Trump tax returns fight: Lawyers say he has absolute immunity from criminal investigations

Kevin McCoy, USA TODAY
Trump tax returns fight: Lawyers say he has absolute immunity from criminal investigations

NEW YORK — Lawyers for President Donald Trump on Friday stepped up their fight to shield his tax returns from a New York prosecutor, arguing that a sitting president has "absolute immunity" from criminal investigations.

Citing the U.S. Constitution's text, history, structure, and legal precedents, the attorneys argued that any alleged wrongdoing by sitting presidents may only be addressed through the federal impeachment process.

They urged the New York-based U.S. Court of Appeals for the Second Circuit to block Manhattan District Attorney Cyrus Vance's investigation of Trump's financial records and overturn a lower court decision on Monday that rejected presidential challenges and ruled that Vance could proceed.

The attorneys also argued that the case should continue in federal court, not in the New York state court system, as Vance's office has sought.

"The Framers recognized the need for a strong Chief Executive and created a process for investigating and removing him (in) a manner that would embody the will of the people. A lone county prosecutor cannot circumvent this arrangement," wrote Trump lawyer William Consovoy.

President Donald Trump

"That the Constitution empowers thousands of state and local prosecutors to embroil the President in criminal proceedings is unimaginable," he added.

U.S. Department of Justice lawyers largely agreed in a separate legal brief also filed Friday in support of Trump's position. They argued that state criminal investigations could interfere with presidents' handling of their "constitutionally mandated powers and duties." However, the brief tdid not argue that sitting presidents have absolute immunity from criminal investigations.

Raising broad constitutional issues, the case represents the first legal test of whether sitting presidents may ever be targeted by criminal investigations through the court process. Before it's all over, the case is likely to be decided by the U.S. Supreme Court.

The battle also poses high personal and political stakes for Trump, who is battling on multiple fronts to keep his tax returns and financial records private. Hours before Friday's filing, a federal appeals court in Washington, D.C., ruled that Trump's accounting firm must provide eight years of his financial records that were subpoenaed by a House oversight committee. 

In this May 10, 2018, file photo, Manhattan District Attorney Cyrus R. Vance, Jr., responds to a question during a news conference in New York. AP, Frank Franklin II, File)

The New York case has been fast-tracked because of its legal significance. It was just four days ago that U.S. District Judge Victor Marrero ruled that Trump could not shield his tax returns from Vance's investigation.

Marerro's 75-page ruling rejected what he called Trump's "extraordinary claim" that "the person who serves as president, while in office, enjoys absolute immunity from criminal process of any kind."

That, wrote Marrero, would represent "virtually limitless" protection from criminal investigations – not only for sitting presidents but for associates who might have collaborated in illegal actions.

"Because this court finds aspects of such a doctrine repugnant to the nation's governmental structure and constitutional values," Marrero didn't resolve that question and dismissed Trump's lawsuit.

Trump's lawyers filed an emergency order asking the appeals court to review the ruling. The court agreed and prevented Vance from getting the documents until the dispute is resolved.

In Friday's filing, Trump's lawyers asked the appeals court to keep the stay in place after a decision, pending an expected Supreme Court review. Lawyers for Vance are scheduled to file a reply brief to the court on Tuesday.

DA is looking into payments to two women who alleged affairs with Trump

The battle stems from Vance's Aug. 1 grand jury subpoena to the Trump Organization seeking records and communications relating to payments to two women, and how the transactions may have been reflected in the company's records.

The women are adult film star Stephanie Clifford, whose stage name is Stormy Daniels, and former Playboy magazine model Karen McDougal. Both women claimed to have had sexual affairs with Trump, who has issued denials.

Hush money transactions: Michael Cohen's plea deal exposes President Trump to legal, political trouble

Michael Cohen, Trump's former personal lawyer, paid $130,000 to Daniels to buy her silence about her alleged affair with Trump. The payment was made shortly before the 2016 presidential election. 

Cohen subsequently pleaded guilty to tax evasion, bank fraud and violations of campaign finance law in connection with the payment to Daniels.

The owner of the National Enquirer acknowledged that it paid McDougal $150,000 to squelch her account and avoid damage to Trump's presidential campaign. In December, federal prosecutors in New York disclosed that the intent of the August 2016 payment "was to suppress the model's story so as to prevent it from influencing the election."

Trump's company initially cooperated with Vance's investigation. On Sept. 4, however, the company raised concerns that providing Trump's tax records "implicated constitutional issues," Manhattan Assistant District Attorney Solomon Shinerock wrote in a court filing.

Vance's office also subpoenaed Mazars USA LLP, Trump's longtime accounting firm, seeking eight years of his returns. Mazars did not raise any objections to the subpoena, Shinerock wrote.

After talks between Vance's office and Trump's attorneys broke down, Trump sued Vance and Mazars in an effort to block them from handing over his returns.

Trump's lawyers argue that presidents must be protected from politically-motivated investigations. In Friday's brief, they specifically accused Vance's office of "bad-faith harassment."

"The district attorney's subpoena to Mazars cobbled together, virtually word-for-word, two congressional subpoenas — even though New York has no jurisdiction to investigate the federal issues those subpoenas purport to explore," wrote Consovoy.

Vance has said his office used that procedure for efficiency. 

This article originally appeared on USA TODAY: Trump lawyers: Presidents have immunity from criminal probes