Second Circuit appears skeptical of Trump’s assertion of absolute immunity from criminal process

The fight over access to President Donald Trump’s tax returns and financial records in the possession of his accounting firm, Mazars USA, will be fast-tracked to the Supreme Court in time for a decision in this term, under an agreement struck Monday between Trump’s attorneys and the Manhattan District Attorney in New York. Manhattan DA, Trump lawyers strike deal that could fast-track Trump taxes fight to SCOTUS:

Trump’s lawyers agreed that if they lose a court battle scheduled for argument at the New York-based 2nd Circuit Court of Appeals on Wednesday, they will take no more than 10 days to petition the Supreme Court to hear the case.

Trump’s legal team also agreed that — if Trump appeals to the high court — he will ask the justices to hear the case in its current term. Typically, the last cases of the term are argued in April and the final decisions come by the end of June.

In exchange for Trump’s agreement to keep the legal fight moving at a brisk pace, lawyers from Manhattan District Attorney Cyrus Vance Jr.’s office agreed to hold off trying to enforce a grand jury subpoena issued to one of Trump’s accounting firms in August [until the U.S. Supreme Court rules].

The justices are under no obligation to hear the case or to schedule it as the parties request. However, a request from a sitting president would likely get [expedited] attention from the high court [as did U.S. v. Nixon.]

A three judge panel of the Second Circuit heard the expedited appeal this morning from the well reasoned opinion of U.S. District Court Judge Victor Marrero. His 75-page ruling is here (pdf).

The key part of the District Court analysis addressed Trump’s extraordinary claim of absolute immunity not only for himself but for his business entities and associates, which is grounded on a broadly expansive view of the deeply flawed Office of Legal Counsel (OLC) memorandums that a sitting president cannot be indicted by the Department of Justice. Trump is effectively asserting that the president is above the law. (excerpts pp.44-50):

The President urges the Court to conclude that the powers vested in the President by Article II and the Supremacy Clause necessarily necessarily imply that the President cannot be “investigated, indicted or otherwise subjected to criminal process” while in office … and that “criminal process” encompasses investigations of third persons concerning matters that may relate to conduct or transactions of third persons, or of the President. [A]s the Court reads the proposition, the President’s definition of “criminal process” is all-encompassing; it would extend a blanket presidential and derivative immunity to all stages of federal and state criminal law enforcement proceedings and judicial process: investigations, grand jury proceedings, indictment, arrest, prosecution, trial, conviction, and punishment by incarceration and perhaps even by fine.

Judge Marrero then addressed the OLC memorandums on which Trump relies:

As authority for the absolute immunity doctrine he proclaims, the President points to and rests substantially upon two documents issues by the Justice Department’s Office of Legal Counsel (“OLC”). The first memorandum appeared in 2000. See Memorandum Opinion for the Attorney General, from Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, A Sitting Presdient’s Amenability to Indictment and Criminal Prosecution (Oct. 16 2000) (the “Moss Memo”). The Moss Memo in turn contains a review and an affirmation of an OLC Memorandum from 1973. See Memoradum from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: The Amenability of The President, Vice President And Other Civil Officers to Federal Criminal Prosecution While in Office (Sep. 24 1973) (the “Dixon Memo”). In addition, the President relies upon a 1973 brief filed by Solicitor General Robert Bork in the United States District Court for The District of Maryland in connection with a federal grand jury proceeding regarding misconduct of Vice President Spiro Agnew. See Memorandum for the United States Concerning The Vice President’s Claim of Constitutional Immunity (filed Oct. 5, 1973), In Re Proceedings of The Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of The United States, No. 73 Civ. 965 (D.Md. !973) (the “Bork Memo”). The Dixon, Moss and Bork Memos are here referred to collectively as the “DOJ Memos.” The gist of these documents is that a sitting president is categorically immune from criminal investigation, indictment and prosecution.

