Trump Lawyer Sees Presidential Immunity -- Even for Shooting

(Bloomberg) -- Donald Trump boasted in 2016 that he was so popular he “could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose voters.” Now that he’s president, Trump has such broad immunity that he could shoot someone and not be prosecuted, at least as long as he’s in office, his attorney argued to a U.S. appeals court.

The claim came at the close of a 50-minute argument in which a lawyer for the president argued that Trump is constitutionally protected from criminal investigation. The president wants the appellate court panel to block a grand jury subpoena requiring Trump’s accountants to provide his tax returns and other financial records.

One of the three judges on the panel asked Trump’s lawyer, William Consovoy, whether police could pursue the president if he’d shot someone.

“What’s your view on the Fifth Avenue example?” U.S. Circuit Judge Denny Chin asked. “Local authorities couldn’t investigate, they couldn’t do anything about it?”

“I think once a president is removed from office,” local authorities could target him criminally, Consovoy responded.

“I’m talking about while in office,” Chin said. “Nothing could be done? That’s your position?”

“That is correct,” Consovoy replied.

Consovoy said prosecutors could do some investigation, such as collect documents, but criminal charges or a subpoena for his financial records would be out of bounds.

Subpoena Dispute

The Court of Appeals in Manhattan heard arguments Wednesday on Trump’s bid to reverse a ruling by a lower-court judge who refused to block the subpoena. On Oct. 7, U.S. District Judge Victor Marrero in Manhattan called the president’s broad claim of absolute immunity “repugnant” to the structure of the government and to the country’s constitutional values.

Manhattan District Attorney Cyrus Vance Jr. is investigating whether the Trump Organization falsified business records to disguise hush-money payments made before the 2016 election to two women who claimed they had sex with Trump. He sued in September -- as an individual and not as president -- in hopes of blocking the accounting firm Mazars USA LLP from turning over eight years of tax filings and other financial documents.

The case had been fast-tracked to the Court of Appeals, but both sides expect the dispute to end up at the U.S. Supreme Court.

“We view the entire subpoena as an inappropriate fishing expedition,” Consovoy told the court.

Consovoy argued that the Constitution gives the president “absolute immunity” from state judicial process, including the New York grand jury’s demand for evidence.

“That the Constitution empowers thousands of state and local prosecutors to embroil the President in criminal proceedings is unimaginable,” Trump’s lawyers said in an earlier court filing.

Judges’ Questions

The appellate judges peppered Consovoy and a lawyer for the DA’s office with questions, asking about the extent of the president’s claim of immunity, whether the immunity would extend to Trump’s company, if federal prosecutors could also seek the records, and whether the case belonged in federal court.

Carey Dunne, general counsel for Vance’s office, pushed back on Trump’s arguments.

“They’re making this up,” Dunne said, noting that the DA’s probe focuses on actions that occurred prior to Trump’s presidency. “There is no privilege for tax returns, whether it’s the president’s or anyone else’s in the country. Tax returns get subpoenaed all the time.”

Dunne said his office would keep the documents confidential and would not provide them even to Congress, and that an investigation is different from an actual charge. Dunne argued that it was too soon for Trump to sue, noting that the DA’s office would likely tell Trump if he were about to be charged by the state and that he could bring his lawsuit then.

‘Remarkable Proposition’

In earlier court filings, Vance argued that Trump is making a “remarkable proposition” to the court, “not only that a sitting president enjoys blanket immunity from criminal prosecution,” but that the immunity protects him from subpoenas targeting actions taken before he took office and that it extends to his companies, former associates and employees.

“This extravagant claim is unsupported by constitutional text, statute, or case law,” Vance argued.

Marrero, in his ruling, said that because the case concerns a state grand jury subpoena, it should be decided by a state court. He also said Trump was unlikely to win on his constitutional arguments.

Earlier this month, a federal appeals court in Washington upheld a different subpoena ordering Mazars to give Trump’s financial records to Congress. In a 2-1 decision, the court rejected arguments that the House Oversight and Reform Committee had no legitimate legislative reason to seek the information.

The case is being heard by a panel of three judges appointed by Democratic presidents, including Chief Judge Robert Katzmann, who holds a doctorate in government in addition to his law degree. Chin, the judge who sentenced Ponzi schemer Bernard Madoff to 150 years in prison, was appointed to the appeals court by Barrack Obama. The third member of the panel, Christopher Droney, in September was in the majority of a 2-1 panel that revived a suit against Trump targeting alleged violations of the Constitution’s Emoluments Clauses. He is also an Obama appointee. Katzmann was appointed by President Bill Clinton.

The appellate panel didn’t rule Wednesday or say when it will.

“We have the feeling that you may be seeing each other again, in Washington,” Katzmann said to close the hearing.

The case is Trump v. Vance, 19-3204, U.S. Court of Appeals for the Second Circuit (Manhattan).

To contact the reporter on this story: Bob Van Voris in federal court in Manhattan at rvanvoris@bloomberg.net

To contact the editors responsible for this story: David Glovin at dglovin@bloomberg.net, Steve Stroth

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