The Fifth Avenue Immunity

Can a State Investigate Alleged Criminal Wrongdoing Involving a Sitting President?

|The Volokh Conspiracy |

A 2d Circuit panel (Chief Judge Katzmann and Judges Droney and Chin) heard oral argument yesterday in the case of Trump v. Vance, in which Trump challenges a subpoena from a state (New York) grand jury, issued to the accounting firm (Mazars USA), demanding various financial records (including Trump's personal tax returns and the tax returns of the Trump Organization) from the period prior to Trump's inauguration.

An audio recording of the argument is available here, and makes for very interesting listening.

[If nothing else, there's some good appellate oral advocacy on display, by both lawyers (William Consovoy for Trump, Carey Dunne for the NY DA's office), both of whom seemed well-prepared and responsive to the panel's questions. Law students out there interested in the art of oral advocacy might want to ask themselves: How many times do you think the lawyers here had to read through the critical precedents—US v. Nixon, Clinton v. Jones, etc.—in order to have them so much at their command?]

Trump has to persuade the court that there is a federal interest at stake that would justify a federal court's interference with an ongoing state criminal investigation. The interest he asserts is a supposed presidential immunity from state criminal investigation: The subpoena, he argues, violates his federally-protected right, as president, to be free from criminal investigation by state authorities, even in connection with activity occurring prior to his assuming office.

The facts here are particularly unfavorable to an assertion of immunity of this kind.  First, the subpoena was issued to a third party—the Mazers firm—so there are no serious grounds to argue that it would somehow distract the president from performing his official duties; as Judge Chin pointed out, this particular subpoena "doesn't require Trump to do anything," so it can hardly be said to be distracting him from other duties. Secondly, because the subpoena concerns conduct from the time before he was president, the federal interest in allowing a president to conduct the business of the US free from interference from pesky state investigators is not implicated.

As a consequence, without any grounds for arguing that this particular subpoena will be damaging to his performance of his (federal) duties, Trump is in effect forced to argue for a blanket, per se rule: State criminal investigations of a sitting president are never permissible.

The district court rejected the argument, and, from both the tenor of the oral argument and the absence of any substantial legal foundations for such an immunity, one has to expect the 2d Circuit to do the same.  The slope is very, very slippery, and I cannot believe that the 2d Circuit will choose to slide down it.

The critical telling moment during the argument occurs during the rebuttal argument of Trump's  attorney, William Consovoy, in response to a question from Judge Chin (46:50 et seq.) about "the Fifth Avenue example"—the hypothetical scenario in which a sitting president, while in office or prior to assuming office, walks down Fifth Avenue and shoots someone:

Judge Chin: What's your view on the Fifth Avenue example? Local authorities couldn't investigate? They couldn't do anything about it? … Nothing could be done? That is your position?

Consovoy: That is correct.

Unlike some other commentators, I don't fault Consovoy for the admission here; that has to be his position if his client is to prevail. But the idea that New York couldn't even investigate the circumstances surrounding any alleged criminal activity by a sitting president—whether it occurred before or during his term in office—is rather breath-taking, with no real support in prior law, and it is almost impossible for me to believe the 2d Circuit will endorse it.

NEXT: "Explaining Criminal Sanctions in Intellectual Property Law" Symposium Piece Out

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  1. Most Conspirators seem to be avoiding this issue, and similar legal issues in current news, with a passion rarely seen these days outside the context of “lock her up” chants.

    #ConservativeCourage

    1. I’ve been occupied, but I’m available now.

      The administration’s position here is absurdly bad, simply wrong.

      The Constitution grants members of Congress quite limited immunity: “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

      It is laughable to assert that a Constitution which explicitly gives members of the legislature such limited immunity gives the President vastly greater immunity by mere implication. I reject the idea utterly.

      As a practical matter, Presidents are immune from federal prosecution while in office, because every federal prosecutor is subject to presidential commands, and serves at the President’s pleasure, subject to being fired at any time, for any reason. And so Presidents can’t be federally prosecuted without their own consent.

      The President has no such authority over state prosecutors, and not one word in the Constitution so much as suggests he isn’t as subject to them as any other citizen.

      1. So the President can be removed from office either by impeachment and conviction in the Senate or by having a local county judge sentence him to jail?

        1. In theory, he could govern from jail; Putting him in prison wouldn’t actually deprive him of any of the powers of the office, in exactly the same manner as impeachment doesn’t put him in prison.

