Federal Judge Eviscerates Trump’s Challenge to Tax Return Subpoena

In a strongly worded ruling last week,  Federal District Judge Victor Marrero rejected Donald Trump’s attempt to protect his tax returns from a grand jury subpoena. Trump sought a preliminary injunction to block the state subpoena for the returns held by his accounting firm, Mazars.

The October 7, 2019 ruling in Trump v. Vance et al. eviscerated Trump’s lawyers’ arguments, which amounted to a claim that “the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind” including “investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial, conviction, and incarceration…” and that this doctrine would extend to any affiliate of the president who may have collaborated with him (Decision 2-3).

Judge Marrero, of Southern District of New York, rejected that reasoning, particularly in regard to the issue at bar, i.e., the president’s compliance with a grand jury subpoena issued in the course of a state prosecutor’s criminal investigation (id. 5). The court reviewed constitutional history on the issue dating back to the founding of the Republic. In Judge Marrero’s words, “the only thing truly absolute about presidential immunity from criminal process is the Constitution’s silence about the existence and contours of such an exemption, a void the President seeks to fill by the expansive theory he proffers… such a doctrine [is] repugnant to the nation’s governmental structure and constitutional values.” (id. 6-8).

Specifically, the Court grounded its opinion in the doctrine laid out by the Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). According to Younger, federal courts may not interfere in the business of state courts unless there are good reasons to do so. Here, the Court found no such reason—since the matter expressly concerned a state’s interest – the enforcement of its criminal laws—as opposed to a federal interest, and since New York State affords Trump adequate opportunity to appeal any decision issued by the state court (id. 10-27). The Court also rejected the argument that the New York District Attorney had acted in bad faith (id. 27-31), or that extraordinary circumstances allowed an exception to Younger (id. 32-35).

The Court discussed presidential immunity at length (id. 35-65), confirming that presidential immunity does not prevent a district attorney from subpoenaing records of the president from third parties such as his accountants. In doing so, Judge Marrero commented on the now-infamous Department of Justice memoranda according to which a sitting President is categorically immune from criminal investigation, indictment, and prosecution, and rejected their assertions for several reasons:

  • First, the memos are not statute or precedent law,
  • Second, “the case law does not support the President’s and the DOJ Memos’ absolute immunity argument…”,
  • Third, the DOJ memos only address federal criminal processes, and
  • Fourth, the memos are ambiguous and internally inconsistent.

The Court also reviewed constitutional and Supreme Court history on the topic of presidential immunity (id. 65-73) and found no grounds for supporting Trump’s position.

Trump has appealed Judge Marrero’s decision to the United States Court of Appeals for the Second Circuit. So, stay tuned.