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Legal Experts React to ‘Significant’ Ruling on Trump Tax Returns: Could Open the Door to State Criminal Prosecution


Trump lawyers tried to rush a federal judge, and the judge was happy to dismiss their lawsuit bright and early on Monday morning. U.S. District Judge Victor Marrero dismissed President Donald Trump’s lawsuit attempting to prevent the Manhattan District Attorney’s Office from enforcing subpoenas — subpoenas demanding that the Trump accounting firm, Mazars USA, turn over Trump’s personal and corporate tax returns dating back to 2011.

This is obviously a major development when you consider that Congress (*cough cough* House Ways and Means Committee Chairman Rep. Richard Neal *cough cough*) has gotten virtually nowhere in attempting to obtain the same tax documents. Manhattan DA Cy Vance’s office previously subpoenaed Trump’s finance firm, Mazars USA — ostensibly to obtain eight years of Trump’s personal state and federal tax returns, as well as returns for the Trump Organization. After the subpoenas were issued, Team Trump responded with a lawsuit in federal court. That lawsuit was dismissed on Monday. Trump lawyers immediately filed an emergency notice of an appeal in the U.S. Court of Appeals for the Second Circuit. After all, the judge just dismissed the case, meaning there was a threat that the president’s tax returns would be handed over to a grand jury. And, yes, Team Trump has already gotten a temporary stay to prevent that from happening. This was expected.

Reaction from lawyers on Twitter to the Monday morning barrage of news was swift.

Judge Marrero is almost certainly right.

Here is what “abstention” means and why it’s important here.

This ruling was obvious.

Maybe don’t try and force a judge’s hand?

It was the correct call because it’s what the Founders would have wanted.

Not a surprising ruling because the argument that the president is utterly immune to the criminal process is not a part of our constitutional tradition.

In his 75-page opinion, Judge Marrero, indeed, rejected the president’s petition on the basis that it asserted an “extraordinary claim” of presidential immunity from virtually all criminal proceedings.

“The President asserts an extraordinary claim in the dispute now before this Court,” Marrero wrote. “He contends that, in his view of the President’s duties and functions and the allocation of governmental powers between the executive and the judicial branches under the united States Constitution, the person who serves as President, while in office enjoys absolute immunity from criminal process of any kind.”

Marrero wrote that the reach of such an argument would undoubtedly place any sitting president above the law.

“As the Court reads it, presidential immunity would stretch to cover every phase of the criminal proceedings, including investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial, conviction, and incarceration,” he said. “That constitutional protection presumably would encompass any conduct, at any time, in any forum, whether federal or state, and whether the President acted alone or in concert with other individuals.”

Here’s what people are missing.

This is the kind of ruling from a judge that would only bolster impeachment efforts.

This ruling is “significant,” as it could open the door to a state criminal prosecution.

This last point is itself significant. Vance is seeking the tax returns as part of an investigation into whether Trump and the Trump Organization violated state law.

As Law&Crime noted before, Vance’s prosecutors interviewed incarcerated former Trump attorney Michael Cohen in August to determine whether the Trump Organization violated state laws (created false business records) with hush payments to Karen McDougal and Stormy Daniels. The prosecutors visited Cohen “soon after they subpoenaed the Trump Organization and American Media Inc., the publisher of the National Enquirer, and interviewed Michael Cohen about this,” CNN reported.

The investigation was reportedly in the early stages and followed the Southern District of New York (SDNY) closing its hush money probe. Cohen was the only person do time as a result of federal probe of the hush payments. Cohen is currently serving out a three-year prison sentence in Otisville, New York after pleading guilty in the SDNY to campaign finance violations, tax evasion and bank fraud.

According to the New York Times, “several people with knowledge of the matter” confirmed the reported details on the subpoenas.

Vance’s office is reportedly looking into whether state laws were broken in the Trump/Trump Organization reimbursement of Cohen for facilitating the hush payments. Per the Times:

In particular, the state prosecutors are examining whether the company falsely accounted for the reimbursements as a legal expense. In New York, filing a false business record can be a crime.

But it becomes a felony only if prosecutors can prove that the false filing was made to commit or conceal another crime, such as tax violations or bank fraud. The tax returns and other documents sought from Mazars could shed light on whether any state laws were broken. Such subpoenas also routinely request related documents in connection with the returns.

And who knows what else an examination of these tax returns might reveal.

You can read the rest of Judge Marrero opinion below.

Judger Marrero opinion in T… by Law&Crime on Scribd

Jerry Lambe contributed to this report. 

[Image via Drew Angerer/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.