Milwaukee Journal Sentinel

Appeals court: Trump returns can be turned over,

Judges did not consider question of immunity

- Larry Neumeister

NEW YORK – President Donald Trump’s tax returns can be turned over to New York prosecutor­s by his personal accountant, a federal appeals court ruled Monday, leaving the last word to the Supreme Court.

The decision by the 2nd U.S. Circuit Court of Appeals in Manhattan upholds a lower court decision in the ongoing fight over Trump’s financial records. Trump has refused to release his tax returns since he was a presidenti­al candidate and is the only modern president who hasn’t made that financial informatio­n public.

In a written decision, three appeals judges said they only decided whether a state prosecutor can demand Trump’s personal financial records from a third party while the president is in office.

The appeals court said it did not consider whether the president is immune from indictment and prosecutio­n while in office or whether the president himself may be ordered to produce documents in a state criminal proceeding.

“We hold that any presidenti­al immunity from state criminal process does not bar the enforcemen­t of such a subpoena,” 2nd Circuit Chief Judge Robert A. Katzmann wrote.

According to the decision, a subpoena seeking Trump’s private tax returns and financial informatio­n relating to businesses he owns as a private citizen does “not implicate, in any way, the performanc­e of his official duties.”

“We 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 2nd Circuit said. “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.”

Several weeks ago, U.S. District Judge Victor Marrero in Manhattan tossed out Trump’s lawsuit seeking to block his accountant from letting a grand jury see his tax records from 2011.

Manhattan District Attorney Cyrus R. Vance Jr. sought the records in a broader probe that includes payments made to buy the silence of two women, porn star Stormy Daniels and model Karen McDougal, who claim they had affairs with the president before the 2016 presidenti­al election. Trump has denied those claims.

Danny Frost, a spokesman for Vance, declined to comment.

The lawyer who argued the case on Trump’s behalf before the appeals court did not immediatel­y respond to a message seeking comment.

During oral arguments, Trump’s lawyer told the 2nd Circuit that Trump is immune from state criminal law even if he shoots someone, because he’s president.

Vance’s attorneys have argued that Trump is not above the law, while the president’s lawyers have said the Constituti­on prohibits states from subjecting the U.S. president to criminal process while he is in office.

In the subpoena to Trump’s longtime accountant, Vance’s lawyers call for financial and tax records of entities and individual­s, including Trump, who engaged in transactio­ns in Manhattan.

The 2nd Circuit noted that Trump has not been charged with a crime; his lawyers have acknowledg­ed that he could be prosecuted after leaving office.

“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,” the appeals court said. “There is no obvious reason why a state could not begin to investigat­e a President during his term and, with the informatio­n secured during that search, ultimately determine to prosecute him after he leaves office.”

Trump’s lawyers have said the probe by Vance, a Democrat, is politicall­y motivated.

U.S. Justice Department lawyers in Washington also urged the 2nd Circuit to reverse the findings of the lower court, saying Vance must prove “particular­ized need” for the records before they are released to a grand jury.

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