Taking a broad position that the lawyers acknowledged had not been tested, the president’s legal team argued in the complaint that the Constitution effectively makes sitting presidents immune from all criminal inquiries until they leave the White House.
Presidents, they asserted, have such enormous responsibility and play a unique role in government that they cannot be subject to the burden of investigations, especially from local prosecutors who may use the criminal process for political gain.
Several constitutional law scholars interviewed by The New York Times said that if the lawyers’ position were accepted by the court, it would set a sweeping new precedent.
But they also said it was far from certain that the theory, which was not based on established case law, would succeed. While an onslaught of investigations would most assuredly disrupt a presidency, the Constitution does not explicitly say that presidents are shielded from criminal inquiries.
“President Trump’s position that he is unequivocally beyond the reach of criminal investigators is doubtfully absolutist,” said Joshua Matz, who wrote, with Laurence H. Tribe, “To End a Presidency: The Power of Impeachment.”
At the least, the lawsuit, which was filed in federal court in Manhattan, is likely to delay the latest attempt to secure Trump’s financial records.
The lawsuit was filed in response to a subpoena issued late last month by the Manhattan District Attorney’s Office to Trump’s accounting firm. The subpoena sought eight years of the president’s personal and corporate tax returns as the office investigates the role that Trump and his family business played in hush-money payments made in the run-up to the 2016 presidential election.
Both Trump and the company reimbursed Michael Cohen, the president’s former lawyer and fixer, for money that Cohen paid to buy the silence of Stormy Daniels, an adult film actress who said she had an affair with Trump. The president has denied the affair.
Federal prosecutors who charged Cohen said in a court filing in July that they had “effectively concluded” their investigation into possible crimes committed by the president’s company, the Trump Organization, or its executives. Neither the company nor any of its leaders were charged. However, the office of the Manhattan district attorney, Cyrus R. Vance Jr., is exploring whether the reimbursements violated any New York state laws.
The lawsuit filed Thursday was the latest effort by the president and his legal team to stymie multiple attempts to obtain copies of his tax returns, which Trump said during the 2016 campaign that he would make public but has since refused to disclose.
Trump’s lawyers have sued to block attempts by congressional Democrats and New York lawmakers to gain access to his tax returns and financial records. They also challenged a California law requiring presidential primary candidates to release their tax returns, and a federal judge ruled in their favor Thursday. But their arguments in those cases had been made on narrower grounds.
It is an open question whether sitting presidents are immune from prosecution while in office. The Constitution does not explicitly address the issue, and the Supreme Court has never answered the question.
Federal prosecutors are barred from charging a sitting president with a federal crime because the Justice Department — in memos written during the Nixon and Clinton administrations — has decided that presidents have temporary immunity while they are in office. The memos indicate that any wrongdoing should be addressed through impeachment, not the courts.
Those memos, however, do not bind the hands of state prosecutors.
“I think there is some force to the argument that states can’t be allowed to hobble presidents with local prosecutions, but there is certainly no authority for the claim that they cannot at least investigate while a president is in office,” said Frank O. Bowman III, a law professor at the University of Missouri and author of “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”
Presidents have been subject to federal criminal inquiries in the past, including Trump, who was recently a subject of an investigation conducted by Robert Mueller, the special counsel, that examined ties between the Trump campaign and Russia.
Mueller said in May that the Justice Department “explicitly permits” the investigation of presidents, although he acknowledged that they could not be charged with federal crimes.
In their lawsuit, Trump’s lawyers took their arguments a step further, saying that not only are criminal charges against a president unconstitutional, so are investigations. They took particular issue with any investigation conducted by “a county prosecutor,” such as the Manhattan district attorney.
“We are in court to protect the president’s rights and the Constitution,” said Marc L. Mukasey, a lawyer for the Trump Organization.
Vance, a Democrat, is seeking a range of tax documents from Trump’s accounting firm, Mazars USA, including federal and state tax returns for both the president and his company, dating to 2011.
In their lawsuit, the lawyers, who have repeatedly called Vance’s investigation politically motivated, wrote that prosecutors looking to advance their careers were particularly susceptible to opening investigations that could interfere with presidential duties.
“A county prosecutor in New York, for what appears to be the first time in our nation’s history, is attempting to do just that,” the complaint said.
The court papers described behind-the-scenes negotiations between the two sides. Trump’s lawyers said that they had been in negotiations with the district attorney’s office over an earlier subpoena issued to the Trump Organization. When Vance’s office asked for the company’s tax returns, Trump’s lawyers resisted. The prosecutors then sent a subpoena to the accounting firm, this time including the president’s personal returns as well.
The president’s legal team called the action a “bad faith effort to harass the president by obtaining and exposing his confidential financial information.” The lawyers are seeking an injunction preventing both Mazars and Vance from taking action on the subpoena until after Trump leaves office.
A spokesman for Vance said the district attorney would respond in court and had no additional comment. Mazars said it would “respect the legal process and fully comply with its legal obligations.”
Judge Victor Marrero of U.S. District Court in Manhattan will hear arguments in the case Wednesday. In a letter, Vance’s office said it had agreed to delay enforcement of its subpoena until then.
Vance’s investigation has been focused on $130,000 that Cohen paid Daniels, whose legal name is Stephanie Clifford, just before the election. Cohen pleaded guilty last year to violating federal campaign finance laws. He received a three-year prison sentence.
Vance’s office has been investigating whether the Trump Organization falsely accounted for the reimbursements as a legal expense. It was unclear if the scope of the subpoena — including Trump’s personal records — meant that the inquiry had widened.
In New York, filing a false business record can be a felony only if prosecutors can prove that the filing was made to commit or conceal another crime, such as tax violations or bank fraud. Trump’s tax returns, if Vance’s office obtains them, would be protected by rules governing grand jury secrecy and not become public unless they were used as evidence in a criminal case.
This article originally appeared in
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