The Court is not persuaded that it should accord the weight and legal force the President ascribes to the DOJ Memos, or accept as controlling the far-reaching proposition for which they are cited in the context of the controversy at hand. As a point of departure, the Court notes that many statements of the principle that “a sitting president cannot be indicted or criminally prosecuted” typically cite to the DOJ Memos as sole authority for that proposition. Accordingly, the theory has gained a degree of certain axiomatic acceptance, and the DOJ Memos which propagate it have assumed substantial legal force as if their conclusion were inscribed on constitutional tablets so-etched by the Supreme Court. The Court considers such popular currency for the categorical concept and its legal support as not warranted.

Because the arguments the President advances are so substantially grounded on the supposed constitutional doctrine and rationale the DOJ Memos present, a close review of the DOJ Memos is called for. On such assessment, the Court rejects the DOJ Memos’ position.

* * *

The heavy reliance the President places on the DOJ Memos is misplaced for several reasons. First, though they contain an exhaustive and learned consideration of the constitutional questions presented here, the DOJ Memos do not constitute authoritative judicial interpretation of the Constitution concerning these issues. In fact, as the DOJ Memos themselves also concede, the precise presidential immunity questions this litigation raises have never been squarely presented or fully addressed by the Supreme Court. [Citations omitted.] Nevertheless … insofar as the Supreme Court has examined some of the relevant presidential privileges and immunities issues as applied in other contexts, the case lw does not support the President’s and the DOJ Memos’ absolute immunity argument to its full extremity and ramifications.

Second, the DOJ Memos address solely the amenability of the President to federal criminal process. Hence, because state law enforcement proceedings were not directly at issue in the matters that prompted the memos, as they are here, the DOJ Memos do not address the unique concerns implicated by a blanket assertion of presidential immunity from state criminal law enforcement and judicial proceedings … [summation: invoking issues of federalism and comity, and the balance of legitimate interests between state and federal authorities].

* * *

Third, the Memos’ analyses are flawed by ambiguities (if not outright conflicts) on an essential point: the scope of presidential immunity as presented in the DOJ Memos and asserted here by the President’s claim.

After a lengthy analysis of the deeply flawed legal reasoning of the DOJ Memos, Judge Marrero concludes (pp. 54-55):

The uncertainties and inconsistencies these various statements manifest about an essential question of constitutional interpretation suggest that the DOJ Memos’ position concerning presidential immunity from criminal law enforcement and judicial process cannot serve as compelling authority for the President’s claim if absolute immunity, at least insofar as that argument would extend to pre-indictment investigations and grand jury proceedings such as those at issue in this case.

Finally, the DOJ Memos lose persuasive force because their analysis and conclusions derive not from a real case presenting real facts, but instead from an unqualified abstract doctrine  conclusorily asserting a generalized principle, specifically the proposition that while in office the President is not subject to criminal process. Because the constitutional text and history on point are scant and inconclusive, the DOJ Memos construct a doctrinal foundation and structure to support a presidential immunity theory that substantially relies on suppositions, practicalities, and public policy, as well as on conjurings of remote prospects and hyberolic horrors about the consequences to the Presidency and the nation as a whole that would befall under any model of presidential immunity other than the categorical rule on which the DOJ Memos and the President’s claim ultimately rest.

Judge Marrero goes on at great length and sound legal analysis to reject the DOJ Memos’ flawed legal analysis and President Trump’s extraordinary claim of absolute immunity to prevent the enforcement of a grand jury subpoena to his accounting firm, Mazars USA.

This case may present much more than the narrow question of the court’s inherent authority to enforce a lawful subpoena.

