One of President’s lawyers has taken a campaign joke and raised it to the level of a serious legal argument:
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, expressing skepticism about the president’s argument that he was immune from criminal investigation. A lower court judge earlier this month rejected Mr. Trump’s claim, which has not previously been tested in the courts.
Carey R. Dunne, the Manhattan district attorney’s general counsel, cited the president’s famous claim that he could shoot someone on Fifth Avenue without losing political support.
Mr. Dunne asked what would happen in that extreme scenario? “Would we have to wait for an impeachment proceeding to be initiated?” he said.
Later, Judge Denny Chin posed the Fifth Avenue hypothetical to William S. Consovoy, a lawyer for Mr. Trump, and asked for his view.
“Local authorities couldn’t investigate? They couldn’t do anything about it?” Judge Chin asked, adding: “Nothing could be done? That’s your position?”
“That is correct. That is correct,” Mr. Consovoy said.
The panel did not immediately indicate when it would issue a ruling, but Judge Robert A. Katzmann, the appeals court’s chief judge, 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 that you may be seeing each other again in Washington.”
(…)
Throughout the arguments, the judges returned to the president’s claim of broad immunity.
“Your position,” Judge Chin addressed Mr. Consovoy at one point, “is that the immunity is absolute.
“And so if the president were to commit a crime, no matter how heinous,” Judge Chin continued, whether he did it before he took office or after he entered, he could not be the subject of any investigation.
“That’s the position?”
“Yes,” Mr. Consovoy replied, adding, “Of course, Congress retains the impeachment power.”
The hearing this week is on the appeal of a ruling that was handed down by Federal District Court Judge Victor Marrero who ruled against Trump in a lawsuit that had been filed on his behalf in an effort to block an ongoing investigation in New York City. by Manhattan District Attorney Cyrus Vance, Jr., who happens to be the son of President Jimmy Carter’s first Secretary of State. That investigation is apparently related to the payoffs that were made to adult film star Stormy Daniels and Playboy model Karen McDougal to induce them to remain silent about their past relationship with Trump during the final months of the 2016 Presidential campaign. It is in no small part because of these payments that the President’s former lawyer Michael Cohen sits in Federal prison in a case in which the President was identified as “Individual 1,” effectively an unindicted co-conspirator with Cohen in an effort to evade federal campaign finance laws. Vance is apparently investigating the matter to determine what, if any, New York state laws may have been violated by the payoffs and who could be culpable under those laws.
In his initial lawsuit, Trump and his lawyers made the argument that Vance was precluded from obtaining copies of the tax returns because the same argument(s) that support the position that a sitting President cannot be criminally indicted also mean that he cannot be investigated as part of a criminal proceeding. By putting forward this argument the President’s lawyers may have bitten off more than they can chew, especially if the manner in which Judge Marrero reacted to the argument. In his more than 70 page opinion, the Judge categorically rejects the idea that a President cannot be criminally investigated as adopting a view of the Presidency that, he argues, goes far beyond the powers and protections provided by Article II of Constitution.
In his ruling, Marrero called the view that the President is immune from investigation to be “repugnant” to the Constitution. What made his ruling most significant, though, is that it could also be applied to the view held by the Justice Department’s Office of Legal Counsel that the President is immune from criminal indictment while in office. This argument that has been accepted as settled law since the Justice Department’s Office of Legal Counsel first looked at in the wake of the Watergate scandal and then revisited in the 1990s while President Clinton faced charges of perjury in the context of a Federal civil lawsuit that eventually led to his impeachment in 1998. It was based on this long-standing policy that Special Counsel Robert Mueller and his legal team precluded themselves from drawing any conclusions about whether or not the President had broken any laws with regard to the Russia investigation even though there was significant evidence to support the idea that he had engaged in obstruction of justice at the very least. Based on Marrero’s reasoning, though, the question then becomes why there should be a legal bar on a President being indicted during the course of his Presidency.
The President’s attorneys are raising this same argument on appeal, and the line of questioning that the panel judges engaged his attorney in point out just absurd the argument actually is. The idea that a sitting President could not even be investigated in a criminal proceeding in the event he committed the fabled murder on Fifth Avenue is fundamentally absurd, It becomes even more absurd when, as is the case here, we’re talking about conduct that occurred prior to Trump becoming President. As Judge Marrero put it, such an idea goes against the very logic of the Constitution and raises the President well beyond the type of office it is supposed to be pursuant to Article II of the Constitution. Instead, it pictures the President to be equivalent to the absolute Monarchy exemplified by pre-Revolutionary France or Czarist Russia. That is most assuredly not what the drafters of the Constitution intended.
The canard about the President being able to shoot someone on Fifth Avenue, of course, started out as something of a joke during the 2016 campaign to illustrate the cult-like worship he receives from his supporters. The fact that it is now being raised as a serious legal argument by his attorneys is perhaps the best demonstration we have of the extent to which the rule of law, and sanity, have disappeared under this Administration. In any event, given the expedited nature of the hearing we’re also likely to get an expedited ruling. This means that the matter could be before the Supreme Court in the form of a petition for review before the end of the year.
