Trump files suit to block Manhattan DA’s office subpoena for Trump Organization tax records (Updated)

Earlier this week, the Manhattan district attorney subpoenas Trump’s tax returns in probe of hush money payments:

Prosecutors in New York have subpoenaed President Donald Trump’s accounting firm for eight years of his personal and corporate tax returns, multiple news outlets reported Monday.

The subpoena, first reported by the New York Times, was issued by the Manhattan District Attorney’s Office headed by Cy Vance late last month. It reportedly stems from Vance’s criminal investigation into the Trump Organization’s handling of hush money payments made to two women who alleged extramarital affairs with Trump in the lead up to the 2016 presidential election. Trump has denied having affairs with both women.

The subpoena was reportedly served to Mazars USA, an accounting firm used by the president. State prosecutors are reportedly seeking federal and state returns for the president and the Trump Organization dating back to 2011.

Vance’s investigation has been focused on $130,000 that Trump’s former attorney and personal “fixer,” Michael Cohen, admitted to paying adult film star Stormy Daniels just before the election. Cohen is currently serving a three-year prison sentence after pleading guilty last year to multiple crimes, including breaking federal campaign finance laws related to the hush money payments.

The state investigation, launched last month, began after federal prosecutors who charged Cohen closed their own inquiry into possible crimes committed by the Trump Organization or its executives [after having identified Donald Trump in a sentencing memo as “Individual 1.” In particular, and as Cohen himself testified, with respect to both payments, he “acted in coordination with and at the direction of Individual 1.” Federal prosecutors deemed Trump an active participant in the conspiracy, yet failed to file any charges or indict. Did William “Coverup”Barr order the investigation closed?] Vance’s office is investigating whether the Trump Organization violated a New York state law in handling its records about the payments.

In particular, state prosecutors are probing whether the Trump Organization falsified its records in describing reimbursements to Cohen for the payments as a legal expense.

In addition to the Trump Organization, Vance’s office also reportedly subpoenaed American Media Inc., the publisher of the National Enquirer, which signed a non-prosecution agreement with federal prosecutors regarding its role in the hush money scheme.

AMI admitted to making a payment of $150,000 to former Playboy model Karen McDougal in concert with Trump’s campaign in order to prevent her allegations of an affair from becoming public.

As part of its investigation, state prosecutors from Vance’s office reportedly visited Michael Cohen in prison in Otisville, N.Y., to seek assistance with their own investigation.

Michael Cohen has signed a proffer agreement with the Manhattan district attorney’s office as part of a new investigation into President Donald Trump’s business, according to a report from CNBC.

CNN similarly reported that Cohen has been speaking with the New York prosecutor’s office run by Cy Vance as it explores potential wrongdoing in the Trump Organization regarding falsified business records.

Remember when our third-rate mafia “Don” Trump whined about flippers like his former consigliere and “fixer” Michael Cohen?

“It’s called flipping and it almost ought to be illegal,” Trump said in the interview, adding he’s witnessed similar scenarios over his decades in public life. “I know all about flipping, 30, 40 years I have been watching flippers. Everything is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is or as high as you can go.”

“Mikey rats on me he’s going to be swimming with the fishes, capiche?”

The probe is the latest sign of the potential legal issues hanging over Trump, his businesses, his family and his associates. House Democrats are suing to obtain the tax and bank records of Trump and his family members. New York Attorney General Letitia James has also subpoenaed Deutsche Bank and Investors Bank for records related to the financing of four major Trump Organization projects and a failed effort to buy the NFL’s Buffalo Bills.

On Thursday, the new consigliere’s for mafia “Don” Trump filed a lawsuit against Manhattan District Attorney Cyrus Vance Jr. and his longtime accounting firm Mazars USA to try to squash the subpoenas. Trump sues Manhattan District Attorney Cyrus Vance Jr. and accounting firm Mazars over attempt to get tax returns:

“In response to the subpoenas issued by the New York County District Attorney, we have filed a lawsuit this morning in Federal Court on behalf of the President in order to address the significant constitutional issues at stake in this case,” Trump’s attorney Jay Sekulow said in a statement Thursday morning.

The suit marks the latest attempt by Trump to take legal action against prosecutors and lawmakers who have attempted to acquire tax documents that Trump has avoided publicly disclosing since his presidential campaign. Modern presidential candidates have shared years of their tax returns with the public while on the campaign trail.

Trump, the head of a global real estate empire, had promised to release his returns after the completion of an audit — even though an audit was never an obstacle to disclosure. Trump never disclosed those tax returns during the 2016 election, or after, and has fought against attempts by House Committees and state agencies to force their release.

A copy of the legal complaint in the new case, filed in U.S. District Court in Manhattan, was not immediately available. William Consovoy, a lawyer in Virginia, had filed a motion Thursday morning, asking to represent Trump in New York federal court. He did not immediately provide a comment to CNBC.

