Judge Throws the Book at Trump’s ‘I’m Above the Law’ Defense
Trump and his lawyers say he can’t be touched legally as long as he’s president. As of now, however, the courts gratifyingly say otherwise.
The idea that a sitting president cannot be indicted for his crimes while in office—even if, say, he shot someone on Fifth Avenue—may finally be coming to an end. On Monday, New York federal Judge Victor Marrero handed down an opinion that decimated the idea that sitting presidents should be absolutely immune from criminal prosecution while in the White House.
Before we get into the legal issues raised in this case, let me say that it’s absolutely inconsistent with our system of justice that a president should be above the law while in office. We elected the person to be president, not monarch. Clearly, I’m not alone in that view, as a June poll found nearly 70 percent of Americans support charging a sitting president for any crimes committed, while only 24 percent oppose it.
As I wrote last year in favor of indicting Donald Trump for his crimes, there’s nothing in the Constitution that suggests a sitting president cannot be charged with crimes while in office. Add to that, the Supreme Court has never considered this very question. The reason this is effectively the rule of the law, however, rests merely on two memos written by the Department of Justice’s Office of Legal Counsel, one in 1973 and another in 2000, that reached such a conclusion. But the reasoning of these two memos is not compelling, either from a legal or a practical point of view.
And that is exactly what Judge Marrero, appointed in 1999 by Bill Clinton, articulated in his 75-page opinion Monday. Now to be clear, the issue before the judge was not expressly whether a sitting president be indicted. Rather, the question being litigated was whether Trump could prevent his accounting firm, Mazars USA, from turning over to the Manhattan District Attorney his personal and corporate tax returns since 2011.
The Manhattan DA had subpoenaed these records as part of its investigation into whether Trump broke any New York state laws when he and his company reimbursed his long time fixer, Michael Cohen, for the funds Cohen paid as “hush money” to Stormy Daniels shortly before the 2016 election in order to keep her from going public about her affair with Trump.
Trump tried to stop his accountants from complying with the subpoena by seeking an injunction, claiming that as long as he is in office, he’s above the law. I’m not exaggerating. Trump’s lawyers argued that while in office, Trump “enjoys absolute immunity from criminal process of any kind.”
This goes way beyond not being able to indict a sitting president. As the court noted, Trump was seeking a “virtually limitless” sphere of protection that would prevent everything from prosecution to even investigating him for possible crimes while in office. And astoundingly, Trump even claimed this king-like immunity would also apply to third parties that are in possession of Trump’s information, like his accountants at Mazars, or to his “associates, or relatives who may have collaborated with the president in committing purportedly unlawful acts.” (Trump’s lawyers conceded that no court had afforded a sitting president this much immunity before.)
Judge Marrero was not having any of this, slamming Trump’s goal as being “repugnant to the nation’s governmental structure and constitutional values.” He wrote bluntly that Trump’s very argument was one that would place him “above the law” as President, a notion “that the Founders rejected at the inception of the Republic, and that the Supreme Court has since unequivocally repudiated.”
And since Trump’s lawyers premised their argument on the two DOJ memos, the Judge zeroed in on both. Marrero, in a master class of analysis, deconstructed the reasoning of these memos both legally and practically.
He wrote that in order to support presidential immunity while in office, “the DOJ Memos construct a doctrinal foundation and structure to support a presidential immunity theory that substantially relies on suppositions, practicalities, and public policy, as well as on conjurings of remote prospects and hyperbolic horrors.” He added, “The entire theoretical structure could collapse when it encounters real-world application that shakes the underpinnings of the unqualified doctrine” of presidential immunity.
“Clearly, the judge was signaling an openness to a sitting president being charged and tried.”
The judge warned that such blanket immunity “could enable the guilty to go free” if the statute of limitations to prosecute the president or third parties expired during “the period of immunity,” thus “frustrating the proper administration of justice.”
As an aside, if a president understands that he will be prosecuted as soon as his term ends, he may try to remain in office beyond constitutional limits to avoid prosecution, hoping a partisan Supreme Court may rule in his favor.
The court also addressed the concerns raised in the DOJ memos that a criminal proceeding involving a sitting president could hamstring “the operation of the whole governmental apparatus.” As the judge explained, not all crimes require the same time to resolve, with some taking years to litigate but others, like “failing to pay state taxes, or of driving while intoxicated, may not necessarily implicate such concerns.” Clearly, the judge was signaling an openness to a sitting president being charged and tried.
In dismissing Trump’s objection to his accounting firm complying with the subpoena, the judge wrote he “cannot square vision of presidential immunity that would place the President above the law with the text of the Constitution.” Trump’s lawyers immediately appealed the decision to the U.S. Court of Appeals for the 2nd Circuit, which issued a temporary stay pending review by a three-judge panel of the court.
But the most compelling part of this decision is the judge gutting the idea that there should be a blanket immunity from criminal prosecution for a sitting president. Of course, this will probably work its way up to the Supreme Court. But for now, we are one gratifying step closer to Trump—or any president, for that matter—no longer being above the law while in office.
