Editor’s Note: Jennifer Rodgers is a CNN legal analyst, a lecturer-in-law at Columbia Law School and a former federal prosecutor in the US Attorney’s Office for the Southern District of New York. The opinions expressed in this commentary are her own; view more opinion articles at CNN.
On Monday morning, US District Court Judge Victor Marrero handed President Donald Trump a major loss in his bid to stop the Manhattan District Attorney from obtaining the President’s personal and corporate tax returns and other financial documents.
The case involves the DA’s subpoena to Trump’s accounting firm as part of a grand jury investigation into whether Trump and others at the Trump Organization committed New York state crimes, like falsifying business records, in connection with hush money payments made to Stormy Daniels and Karen McDougal.
Judge Marrero’s decision was not unexpected to anyone with even a passing knowledge of the law. In essence, Judge Marrero summarized Trump’s argument as demanding “blanket presidential and derivative immunity (in) all stages of federal and state criminal law enforcement proceedings and judicial process: investigations, grand jury proceedings, indictments, arrest, prosecution, trial, conviction, and punishment.”
Crucially, because the DA’s investigation unquestionably targets not just the President, but others around him, Trump argued that the immunity he claims to enjoy extends to anything that touches upon the President, even investigations involving other persons.
Judge Marrero concluded that Trump’s claim of “absolute immunity from criminal process of any kind” for not just himself but for anyone who may have collaborated with the President in wrongdoing was “extraordinary” and an “overreach of executive power” that found “no support in the Constitution’s text or history” or in case law. This is exactly right.
Trump’s position is breathtaking in its audacity, and goes far beyond any position that he (or anyone else) has ever taken before. Indeed, it has long been established that, regardless of the legality of criminally charging a sitting president – which remains unsettled – others possibly involved in wrongdoing involving a president have no such immunity from investigation and prosecution.
Just ask the dozens of people convicted in Watergate. Or more to the point, consider Trump’s former lawyer Michael Cohen, who is currently serving a three-year federal prison sentence, in part for his role in the hush money scheme now being explored by the Manhattan DA.
And remember Robert Mueller? He led a two-year investigation into whether President Trump violated conspiracy and obstruction laws, an effort that netted indictments of more than 30 people.
And yet when it comes to this particular investigation, targeting the Trump Organization and requesting tax returns, Trump trots out a novel and outlandish theory claiming that prosecutors can’t even issue a subpoena if it involves the president somehow.
So what is really going on here to prompt such legal gymnastics on the part of the President? I think there are two things at play. First, Trump’s actions underscore (again) how desperate he is to avoid disclosing his tax returns and financial records. Second, notwithstanding their willingness to take a shot at it, Trump’s lawyers are smart enough to know that succeeding on the merits was well out of their reach. So what was the true goal of this litigation? I think it is delay, delay, delay.
As the DA’s office and Judge Marrero well understood, what Trump is trying to do here is kick the can down the road. A few days here and there add up to weeks, and then months, which in an election year can make the difference between charges being publicly disclosed before or after the presidential race is decided.
Remember, of course, that receiving these documents only begins the many investigative steps that would need to be taken in a criminal case; prosecutors still would have to assimilate the information, and take follow-up steps, including possibly obtaining more documents and interviewing witnesses before they would be ready to charge anyone. Keep in mind, too, that while this subpoena is litigated, the statute of limitations period for whatever crimes may have been committed continues to run, lessening the amount of time prosecutors have to make their case.
Monday’s ruling by Judge Marrero was prompt; the action was filed September 19 and decided less than three weeks later. But this is not close to the end of the road for the DA’s office in their quest to do their work. Immediately after Judge Marrero’s ruling this morning, Trump appealed to the Second Circuit Court of Appeals, obtaining an emergency stay halting document production while the case is heard.
It is now incumbent upon the judges of the Second Circuit to whom this matter is assigned to move swiftly. The matter has been briefed by the parties, and can move immediately to the Circuit’s motion calendar.
Judge Marrero’s ruling on this meritless lawsuit should be swiftly affirmed at the Second Circuit. And if the President appeals it from there – as we all know he will – the Supreme Court should decline to take it up, as is its obligation and practice for cases without a genuine legal controversy.
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Desperate times call for desperate measures, and that’s what we’ve seen here with the legal play by Team Trump. The courts should reject these specious claims and let the prosecutors do their jobs.