This case potentially presents the big constitutional question regarding the scope of presidential immunity from criminal process left unanswered since the criminality of President Richard Nixon while in office. The District Court directly rejected the deeply flawed DOJ Memos that Special Counsel Robert Mueller was constrained by Attorney General William Barr to adhere to in the Russia investigation. The rejection of these DOJ Memos by the District Court if upheld by the Second Circuit and U.S. Supreme Court, and if it serves as the basis of the opinion, would require the DOJ to reassess the Mueller Report which detailed an obstruction of justice “road map,” and potentially would lead to a grand jury indicting the president.

So how did oral argument go this morning at the Second Circuit? The New York Times reports, Trump Taxes: Judges Seem Skeptical of Bid to Block Subpoena for Returns:

A federal appeals panel on Wednesday expressed skepticism that President Trump had a right to block state prosecutors in Manhattan from enforcing a subpoena that sought his personal and corporate tax returns for the last eight years.

The judges on a three-member panel in Manhattan peppered a lawyer for Mr. Trump with questions about why they should overturn a ruling this month by a lower court judge who rejected the president’s argument that he was immune from criminal investigation. That claim has not previously been tested in the courts.

Robert A. Katzmann, the appeals court’s chief judge, seemed to doubt Mr. Trump’s stance that he could not be investigated while he was in office.

“Why can’t we think about this case in a narrow sense?” Judge Katzmann asked.

The judge later added: “We don’t have to confront the question of whether the president is immune from indictment and prosecution while in office.”

He suggested that the judges need only determine that a president could be investigated.

A lawyer for Mr. Trump, William S. Consovoy, said the president’s immunity from criminal prosecution even extended to Mr. Trump’s famous claim that he could shoot someone on Fifth Avenue without losing political support.

Carey Dunne, the general counsel for the district attorney in Manhattan, introduced the Fifth Avenue argument in the hearing, asking, “Would local police be disabled from restraining such a person or from processing such a person?”

“Would we have to wait for an impeachment proceeding to be initiated?” he added.

Later, another of the judges, Denny Chin, posed the hypothetical to Mr. Consovoy. “Local authorities couldn’t investigate? They couldn’t do anything about it?” he asked. “Nothing could be done? That’s your position?

“That is correct. That is correct,” Mr. Consovoy said.

OK, William S. Consovoy needs to face a bar disciplinary action for asserting such an outlandish argument. This cannot go unpunished.

The panel did not immediately indicate when it would issue a ruling, but Judge Katzmann signaled that he and the other judges understood both the gravity of the matter and that they were unlikely to have the final word.

“This case seems bound for the Supreme Court,” Judge Katzmann said early in the arguments, adding later, as the hearing wrapped up, “We have the feeling you may be seeing each other again in Washington.”

* * *

The Justice Department also weighed in, telling the appeals panel that the case raised “significant constitutional issues.”

The government is not a party to the case, but has the right to provide its views.

The Justice Department, led by William P. Barr, asked that the court stop the release of Mr. Trump’s tax returns and reiterated its longstanding position that a sitting president may not be charged or prosecuted.

But the department appeared to leave open the door for Mr. Trump to be investigated by Mr. Vance’s office.

The department argued that a local prosecutor had to meet a high legal bar before investigating a sitting president, and that Mr. Vance should not be able to obtain the president’s personal records “unless and until — at a minimum — the district attorney is able to make the required showing of particularized need.”

The department said the district attorney would have to show that the records it was seeking from Mr. Trump were central to the grand jury investigation, were not available elsewhere and were needed immediately, as opposed to after Mr. Trump leaves office.

Mr. Vance’s office, citing Mr. Trump’s arguments in the case, told the appeals court in a brief that Mr. Trump’s “core position on every one of these matters is that the United States presidency places him beyond the reach of the law.”

UPDATE: Link to oral argument. Trump v. Vance Oral Argument (Audio Only).

I find it difficult to believe that even the conservative majority of the Roberts court would accept this absolutist position. There is no historical or constitutional text to support it, nor any court precedents to support it. To accept Trump’s position is to declare that the president is now an autocratic despot. Chief Justice John Roberts does not want this to be his legacy.