In addition to Vance and Mazars, the lawsuit names as a defendant Solomon Shinerock, the prosecutor who is chief of the Major Economic Crimes Bureau in the DA’s office.

Marc Mukasey, a lawyer for the Trump Organization, had no immediate comment. Vance’s office also did not immediately provide a comment.

At some point prosecutors are going to have to add charges under the RICO statutes to take down this criminal enterprise known as the Trump Organization.

UPDATE: The complaint filed by Trump’s lawyers suggests the Manhattan DA’s subpoena is unconstitutional since a sitting President cannot be criminally investigated. No, really. The court documents can be found here. The New York Times reports, Trump Lawyers Argue He Cannot Be Criminally Investigated:

Lawyers for President Trump argued in a lawsuit filed on Thursday that he could not be criminally investigated while in office, as they sought to block a subpoena from state prosecutors in Manhattan demanding eight years of his tax returns.

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.”

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 only 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.

But those Justice Department memos “explicitly permit” the criminal investigation of presidents, although they cannot be charged with federal crimes while in office.

Those Justice Department memos also do not bind the hands of state prosecutors.

Harvard law professor Laurence Tribe took apart this absolutist argument in this case and the whistleblower scandal in an interview with Lawrence O’Donnell. ‘It’s treachery if not treason’: Harvard’s Laurence Tribe destroys Trump’s claim he’s above the law (additional transcript):

Lawrence O’Donnell played a notorious clip of Trump.

“I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters. Okay? It’s like incredible,” Trump argued.

“And now he has gone beyond that,” O’Donnell noted. “Now the president is sayin, ‘I could stand in the middle of Fifth Avenue and shoot someone and I cannot be prosecuted for that crime. Or any crime.’”

“In New York City today the president’s lawyers sued Manhattan District Attorney Cyrus Vance,” O’Donnell explained. “And in filing the lawsuit, the president’s lawyers told the court ‘the president thus cannot be subject to criminal process for any conduct of any kind while he is serving as president.’ So according to the president’s lawyers, Donald Trump could commit murder — he could commit murder on Fifth Avenue with the whole world watching on TV and there is nothing law enforcement could do about that as long as Donald Trump is president.”

For analysis, O’Donnell interviewed Tribe, who has taught at Harvard Law School for fifty years and argued three-dozen cases before the United States Supreme Court.

“Can the president shoot someone on Fifth Avenue and the Manhattan district attorney simply has to look the other way?” O’Donnell asked.

“The answer is no,” Tribe replied. “We don’t have a constitution, thank goodness, in which the president is that much above the law.”

“But in fact, the position that his lawyers were taking today in the federal court filing is even more extreme than that. They have taken the position that the president’s company cannot be investigated, that those who may have conspired with him to commit financial and other crimes cannot be investigated, that the whole state proceeding must be stopped in its tracks,” he continued.

Among other things, there is federal law going all the way back to the founding actually, all the way to 1793, it’s called the Anti-Injunction Act, and it says that no federal court can interfere with an ongoing state proceeding. So that when the judge finally has to rule on this outlandish claim — that you cannot investigate criminality on the part of the president, his companies and his cronies — the judge will have the obligation under the Anti-Injunction Act, 28 U.S.C. Sec. 2283, to dismiss the case. Because it is not permissible for a federal court — this is is principal of basically states rights, believe it or not — it’s not permissible for  federal court to mess around with an ongoing state criminal proceeding. It’s as simple as that.

They’re trying to say that state courts have to be kicked out of the picture because the president is a federal official, but that doesn’t immunize him from state process, it doesn’t immunize him from state proceedings. There are only very limited exceptions to this Anti-Injunction Act.

But the most important point is that they have taken this outlandish position that the president and all those around him are above the law. They can’t be investigated for any crime, no matter how serious, until the president is out of office.

Tribe said Trump was “basically inviting the country to kick him out of office so he can be held accountable to the law.”

“That’s very kind of him, but I doubt that’s his intention,” he quipped.

“And it’s clear that his position now is ‘Nobody can do anything to me, they can’t touch me. I have Article Two on my side. You can do what I want. Congress can’t touch me, they can’t ask questions of anyone who has ever worked with me or anyone whose had anything to do with me, state courts can’t investigate me, the federal government can’t indict me and, you know, Nancy Pelosi doesn’t want to impeach me, so I’m home free and I can get away with murder.’ That can’t be the law in the United States,” Tribe said.

“That’s not why we fought a revolution against a king just in order to get a tyrant. It’s astonishing and hopefully, this will finally wake people up and realize this guy has got to go,” he said.

“It’s treachery if not treason and it’s bribery and it’s unacceptable,” Tribe added.