Trump, DOJ ask appeals court to block NY tax return subpoena

President Trump on Friday urged a federal appeals court to reverse a lower court’s decision dismissing his lawsuit over New York prosecutors’ subpoena for his tax returns.

In his opening brief in his appeal, Trump reiterated his position that the subpoena is unconstitutional because presidents cannot be subject to the criminal process — a position the district court rejected.

“The district court’s decision is the first to relegate a sitting President’s federal claim to state court, and the first to hold that a State can criminally prosecute a sitting President,” Trump’s personal lawyers wrote. “It should be reversed, and the subpoena should be stayed pending appeal and Supreme Court review.”

{mosads}The Department of Justice (DOJ) on Friday also filed a friend-of-the-court brief that asked the court to block enforcement of the subpoena, though it took a slightly different approach than Trump’s brief.

In its brief, DOJ argued that the case belongs in federal court and that the Constitution constrains states’ ability to subject presidents to the criminal process. DOJ also argued that the lower court judge erred because he didn’t evaluate whether the Manhattan district attorney’s office had demonstrated “a specific and immediate need” for Trump’s records.

“The court should be ordered to stay enforcement of the subpoena as to the President’s personal records unless and until—at a minimum—the District Attorney is able to make the required showing of particularized need,” DOJ wrote. 

The filings from Trump and the DOJ come after Judge Victor Marrero, a federal district court judge in New York, on Monday dismissed the president’s lawsuit that sought to block enforcement of the Manhattan district attorney’s office’s subpoena for his tax returns and other financial records.

The district attorney’s office is seeking the records from Trump’s accounting firm, Mazars USA, as part of a grand-jury investigation into payments made ahead of the 2016 election to women who allege that they had affairs with Trump. Trump has denied the affairs.

Trump’s personal lawyers quickly filed an appeal to the U.S. Court of Appeals for the Second Circuit. The appeals court established an expedited briefing schedule in the case, with oral arguments set for Oct. 23. The court has blocked enforcement of the subpoena until arguments in the case are completed.

In his ruling Monday, Marrero, an appointee of former President Bill Clinton, argued that the federal courts should abstain from exercising jurisdiction over the lawsuit and that any court case on this issue belongs in state court. Alternatively, he denied Trump’s motion for temporary relief in the event an appeals court ruled that abstention isn’t warranted.

Marrero blasted Trump’s position that the subpoena is unlawful because presidents can’t be criminally investigated while in office. The judge said that the Constitution did not envision such a broad assertion of presidential immunity. And he said that he is not persuaded that DOJ memos arguing that presidents can’t be criminally investigated should be given the weight that Trump’s lawyers ascribe to them.

Trump’s lawyers argued Friday that there is no rationale for the federal courts to abstain from exercising jurisdiction over his lawsuit.

“There is no basis for insisting that the President pursue a claim that the federal Constitution immunizes him from state process in state court,” they wrote.

Trump’s lawyers also argued that the president’s immunity claim is “meritorious.”

“While the district court focused on various Justice Department opinions, it failed to seriously confront the settled constitutional principles that underlie those opinions,” Trump’s lawyers wrote. “There has been broad bipartisan agreement, for decades if not centuries, that a sitting President cannot be subjected to criminal process. That consensus follows from the Constitution’s text, history, and structure, as well as from precedent.”

Trump’s lawyers argued that the court should overturn Marrero’s opinion. However, if the appeals court agrees with Marrero, it should block enforcement of the subpoena until the president files a petition to the Supreme Court, Trump’s lawyers added.

In a separate case, a federal appeals court in D.C. on Friday ruled against Trump in his legal challenge to block House Democrats’ subpoena to Mazars. The Democratic-led House Oversight and Reform Committee’s subpoena to Mazars is similar to the New York prosecutors’ subpoena but did not explicitly seek Trump’s tax returns.