One of the causes for the Panic of 1893 can be traced back to Argentina. One of the causes for the Panic of 2019 can be traced back to Argentina, another to Trumps’ Cabinet of Bankers. In 1893 @JPMorgan had to Bail Out the President, this time round it was @DeutscheBank #Panic
— LawsInTexas (@lawsintexasusa) August 14, 2019
#DidYouKnow MORTGAGE FRAUD – BANK FINES NO JAIL; Including both cash and non-cash consideration such as consumer relief, Bank of America paid $16.65 billion ; J.P. Morgan, $13 billion; Deutsche Bank, $7.2 billion; CORRECTION $0, THE GERMANS SAID HELL NO; THE DON OWES US! #Trump
— LawsInTexas (@lawsintexasusa) August 12, 2019
Donald Trump, the President Who Would Be King, Just Got Slapped by the Courts
Prior presidents who tussled with Congress and prosecutors understood in the end that America and the Constitution were far larger than them.
From the looks of things, the 45th president’s campaign to avoid impeachment is failing, his bid to self-coronate turning to dust. The mist of prosecution is in the air.
As the Supreme Court returns from its summer vacation, Donald Trump was rudely reminded that he is neither king nor sovereign, and that a sitting president is not immune from criminal investigation. Rather, he who dwells in the White House simply sits atop a co-equal branch of government, and is expected to obey the law. Apparently, l’état, ce n’est pas lui.
Just as the American public has swung solidly behind the House’s impeachment inquiry, the president ordered Gordon Sondland, the U.S. ambassador to the EU, not to testify before Congress. All this after a federal district judge—Victor Marrero, a 78-year-old native of Puerto Rico—on Monday ruled that Trump’s claim of blanket immunity in the face of a grand jury subpoena was “repugnant to the nation’s governmental structure and constitutional values.”
Marrero ordered that Trump’s accountants deliver eight years of his federal tax returns to the Manhattan District Attorney’s Office in response to a grand jury subpoena. Nancy Pelosi and Adam Schiff aren’t The Donald’s only headaches: Manhattan District Attorney Cyrus Vance Jr., who appears determined to see this fight through after letting the Trumps off the hook before, is his newest nightmare.
A review of Judge Marrero’s decision reveals that American history was something to be ignored by Trump’s legal eagles. The fact that Richard Nixon and Bill Clinton were subject to criminal investigation mattered little to Trump, and that Nixon’s vice president, Spiro Agnew, was prosecuted while still in office was no big deal. Likewise, that Nixon had to turn over the infamous Watergate tapes didn’t seem to register. All that stuff was so not “modern presidential” and too inconvenient to be bothered with.
Rather, as the House of Trump saw things, a “domain” existed where “not only the President, but, derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law.” That sounds like the legal theory of a mob crime family.
Fortunately, the court was having none of it. Instead, Judge Marrero labeled Trump’s position one that the “Founders rejected at the inception of the Republic, and that the Supreme Court has since unequivocally repudiated.”
At this moment, Trump must be experiencing a serious bout of Putin and Erdogan envy.
To be sure, this is not the first time Trump has tried to shroud himself in an invisibility cloak. Indeed, from the looks of things, Trump has a problem keeping his arguments coherent. According to William Consovoy, Trump’s lawyer, Congress is barred from investigating the president because that is a proper function of law enforcement, not Congress, and in turn, law enforcement may not investigate President Trump because he is immune from prosecution. Let that sink in.
Last spring, Consovoy told a different federal judge that Congress was powerless to hold the president’s feet to the fire, and that Watergate and Whitewater were examples of congressional overreach. As for a congressional oversight committee’s subpoena to Trump’s accountants, it was stepping over a line.
Who cares if the Constitution gives Congress pride of place and enumerates its powers in Article I? In Trumpworld numbers don’t matter unless Trump says they do, until he doesn’t.
“Trump has reason to be scared. New York State is not bound by the internal Justice Department opinion that tied Robert Mueller’s hands.”
Then and now, a court has rejected Trump’s arguments. As for Trump’s beef with Congress’ subpoena, we await an appellate decision. As for DA Vance’s investigation, within minutes of Trump’s latest loss, his lawyers had filed an emergency appeal with the Second Circuit. The song remains the same, yet this is all brand new terrain.
Prior presidents tussled with Congress and prosecutors, and claimed executive privilege, not wholesale immunity from scrutiny. In the end, they understood that America and the Constitution were far larger than them.
On Sunday night, Trump also branded Speaker Pelosi treasonous. We have seen this movie before. In Gladiator, Commodus jailed his opponents in the Senate. Suffice to say, we were not entertained.
Right now, the issue of whether a sitting president can be prosecuted in a state court is unanswered and unresolved. Vance isn’t Bill Barr, the current U.S. attorney general and the second coming of Roy Cohn.
Trump has reason to be scared. New York State is not bound by the internal Justice Department opinion that tied Robert Mueller’s hands. And Schiff has announced that Ambassador Sondland’s no-show would be considered an act of obstruction and that Sondland was withholding personal texts of interest.
Trump’s life just got even more complicated. Heavy is the head that wears the crown.
“In these partisan times, we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.”
— LawsInTexas (@lawsintexasusa) May 12, 2020