Prosecutors flag that DOJ is not in sync with Trump on tax returns claim

By Josh Gerstein

New York prosecutors pressing for access to President Donald Trump’s tax returns are drawing attention to the Justice Department’s refusal to back up a claim by Trump’s personal attorneys that he is immune from the state-run criminal justice process.

Manhattan District Attorney Cyrus Vance Jr. highlighted the disagreement Tuesday in a brief filed with a federal appeals court considering a suit Trump filed to block a grand jury subpoena issued to one of his accounting firms, Mazars USA.

“Given the DOJ’s own recent investigations, prosecutions, and convictions involving Appellant and his affiliates, including the prosecution of Michael Cohen, in which Appellant was referenced as an unindicted co-conspirator, the DOJ cannot (and does not) join in Appellant’s claim to an absolute immunity,” Vance and his colleagues wrote in a submission to the 2nd U.S. Circuit Court of Appeals. “Appellant’s aggressive immunity claim here is particularly hollow in view of his failure to raise it in these recent investigations and prosecutions.”

The Justice Department brief filed in the case last week said the effort to use a criminal subpoena to obtain Trump’s tax returns raised “significant constitutional questions” and should be put on hold so its effects could be reconsidered by a federal district judge.

But Justice officials did not go as far as Trump lawyers, who argued a sitting president is off-limits to state prosecutors.

Vance’s team also scoffed at arguments from Trump and the Justice Department that impeachment is the mechanism the Constitution prescribes for misconduct by a president. The prosecutors noted Trump White House counsel Pat Cipollone sent a letter to Congress last week defying its demands for information in an impeachment inquiry.

“The reality is that Appellant has refused to participate in the very impeachment process that he presents here as the bulwark against placing a president above the law. … His core position on every one of these matters is that the United States Presidency places him beyond the reach of the law,” Vance’s office wrote.

Prosecutors also emphasized their argument that allowing Trump to fend off the subpoena would threaten investigations of other individuals who could be charged, regardless of whatever legal protections a president may claim.

Vance’s office hs said it is investigating various matters relating to the Trump Organization, including how the business recorded hush money payments to two women who claimed sexual encounters with Trump, Stephanie Clifford, whose adult film name is Stormy Daniels, and Karen McDougal.

Cohen, Trump’s former attorney, has pleaded guilty in federal court to arranging those payments as part of an effort to get elected Trump to the presidency in 2016. Court documents filed by federal prosecutors in Manhattan alluded to Trump as a co-conspirator in that case, but he has not been charged. Justice Department policy bars charging a sitting president with a crime.

A three-judge panel of 2nd Circuit judges is scheduled to hear arguments on Trump’s appeal next week.

The dispute involving the Manhattan district attorney is one of at least four ongoing court cases involving efforts to obtain Trump’s financial records.

Last week, Trump lost the first of those cases to reach a federal appeals court. A panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 against his attempt to block a subpoena from the House Oversight and Reform Committee.

Trump’s attorneys have indicated they plan to go to the Supreme Court if lower courts don’t back his demands to quash the subpoenas.