If Trump Shoots Someone on 5th Ave., Does He Have Immunity? His Lawyer Says Yes

By Benjamin Weiser and 


Oct. 23, 2019

Lawyers for President Trump argue that he is immune from criminal investigation while in office.


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.”

A deal struck with the district attorney’s office will allow the president time to seek a speedy review of the appellate ruling in the Supreme Court on the condition that he ask that the court hear the case in its current term, which ends in June.

The district attorney, Cyrus R. Vance Jr., a Democrat, has agreed not to seek enforcement of the subpoena until the Supreme Court either refuses to hear Mr. Trump’s case or issues an opinion, whichever comes first. Mr. Vance was present in the spectator section of the packed courtroom as the arguments took place.

The United States Court of Appeals for the Second Circuit in Manhattan typically decides cases through three-judge panels. The panel members who heard the subpoena dispute were Judge Katzmann, Judge Chin and Judge Christopher F. Droney.

Judge Katzmann was appointed to the appeals court by President Bill Clinton. Judges Chin and Droney were appointed by President Barack Obama.

The appeal by Mr. Trump’s lawyers came after a lower court judge ruled on Oct. 7 that the president’s argument that he could not be investigated by a local prosecutor was “repugnant to the nation’s governmental structure and constitutional values.”

Mr. Vance’s office in late August subpoenaed Mr. Trump’s accounting firm, Mazars USA, for his personal and corporate tax returns dating to 2011.

The district attorney had been investigating whether any New York State laws were broken when Mr. Trump and his company, the Trump Organization, reimbursed Michael D. Cohen, the president’s former lawyer and fixer, for payments he made to the pornographic film actress Stormy Daniels, who had said she had an affair with Mr. Trump.

Mr. Trump has denied the affair.

Mr. Trump went into federal court last month, trying to block the district attorney’s subpoena. The president argued that the Constitution prevented a sitting president from being “investigated, indicted or otherwise subjected to criminal process.”

The subpoena was an “effort to harass the president by obtaining and exposing his confidential financial information, not a legitimate attempt to enforce New York law,” the president’s lawyers wrote.

In the appeals court on Wednesday, Mr. Consovoy told the panel, “We view the entire subpoena as an inappropriate fishing expedition not made in good faith.”

After Judge Victor Marrero of United States District Court in Manhattan, in a 75-page ruling, rejected Mr. Trump’s broad argument, the president’s lawyers appealed to the Second Circuit.

They contended in legal briefs that Mr. Trump’s claim of absolute immunity was meritorious; they said the framers of the Constitution, recognizing the need for a strong chief executive, created the impeachment process for investigating and removing a president in a manner that would “embody the will of the people.”

“A lone county prosecutor cannot circumvent this arrangement,” they wrote.

In court on Wednesday, Mr. Consovoy sought to paint a dramatic picture of what Judge Marrero’s ruling could lead to.

“The question is not about this subpoena,” he said. “It’s about what would happen if all 50 states were unleashed to engage in any kind of investigations, criminal investigations of a sitting president.”

The Justice Department, led by William P. Barr, also weighed in, telling the appeals panel that the case raised “significant constitutional issues.”

The government is not a party to the case but has the right to provide its views.

Although the Justice Department asked that the court stop the release of Mr. Trump’s tax returns and reiterated its longstanding position that a sitting president may not be charged or prosecuted, it appeared to leave open the door for Mr. Trump to be investigated by Mr. Vance’s office.

The Justice Department argued that Mr. Vance should not be able to obtain the president’s personal records “unless and until” it could show that the records it was seeking from Mr. Trump were central to the investigation, not available elsewhere and were needed immediately, as opposed to after Mr. Trump leaves office.

Mr. Vance’s office, citing Mr. Trump’s arguments in the case, told the appeals court in a brief that Mr. Trump’s “core position on every one of these matters is that the United States presidency places him beyond the reach of the law.”

During the appeals hearing, Judge Katzmann asked whether the court could address only whether a state may lawfully demand that a third party — in this case, Mazars, Mr. Trump’s accounting firm — relinquish the president’s personal financial records for use in a grand jury investigation while the president was still in office.

“Why can’t we think about this case in a narrow sense?” Judge Katzmann asked.

Mr. Consovoy responded that one “cannot simply pretend” that such a subpoena was not “ultimately directed to the party who entrusted the custodian with those records.”

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.”

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