Judge denies ‘virtually limitless’ shield to Trump in tax fight

MANHATTAN (CN) – Donald Trump is a president and not a king, a federal judge wrote in a scathing ruling on Monday morning, throwing out a lawsuit that would shield him, his businesses and his associates from New York state subpoenas.

Finding that the fight was not a federal one, U.S. District Judge Victor Marrero dismissed Trump’s lawsuit challenging the probe.

“Shunning the concept of the inviolability of the person of the King of England and the bounds of the monarch’s protective screen covering the Crown’s actions from legal scrutiny, the Founders disclaimed any notion that the Constitution general conferred similarly all-encompassing immunity upon the president,” Marrero wrote in a scathing 75-page opinion.

Before the subpoena could be enforced this afternoon, the Second Circuit ordered a temporary stay in connection to an emergency appeal filed by Trump’s attorneys. Manhattan District Attorney Cyrus Vance in turn is requesting that the Second Circuit fast-track Trump’s appeal, holding a hearing before the end of the week.

Until that appeal arrives, Judge Marrero’s ruling stands as an excoriating rebuke to what he described as a “virtually limitless” assertion of executive power.

“Bared to its core, the proposition the president advances reduces to the very notion that the Founders rejected at the inception of the republic, and that the Supreme Court has since unequivocally repudiated: that a constitutional domain exists in this country in which 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,” the opinion states.

Marrero found “such a doctrine repugnant to the nation’s governmental structure and constitutional values.”

The Manhattan district attorney subpoenaed the accounting firm Mazars USA earlier this year as part of a criminal investigation into hush-money payments made to adult film actress Stormy Daniels, seeking eight years of Trump’s personal and corporate tax returns.

Just before the original deadline of that subpoena arose, Trump brought a lawsuit that said that no prosecutor, federal or state can subject a sitting president, his businesses or his allies to the criminal process while he is in office, even if that investigation involves conduct that preceded his term in office.

Responding to Judge Marrero’s ruling Monday, the president took to Twitter. “The Radical Left Democrats have failed on all fronts, so now they are pushing local New York City and State Democrat prosecutors to go get President Trump,” he wrote. “A thing like this has never happened to any President before. Not even close!”

Special counsel Robert Mueller’s investigation ended without Trump’s indictment or exoneration, largely owing to memos from the Justice Department Office of Legal Counsel that say a sitting president cannot be charged with a crime.

Warning against treating those memos as Holy Writ, Marrero noted with heavy irony those legal theories of executive power are not “inscribed on constitutional tablets so-etched by the Supreme Court.”

“In fact, as the DOJ Memos themselves also concede, the precise presidential immunity questions this litigation raises have never been squarely presented or fully addressed by the Supreme Court,” Marrero wrote.

Contradicting Mueller, Marrero wrote that “no persuasive argument could be made that an indictment of the president while in office” would present a severe burden on the executive.

“Balanced against the prospect of a number of powerful individuals going free and escaping punishment for serious crimes by ‘virtue of the President asserting absolute immunity from criminal process, an alternative that would allow the indictment and prosecution to proceed under these circumstances may weigh against recognizing a categorical claim of presidential immunity,” his opinion states.

After finding the president could not be charged federally, the Justice Department also helped shield Trump from state prosecution.

Federal prosecutors with the Southern District of New York filed a letter two weeks ago indicating that they would consider entering the case, and Judge Marrero paused the subpoenas to give prosecutors time to develop their position.

State prosecutors in Vance’s office had slammed that office’s entrance into the case at what he called the “eleventh hour,” telling a judge that federal prosecutors’ requested extension would only serve Trump’s delay tactics.

“The real game plan today, again looking for as much delay as possible, is to seek stays at every stage,” Assistant District Attorney Carey Dunne said in September.

After Marrero granted Trump a brief delay, the Department of Justice filed a statement of interest arguing the dispute should be decided in federal court, not state court. They asked the court to temporarily put a hold on the dispute until resolution of “significant constitutional issues.”

Marrero resoundingly rejected that position.

“The court declines to contradict over thirty years’ worth of settled and well-reasoned precedent of courts in this district and instead concludes that this case involves an ongoing state criminal prosecution,” the ruling states.

The Justice Department told the Second Circuit today that they will support the president’s position on appeal, requesting a Friday deadline to submit a brief. The Southern District of New York did not join in that request.

Manhattan prosecutors told the judge last week that every U.S. president since Jimmy Carter has voluntarily released his tax returns “before or upon taking office, which has never impeded a president’s ability to serve.”

Breaking from that tradition, Trump has fought every jurisdiction attempting to scrutinize his finances. The set includes the Manhattan district attorney, House Oversight Committee, House Intelligence Committee, and attorneys general from Maryland and Washington. Even after initially losing federal court battles, Trump has succeeded so far in putting their subpoenas on pause by appealing every ruling against him.

Vance’s office has cast Trump’s litigation position as a “sweeping” assertion of executive power, creating a “tax return privilege” where none existed and a “blanket immunity” shielding not only the president but anyone in his orbit from the criminal process.  They declined to comment on Marrero’s ruling Monday.

Today’s ruling comes as the Democrat-controlled House continues an impeachment inquiry investigating allegations the Trump sought Ukrainian help to dig up dirt on former Vice President Joe Biden, his likely rival in the next election.

Noting that Trump’s impeachment and removal would strip his immunity, Marrero pointed to two historical antecedents that show the limited power of the presidency.

“Of course, as the Watergate scandal and more recent events confirm, there are practical and legal constraints over a president’s power to interfere with a federal law enforcement investigation of himself or his office, without risking serious charges of obstruction of justice,” the judge wrote in a footnote.

Marrero also invoked precedent involving former President Bill Clinton no fewer than 15 times.