TRUMP TAX RETURN CIRCUS

-->

Whether the number of Trump lies is 12,000 or 20,000, is irrelevant.  We can endure a lying President, but we cannot endure a President who successfully attacks what the Founders have wrought.

We elected a con artist. We knew who he was when we voted him into office. Whether he would have won without Russian help is now unknowable and therefore irrelevant.

Three aspects of the Trump campaign are prominent today:

1. His refusal to turn over his tax returns,

2. His statement that he was so popular, he could shoot a bystander on Fifth Ave in broad daylight, and no prosecution would ensue,

3. In the matter of pre-election funding of the Stormy Daniels payoff to dissuade her from publicly revealing her adulterous liason with Trump, Trump was subsequently named by the SDNY as a conspirator.

Now, a New York County Grand Jury, under the direction of District Attorney Cyrus Vance, is pursuing an investigation into whether state laws were violated respecting the record keeping and the tax treatment of that criminal payoff. Accordingly, Vance has subpoenaed documents and tax returns from the Trump organization and the accounting firm that prepared tax returns for Trump and his  company. One subpoena specifically asks for Trump's tax returns. All events under inquiry are related to a time period before Trump was sworn in as President.

Surprise, surprise, Trump has sued to block the subpoena. The grounds? His lawyers filed a 20-page tract asserting i) a sitting President is immune from State prosecution, and ii) therefore he is immune even from being investigated by a state prosecutor who, after reviewing the evidence, may decide not to prosecute, and iii) therefore no state grand jury can subpoena a third party who may have evidence of a pre-inauguration crime committed by a sitting President. 

A crime is a crime, and it follows that the President now asserts that no grand jury may even inquire about the existence of evidence of a president's pre-inaugural murder of a bystander on Fifth Avenue in broad daylight.

How low have sunk?

What legal theories do the President's lawyers advance for this bizarre proposition?

First, they argue the Constitution bars criminal indictment of a sitting President. This is manifestly false. The Constitution says no such thing, and scholars have debated the issue for years.

Small world. My colleagues and I raised the issue for the first time in our representation of Spiro Agnew, who was being investigated by a federal grand jury in Maryland for alleged bribery and tax violations. We recognized there was no Constitutional language that was dispositive, but asserted that the Constitutional structure implied there could be no indictment of a sitting Vice President. Robert Bork, the presiding Solicitor General, called the issue "momentous and difficult." Attorney General Elliot Richardson sent the question to the DOJ's Office of Legal Counsel for an opinion.

But here's the shocker: The OLC opinion writer reported back the issue was so close it could go either way, and he wanted to know which answer the Attorney General wanted!  Richardson's Executive Assistant told him, and he obeyed: he opined the Vice President was not immune, (and while no one was then accusing the President of criminal conduct) he then tacked on the view that the President was immune.

The issue arose again during the Clinton Administration, and, duh, Clinton's OLC, relying largely on the earlier corrupted Agnew OLC opinion written by Nixon's appointee, also concluded the President was immune. The result was that each President's DOJ adopted a policy barring the indictment of the Constitutional officer that appointed its leadership!

William Barr and Robert Mueller, relying on the same two tainted OLC opinions, adhered to the DOJ policy and barred the indictment of Donald Trump for obstruction of justice.

And it's worth noting that even if one concludes that the Constitution does bar a federal indictment, state prosecutions are independent matters. Federal criminal immunity granted because of a federal pardon or federal double jeopardy protection does not bar a state prosecution for the same crime. There could not be, and there is no mention in the OLC opinions of a Constitutional bar of state prosecutions.

Second, Trump's lawyers have built their defensive wall on a foundation of loose mud: they assert there cannot even be a state inquiry into pre-election criminality. Even assuming a conclusion that the Constitution bars a state indictment, there is zero legal basis for claiming the state may not even investigate whether a state crime has been committed, and if so, by whom. If immunity from prosecution barred investigative inquiry, that doctrine would have barred Mueller from even investigating the question of presidential collusion and obstruction, the issues Trump's Department of Justice appointed him look into.

Trump's legal argument is based on the alleged burden a criminal investigation imposes upon the busy chief executive. This notion was flatly rejected by the Supreme Court in Clinton v Jones. While that was a civil case, the unanimous court ruled the sitting President was not immune from suit because of the burden of litigation, and left it to the District Court to adjust the discovery and trial demands of the President's direct participation.  And in Nixon v US, the Supremes enforced a criminal subpoena against the President. No great burden on the busy President: All he was required to do was turn over some tapes!

In the current matter, there is nothing this President needs to do. The subpoenas are directed to i) the Trump Organization, which is in a trust managed by his children, and ii) an accounting firm. The President is not the subpoenaed party and the matter need trouble neither his tee times nor tweet traffic.

The third and last argument advanced by the Trump complaint is that the Vance subpoenas are consistent with Congressional subpoenas, and therefore the prosecutor's motive is "political." Judge Leval in the Second Circuit Court of Appeals dealt with the "political" issue last week in his majority opinion reinstating an Emoluments Clause case against Trump. He said the argument was irrelevant. A political motive cannot save a defective cause of action, and it cannot defeat a valid one.  Either Trump has Constitutional immunity from criminal investigation or he does not. That is a purely legal question. Whether or not Vance has a political motive for issuing the grand jury subpoena is irrelevant.

Of course, the merits of this dispute are not the real issue. The Trump claim is a sham, and just one more component in this President's strategy of delay, delay, delay. If Trump can keep all these balls in the air, and keep the courts chewing on this and the other questions about his presidency until November 5, 2020, he wins.

So, we are presented with another test for the legal system. This particular legal question has been brewing for months. Both the Trump team and the Cyrus Vance's prosecutors have, I am sure, extensive memos and briefs polished and ready to go. Indeed, the Trump complaint, filed within 48 hours of Vance's tax subpoena, is really a 20-page brief replete with legal argument and citations to Law Journal articles and court decisions. All both sides need do is push the "send" button and their briefs will be submitted to the court. There is no need for delay, and the court should not countenance any request for time. If Trump wins the stall, he effectively wins the case.

And the Founders lose.

A bientot.

...........................

As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

If you want more details about the Agnew immunity argument and the OLC opinions, see my memoir "The Client Decides" available on Amazon and Kindle, and see my blog at https://londonsbh.blogspot.com/search?q=legal+rabbit+hole