATIONAL

An article on Saturday about
steps taken by Saudi Arabia and
Iran to ease tensions misidenti-
fied the affiliation of Martin In-
dyk. He is a distinguished fellow
at the Council on Foreign Rela-
tions, not the executive vice presi-
dent of the Brookings Institution.

NATIONAL

An article on Sunday about a
conference on forensic genealogy
misstated Department of Justice
guidelines as described by Ted
Hunt, senior adviser to the attor-

ney general on forensic science at

the Department of Justice. He

said he was referring to publicly

available records used to conduct

genealogy research, not specifi-

cally to uploads to genealogy

databases, when discussing the

Department of Justice’s role in

providing guidance to investiga-

tors.

SPORTS

An article on Sunday about the

difficulties that Qatar has faced in

hosting the track and field world

championships, referred incor-

rectly to the company sponsor-

ships in Qatar’s bid to host the

event. There were millions of

dollars in sponsorships, not mil-

lions of sponsorships.

An article on Friday about the

Yankees pitcher James Paxton

misstated his performance at the

end of the season. He won his

final 10 decisions, not his final 10

starts.

ARTS

A theater entry in the Listings

pages on Friday about “The

Wrong Man” misstated the play’s

opening date for “The Wrong

Man.” It opens on Oct. 9.

An article on Friday about a

looted Ethiopian crown misidenti-

fied the Ethiopian ambassador to

the Netherlands. He is Million

Samuel Gebre, not Abay Weldu

Hagos.

An article on Friday about the

new CW television drama “Nancy

Drew” misstated the surname of

the showrunner for the series.

She is Melinda Hsu Taylor, not

Melinda Hsu.

OBITUARIES

An obituary on Sept. 27 about the

lawyer Plato Cacheris referred

incompletely to the circumstances

under which the former National

Security Agency contractor Ed-

ward J. Snowden received asylum

in Russia. He had been traveling

to Latin America from Hong Kong

but was stopped and detained at a

Moscow airport before boarding a

connecting flight when authorities

learned that his United States

passport had been revoked. Al-

though Russia eventually granted

him asylum, it is not the case that

he “fled to asylum” there.

An obituary on Friday about the

lawyer Jerome Facher referred

incorrectly to his military service.

Although he was in the Army, he

did not serve in the Korean War.

Errors are corrected during the press

run whenever possible, so some errors

noted here may not have appeared in

all editions.

Corrections

JEFFERSON SIEGEL FOR THE NEW YORK TIMES