USA TODAY International Edition
Trump’s tax fight heads for a last stand
Supreme Court may weigh in after president’s struggle to shield his returns fails on appeal in New York.
NEW YORK – President Donald Trump’s fight to shield his tax returns and financial records from a local prosecutor was rejected by a federal appeals court Monday, sending the case to an expected showdown in the Supreme Court.
In a unanimous, narrowly- drawn decision, the New York- based U. S. Court of Appeals for the Second Circuit rejected claims by Trump’s lawyers that U. S. presidents have absolute immunity from grand jury investigations of criminal conduct until the end of their terms. Trump’s lawyers had claimed total immunity applies even if a president were suspected of shooting someone.
A three- judge appeals panel said the case did not require the court to consider whether the president is legally shielded from indictment and prosecution while in office, nor whether the chief executive may be required to produce records for use in a state criminal proceeding.
Instead, the judges said the only question to be resolved was whether a state may lawfully demand eight years of a president’s tax records from a third party for a grand jury investigation while the president is in office.
On that point, the judges ruled against Trump.
“The President has not been charged with a crime. The grand jury investigation may not result in an indictment
against any person, and even if it does, it is unclear whether the President will be indicted,” Chief Judge Robert Katzmann wrote in a decision for the panel.
“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,” he added.
A decision upholding Trump’s claim of absolute immunity even from a criminal investigation during his term of office would “exact a heavy toll on our criminal justice system,” Katzmann wrote.
The ruling noted that then- U. S. Chief Justice John Marshall upheld a subpoena to President Thomas Jefferson while presiding over the prosecution of Aaron Burr on treason charges, a case that ended with a not guilty verdict.
Similarly, the judges cited the Supreme Court’s rejection of President Richard Nixon’s immunity argument against a subpoena that required him to produce tape recordings and documents about conversations with key aides for use during criminal trials against those aides.
Because Trump has not demonstrated he’s likely to prevail in the case and hasn’t raised “sufficiently serious questions” about the merits of his immunity claim, the judges ruled he was not entitled to a preliminary injunction blocking the investigation.
Jay Sekulow, Trump’s lawyer, said the presidential legal team will petition the Supreme Court to review the ruling.
“The issue raised in this case goes to the heart of our Republic,” he said in a written statement. “The constitutional issues are significant.”
The office of Manhattan District Attorney Cyrus Vance, who sought the tax returns from Trump’s longtime accounting firm, declined to comment on the decision.
The judges also overturned the portion of a lower court ruling that dismissed Trump’s lawsuit on a jurisdictional issue between federal and state courts.
They sent the case back to the U. S. District Court for the Southern District of New York for further proceedings, though they noted the district court and attorneys on both sides may wish to consider whether any further proceedings are necessary.
Vance won’t get access to Trump’s tax returns anytime soon. Lawyers for both sides agreed to a 10- day delay of any effort by Vance to enforce the subpoena. During that time, a petition for Supreme Court review is to be filed, including a request that the court considers the case before the current term ends next summer.
Raising sweeping constitutional issues, the case marks the first legal test of whether sitting presidents may be targeted by criminal investigations through the court process.
The legal battle poses high personal and political stakes for Trump, who is also fighting to keep his tax returns and financial records away from congressional committees.
“The issue raised in this case goes to the heart of our Republic.”
Jay Sekulow
lawyer for President Donald Trump