President Donald Trump’s lawyers continued their fight to keep the president’s tax returns out of the hands of a New York grand jury Monday, filing an appeal shortly after a federal judge dismissed Trump’s case seeking to block the subpoena for his returns. The 2nd US Circuit Court of Appeals issued a temporary stay of the subpoena within hours.
U.S. District Judge Victor Marrero declared Monday morning that Trump could not invoke presidential immunity from all criminal investigations, writing in his 75-page ruling that “the expansive notion of constitutional immunity invoked here to shield the President from judicial process would constitute an overreach of executive power.”
Manhattan District Attorney Cyrus Vance Jr. sent a subpoena to Trump’s longtime accountants, Mazars USA, in late August, seeking eight years of the president’s tax returns. The subpoena was served in relation to Vance’s investigation of hush payments Trump’s former lawyer, Michael Cohen, arranged for Stormy Daniels and Karen McDougal—two women who claimed to have had affairs with Trump.
While federal prosecutors closed their investigation into the matter in July, Vance opened a probe to see if these payments—or the Trump Organization’s reimbursements to Cohen—broke any state laws. Trump’s lawyers sued to block the subpoena, setting off the ongoing legal battle.
According to defense attorney Jeffrey Chabrowe, the lawsuit and appeal is “just a delay tactic” to hide the president’s tax returns. While Trump himself is not the main target of Vance’s case, his lawyers argued a forced release of his tax returns would cause Trump “irreparable harm.”
More striking, they argued the presidential office protects him from all criminal proceedings. This move led the Justice Department to weigh in on the matter last week, filing in favor of a delay to allow it to consider the “significant constitutional issues” raised by Trump’s lawyers, the New York Times reports.
Other than this opinion, the Justice Department is not involved in the investigation.
Chabrowe, formerly a prosecutor at the Manhattan district attorney’s office, said the DOJ should be playing an advisory role, “except that they are completely and utterly compromised, corrupt and under Trump’s thumb.”
“The situation is completely without precedent,” he told Fortune. “I would think that Vance will do whatever that he can to tell them, ‘I’m not listening to you.'”
Judge Marrero acknowledged submitting the president to “some aspects of criminal proceedings” could impede Trump’s ability to fulfill the duties of his office, but argued that this consequence “would not necessarily follow every stage of every criminal proceeding.”
In this case, for example, the investigation is targeting the actions of a third party, and while the conduct may or may not have included the president, “this phase of the proceedings demand review of records the President possesses or controls,” wrote Marrero.
Trump’s accounting firm, Mazars USA, said in a statement that the company “will respect the legal process and fully comply with its legal obligations.”
Even if the New York DA was permitted to carry out his subpoena, however, it’s unlikely Trump’s tax returns would be made public. The documents would be protected under grand jury secrecy rules, meaning they’d be sealed unless used as evidence in a trial.
Trump has long sought to keep his tax returns from the public eye, breaking presidential tradition by refusing to release them. In addition to the New York district attorney’s subpoena, he faces challenges from House Democrats on the House Ways and Means Committee.
The president claims these efforts are politically motivated, tweeting Monday that the “Radical Left Democrats” are “pushing local New York City and State Democrat prosecutors to go get President Trump.”
Vance’s office has reportedly accused Trump of trying to create a “new presidential ‘tax return’ privilege,” arguing that the president did not try to block prior criminal investigations in court, but is only doing so now because this case involves his tax returns.
Following Monday’s appeal and stay order, the DA’s office sent a request for an expedited briefing to the appeals court, requesting oral arguments be scheduled for this Friday.
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