“He’s trying to run out the clock, there’s no question,” Rep. Bill Pascrell, D-N.J., told NBC News of Trump’s legal arguments.
The effort to obtain President Donald Trump’s tax returns is heating up as the president and his administration battle coast to coast to prevent them from falling into hostile hands and potentially being made public.
In New York, the president seeks to prevent Manhattan District Attorney Cyrus Vance from obtaining his tax information as part of an investigation into the pre-election payoffs to women who alleged affairs with Trump. In Washington, D.C., the president is trying to prevent the House Oversight Committee from obtaining his financial records while also seeking to block the House Ways and Means Committee from utilizing a new New York law designed to give the panel access to Trump’s state tax returns should the Treasury Department refuse to turn them over (another battle that is playing out in court.)
And in California, he’s battling a new state law aimed at having him make public the returns in order to appear on a primary ballot. Those cases don’t include the various Emoluments Clause-related suits currently going through the federal system, which could lead to the president’s returns being disclosed through discovery.
Trump’s employing a wide range of legal arguments to prevent his returns from being disclosed. Among them is the argument that authorities can’t investigate a sitting president for anything — even if he shoots someone in the middle of 5th Avenue in New York City, and that immunity provides blanket cover for his business, his family members and his business associates. Then, there is the argument that Congress can’t investigate a sitting president unless it has a legitimate legislative purpose — even then, if that probe is not part of an impeachment, it is not legitimate.
And should a state force Trump to release his taxes in order to appear on a primary ballot, or provide Congress with his state returns, they would be violating his First Amendment rights. Additionally, providing the returns would be an undue burden on the president, significantly hampering his ability to do his job, he’s argued.
“Underlying the president’s defense in most of the information-seeking cases is an argument that a president is immune from being investigated while in office,” Walter Dellinger, a Duke University law professor who served as acting solicitor general under former President Bill Clinton, told NBC News. “That argument permeates most of the cases as a linchpin. I expect that argument to be thoroughly rejected by the courts, including by justices appointed by President Trump.”
A number of these cases have ramped up just as the House’s impeachment inquiry picks up speed. After a district court ruled against Trump in his battle with Vance, the case was fast-tracked to an appellate court and could soon hit the Supreme Court. The case involving the Treasury Department and the House Ways and Means Committee is slated for oral arguments next week. And, earlier this month, a federal court ruled the president’s accounting firm must provide his financial documents to the House Oversight Committee. Around the same time, a federal judge in California gave Trump a win when they temporarily blocked that new Golden State law. Those rulings were appealed.
“I literally don’t understand the argument that because you’re president you get immunity, not only from prosecution for a criminal offense but from any kind of legal process at all, whether it’s civil or criminal, whether it’s state courts, federal courts, or most relevantly the Congress of the United States,” Sanford Levinson, a University of Texas law professor, told NBC News. “To put it mildly, I think it’s an audacious claim.”
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The case which has seen the most recent action involves the Manhattan district attorney, who, like the House Oversight Committee, is seeking to have the president’s accounting firm provide his financial documents. Manhattan prosecutors want to evaluate the Trump Organization’s role in the payouts to the two women, as well as the reimbursements made to Trump’s former longtime attorney Michael Cohen, who is now serving a three-year federal prison sentence for a litany of crimes, including campaign finance violations.
Earlier this month, U.S. District Court Judge Victor Marrero ruled against Trump, calling his claim to immunity from investigation “unqualified and boundless,” writing that the argument was “repugnant to the nation’s governmental structure and constitutional values.”
Trump appealed the ruling, which was heard on a fast track by the U.S. 2nd Circuit Court of Appeals last week, when a federal judge, Denny Chin, asked Trump attorney William Consovoy if local authorities could investigate Trump for shooting someone in the middle of Manhattan while he’s in office. “No,” Consovoy said.
Trump on Thursday announced he had changed his permanent residence from New York City to Palm Beach, Florida. New York Gov. Andrew Cuomo, a Democrat, speculated that Trump’s decision was a “legal tactic” to help him in the tax case.
“My guess is he was advised by his lawyers it that would help his case not to release his taxes to the Manhattan district attorney if he could say he was no longer a resident of the state of New York. I don’t believe it’s going to be dispositive, but I can see it is a legal tactic and the timing is coincidental,” Cuomo told MSNBC’s “Velshi & Ruhle.”
The Constitution does not provide explicit guidance on whether a president can be charged with a crime while in office, though a Nixon-era Justice Department Office of Legal Counsel memo that has proven influential in past investigations involving Trump states a president cannot be charged while in office. That memo does not explicitly cover the act of investigating a sitting president. And Vance, who is a state official, is not bound by that guidance.
In Washington, a case between the Treasury Department and the House Ways and Means Committee is set to take off after the IRS earlier this year refused to provide Trump’s tax records when subpoenaed by the panel, which utilized a law stating the Treasury “shall” turn documents over when requested by a chairman of one of three tax committees. House Ways and Means Chairman Richard Neal, D-Mass., requested the returns to review the presidential tax auditing process, though Trump’s attorneys have argued that the request “lacks a legitimate legislative purpose” and is just a pretext to obtain the returns for political benefit.
At the same time, Trump is seeking to stop Neal from utilizing a New York law that would provide Trump’s state tax returns in light of stonewalling from the Treasury. Neal has not made a formal request through that law, which Trump argues was enacted to retaliate against him.
Trump’s attorneys did not respond to requests for comment from NBC News. But Republican members of the House Ways and Means panel decried the Democratic-led legal effort.
“Let’s be clear about this: House Democrats have been waging an impeachment war against President Trump since the day he was elected, and their first tactic was to pressure him to release his tax returns so they could cherry-pick elements to attack him politically,” Rep. Mike Kelly, R-Pa., told NBC News in a statement regarding his committee’s lawsuit, calling it “a fishing expedition bordering on abuse of power.”
While it is traditional for presidential candidates to release his or her tax returns, it is not required by law. Though he said he would release the information ahead of the 2016 election, Trump became the first major-party nominee in four decades to withhold his returns from the public, and he has repeatedly cited ongoing audits — which take place annually as president — as rationale for continuing to withhold his records. Last week, when discussing how he would not hold the 2020 Group of Seven summit at his Miami golf resort, Trump said he would release his “financials” at “the right time.”
Asked why Trump hasn’t simply made the returns public like his predecessors, Rep. Tom Reed, R-N.Y., told NBC News, “Well, obviously, he’s made his decision, and that’s the decision that he has made.”
“I understand the decision, I really do because if you start forcing disclosure of tax returns, you really bring into the domain the privacy rights not only of the individual who’s running for office, but their spouses, their children, their business partners, their business relationships with individuals and companies and partnerships” who had no expectation of being in the public domain, Reed added.
“He’s trying to run out the clock, there’s no question,” Rep. Bill Pascrell, D-N.J., said of Trump’s legal arguments.
But Trump may not be able to do so forever. Among the reasons he believes the Supreme Court will not endorse Trump’s arguments, Levinson said “a very, very important part of our operative rhetoric [is] that no person’s above the law.”
“And if you’re a realist, you can point out that all sorts of persons are above the law if they have enough money or enough prestige or whatever,” Levinson said. “But we can’t admit that in public.”