BREAKING NEWS: MURDER ON FIFTH AVENUE!

 

"I can stand in the middle of Fifth Avenue and shoot somebody, and nothing can be done as long as I am President."

 

That is the argument Donald J. Trump effectively made to the Second Circuit Court of Appeals in October, 2019.  And next week, you can hear it made again to the Supreme Court, where Trump's lawyer seeks to reverse the unanimous Second Circuit rejection of Trump's claim.

 

At issue in this case is a grand jury subpoena served on Trump's accounting firm, Mazars. It demands production of records relating to the Trump Organization's New York State tax returns for several years before his presidency. The  Manhattan District Attorney, Cyrus Vance, is conducting an investigation into possible criminal state tax law violations by Trump and others in the Trump Organization.

 

Trump intervened, and obtained a temporary order staying Mazars' compliance. The accounting firm says it will give Vance the documents he wants if and when the existing federal court stay is dissolved.

 

So is Trump immune from being investigated for shooting that Fifth Avenue pedestrian? If yes, then it follows he is immune from being investigated for tax fraud.

 

But precedent, as well as logic, compels the answer "No."

 

The Vance case involves Trump's conduct before he was

president. That was a key factor in the Clinton case in which Paula Jones' civil suit alleged that Governor Clinton had sexually assaulted her.  President Clinton argued that he was immune from civil suit while in office, even though the subject matter of the claim was pre-presidential conduct. A unanimous Supreme Court rejected the Clinton defense and ordered the claim to proceed. Ultimately, Clinton testified in a pre-trial proceeding where he lied, and he was impeached.

 

And perhaps a more persuasive precedent was U.S. v Nixon, where another unanimous Supreme Court held the president was not immune from complying with a subpoena demanding his production of documents in a federal criminal case. The subpoenaed documents involved Nixon's conduct while in office. Pursuant to that Supreme Court decision, Nixon produced the demanded tapes and was forced to resign.

 

[If you would like to lose some sleep tonight, think about what would Trump have done? Would he have tweeted his disagreement with the Court decision and ignored it?]

 

Ok, back to the present:

 

Notably, in both the Clinton and Nixon cases, justices appointed by the president voted against him. The only exception was Rehnquist, who had served in the Nixon Department of Justice, and recused himself.

 

The Vance subpoena case will be heard along with two other cases, in which subpoenas addressed to Mazars and Deutsche Bank were originated by congressional committees. 

 

Legal precedent declaring that the expansive power of Congress to investigate is a necessary component of the power to legislate, makes Trump's attack on those subpoenas an uphill burden.

 

Trump lost all three cases in the lower courts.

 

But this is not your ordinary Supreme Court. It's conservative majority has not earned the respect of the Clinton and Nixon justices, and court observers fear these Supremes may try to find a way to avoid holding against Trump.

 

Just last week the justices asked the parties to brief the question of whether the dispute between the congressional committees and Trump was not a "political" question beyond the court's jurisdiction because of the "separation of powers" doctrine implicit in our Constitutional framework. A holding that Congress cannot get court assistance to restrain an authoritarian President would significantly expand the power of an "Imperial Presidency."

 

Ironically, if the Court rules the federal courts have no jurisdiction here, and dissolves the court-ordered stays, that might result in Mazars and Deutche Bank turning over the subpoenaed documents to Congress.

 

All three cases will be argued for two hours starting at 10 a.m. on May 12. Because of Covid-19, the arguments will be via telephone, and the public can access the proceedings live at

  √https://www.npr.org/2020/05/03/848317039/listen-live-supreme-court-arguments-begin-monday

 

So, on the day after the St. Barths lockdown ends, if our fragile internet holds up, I can listen to a historic U.S. Supreme Court argument before I go to the beach where I sit, open my book, and fall fast asleep. It's an important job, and somebody's got do it. Glad it's me.

 

A bientot.

 

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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

 

And it you want to know if Trump is beatable in court, check out my memoir, "The Client Decides," available on Amazon and Kindle.