7 October 2019, US District Court, Southern District NY: Trump v. NY DA Vance, Mazars USA (Decision and Order) (PDF)
https://www.nytimes.com/2019/10/07/nyregion/trump-taxes-lawsuit-vance.html
Oct. 7, 2019
Trump Taxes: President Ordered to Turn Over Returns to Manhattan D.A.
A judge rejected the president's argument that he was immune from criminal investigations.
By William K. Rashbaum and Benjamin Weiser
A federal judge on Monday rejected President Trump's effort to shield his tax returns from Manhattan state prosecutors, [1] calling the president's argument that he was immune from criminal investigation "repugnant to the nation's governmental structure and constitutional values."
The decision from Judge Victor Marrero of Federal District Court in Manhattan was the first significant ruling in a case that could require Mr. Trump to hand over his tax returns and ultimately test the limits of presidential power.
The judge dismissed a lawsuit that had been filed by Mr. Trump, who was seeking to block a subpoena for eight years of his personal and corporate tax returns. The Manhattan district attorney demanded the records in late August as part of an investigation into hush-money payments made in the run-up to the 2016 presidential election.
Mr. Trump's tax returns, however, remain protected for now. His lawyers quickly appealed to the Second Circuit Court of Appeals in Manhattan, which agreed to temporarily delay enforcement of the subpoena while it considers arguments in the case.
In a 75-page ruling that included detailed constitutional analysis and cited Supreme Court precedents, Judge Marrero systematically dismantled the president's arguments that investigating a sitting president was unconstitutional. The judge said Mr. Trump's lawyers were, in essence, arguing that the president, along with his family, associates and companies, were above the law.
"This court finds aspects of such a doctrine repugnant to the nation's governmental structure and constitutional values," wrote the judge, who was appointed to the bench in 1999 by President Bill Clinton.
The dispute has pitted the Manhattan district attorney, Cyrus R. Vance Jr., against the president and his Justice Department and has raised a host of issues that have not been tested in the courts. The Constitution does not explicitly say [2] whether presidents can be charged with a crime while in office, and the Supreme Court has not ruled on the issue.
Walter Dellinger, who served as acting United States solicitor general in the Clinton administration, said Judge Marrero's opinion was "an emphatic rejection of the imperial presidency claim that a president cannot even be investigated."
The judge's decision came a little more than a month after Mr. Vance subpoenaed Mr. Trump's accounting firm, [3] Mazars USA, for his personal and corporate tax returns dating to 2011.
Mr. Vance's office has been investigating whether any New York State laws were broken when Mr. Trump and his company, the Trump Organization, reimbursed the president's former lawyer and fixer, Michael D. Cohen, for payments he made to the pornographic film actress Stormy Daniels, [4] who had said she had an affair with Mr. Trump. Mr. Trump has denied the affair.
Mr. Trump's lawyers sued last month to block the subpoena. The lawyers acknowledged that their constitutional argument had not been tested, but said presidents have such enormous responsibility and a unique position in government that they cannot be burdened with investigations, especially by local prosecutors who might be politically motivated.
"This case presents momentous questions of first impression regarding the presidency, federalism and the separation of powers," a lawyer for the president, Patrick Strawbridge, wrote to the appeals court on Monday. He said the losing party should be given time to appeal to the Supreme Court.
The case also has drawn in Mr. Trump's own Justice Department, [5] which has not taken a position on the president's argument but supported his request to delay enforcement of the subpoena because of the "significant constitutional issues."
A lawyer for the president and a spokesman for Mr. Vance both declined to comment on Monday, as did a spokeswoman for the Justice Department.
The decision was a victory for Mr. Vance, whose office had asked Judge Marrero to dismiss Mr. Trump's suit, accusing the president and his team of trying to drag out the investigation until the statute of limitations runs out on any possible crime.
Mr. Trump's lawyers have called the investigation by Mr. Vance, a Democrat, politically motivated.
Longstanding policy from the Justice Department bars federal prosecutors from charging a sitting president with a crime. Department lawyers have concluded that presidents have temporary immunity while they are in office.
But in the past, that position has not precluded investigating a president. Mr. Trump and other presidents have been the subjects of federal criminal investigations while in office. Local prosecutors, such as Mr. Vance, are also not bound by the Justice Department's policy.
Mr. Trump's arguments went a step further, starting with a central claim that the Constitution gave him sweeping immunity not just from indictment and prosecution, but also from any investigation by federal or state authorities.
In his opinion, Judge Marrero pointedly noted that in throwing off the yoke of the British crown, the country's founders had dismissed the notion of broad immunity.
"Shunning the concept of the inviolability of the person of the King of England and the bounds of the monarch's protective screen," the judge wrote, "the founders disclaimed any notion that the Constitution generally conferred similarly all-encompassing immunity upon the president."
Judge Marrero also dispatched Mr. Trump's other claims, including that the district attorney had no authority to subpoena his tax returns or had acted in bad faith, and that being forced to turn over the returns would cause Mr. Trump "irreparable harm."
The judge rejected the conclusions of three Justice Department memos dating back to as early as 1973 that he said have long been cited as supporting the interpretation that a sitting president cannot be charged with a crime.
He said the memos rely on "suppositions, practicalities and public policy" as well as dire pictures of hypothetical scenarios -- and not on an actual case.
Late Monday, the appeals court said that it would hear arguments in the case later this month and that enforcement of the subpoena would be delayed at least until then.
If Mr. Vance ultimately prevails in obtaining the president's tax returns, they would not automatically become public. The documents would be protected by rules governing the secrecy of grand jury investigations unless the documents became evidence in a criminal case.
The president and his lawyers have fought vigorously in other venues to shield his tax returns, which Mr. Trump said during the 2016 campaign that he would make public but has since refused to disclose.
Mr. Trump's lawyers have sued to stop attempts by congressional Democrats to gain access to his tax returns and financial records and to block a New York State law that would share state tax returns with congressional committees. They also successfully challenged a California law [6] requiring presidential primary candidates to release their tax returns.
Mr. Vance's office has been investigating whether the Trump Organization falsely accounted for the reimbursements to Mr. Cohen as a legal expense. In New York, filing a false business record can be a crime.
But it becomes a felony only if prosecutors can prove that the false filing was made to commit or conceal another crime, such as bank fraud or tax violations. It was unclear why the office has attempted to obtain Mr. Trump's personal financial records as part of that inquiry.
Mr. Trump's accounting firm, Mazars, which he sued along with the district attorney's office to bar the company from turning over his returns, reiterated an earlier statement that it would comply with its legal obligations.
[1] https://www.nytimes.com/2019/09/19/nyregion/trump-tax-returns-lawsuit.html
[3] https://www.nytimes.com/2019/09/16/nyregion/trump-tax-returns-cy-vance.html
[4] https://www.nytimes.com/2018/08/21/nyregion/michael-cohen-plea-deal-trump.html
[5] https://www.nytimes.com/2019/10/02/nyregion/trump-taxes-lawsuit.html
[6] https://www.nytimes.com/2019/08/06/us/politics/california-trump-tax-returns.html