          I’m not saying there aren’t any practical difficulties arising from a President being prosecuted while in office, difficulties which also exist for any other office holder. Perhaps if the founders had anticipated that a President might be a criminal, or that a state prosecutor would up and decide to prosecute him regardless just to inconvenience a President they didn’t like, there would be a clause in the Constitution dealing with this situation.

          But, Constitutions don’t typically address every conceivable hypothetical situation. Just because a situation they didn’t anticipate would cause problems, doesn’t mean we’re entitled to attribute to a Constitution which is silent on the matter a solution we find acceptable.

          Maybe Presidents should have been granted some kind of immunity from prosecution while in office. It just happens that they weren’t.

          1. “In theory, he could govern from jail”

            Yeah, just replace the prison guards with his secret service detachment.

            You can put his staff in adjoining cells.

            State dinners in the cafeteria would be fine.

            Cabinet meetings in the warden’s office.

            1. That sounds like a plot of a movie, actually.

              ——–
              “Presidential Prison”
              He’s a liar, a crook, a thief and a murderer… and the best man for the job. Be thrilled as he negotiates (like a boss!) with foreign leaders, be mystified as he handles military matters (like a boss!), be stupefied as he deals with the inhumane conditions of a maximum security prison the same as other inmates because for some reason the president of the United States isn’t given sufficient security (like a bitch!)

              Coming to a theater near you!
              ——–
              Yeah, I probably wouldn’t watch it, but it’s the sort of silly thing that would probably do well.

          2. Maybe Presidents should have been granted some kind of immunity from prosecution while in office. It just happens that they weren’t.

            Alexander Hamilton seemed to disagree in Federalist 69:

            The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.

            as well as in Federalist 77 where Hamilton claims that it is fairly deducible from the constitutional structure that the President is liable to criminal prosecution subsequent to impeachment and removal from office:

            The answer to this question has been anticipated in the investigation of its other characteristics, and is satisfactorily deducible from these circumstances; from the election of the President once in four years by persons immediately chosen by the people for that purpose; and from his being at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law. But these precautions, great as they are, are not the only ones which the plan of the convention has provided in favor of the public security. In the only instances in which the abuse of the executive authority was materially to be feared, the Chief Magistrate of the United States would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?

            In addition, Gouvemeur Morris stated at the Convention that “[a] conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments, was that the latter was to try the President after the trial of the impeachment.”

            1. Hamilton and Morris were of course talking about federal, not state, prosecution. That’s obvious both from context and in Morris’s case from the text, since the Supreme Court would not be trying the president after impeachment if it were a state offense.

              1. So when Hamilton spoke of the limitation on criminal prosecution until after the removal of the President from office as “precautions…which the plan of the convention has provided in favor of the public security,” you think that he saw no limitation on criminal prosecution by the states since this would not impact public security? You think that Hamilton was not concerned about state infringement on federal power, and that although he said in Federalist 23 “that it is both unwise and dangerous to deny the federal government an unconfined authority, as to all those objects which are intrusted to its management,” he would have been OK with having a state judge issue orders to the President and even remove him?

                  1. Remove him from the White House and confine him in prison, with visitors and communication restricted.

                1. Hamilton was rather the high water mark of the imperial presidency among the Founders. Acting like he’s the be-all end-all of what the presidential powers should be is an predictable tactic.

        2. That’s a different issue. Seems to me in that circumstance, an indictment could be sealed, the trial stayed, or reporting to the penitentiary delayed until the President was out of office. Plenty of stops along the road before going to jail. The Clinton precedent refusing the stay of a civil matter suggests that the incidents of litigation are insufficient distractions from the office to justify immunity. More interestingly, the trial court which accepted the claim of presidential immunity (reversed by a unanimous Supreme Court), stayed only the civil trial, not discovery, which would include the subpoena of documents and witnesses.

          1. “Seems to me in that circumstance, an indictment could be sealed, the trial stayed, or reporting to the penitentiary delayed until the President was out of office.”

            Yeah, that argument was made, as I recall, in regards to some of the criminal matters in the Clinton administration. And then they were never followed up after he left office. Justice delayed is often justice denied.

            1. The independent counsel expressly declined to prosecute Clinton in view of the significant sanctions he had already suffered citing:
              (1) his admission of providing false testimony the United States District Court;
              (2) his acknowledgement that his conduct violated the Rules of Professional Conduct;
              (3) the five-year suspension of his license to practice law and $25,000 fine imposed on him by the Circuit Court;
              (4) the civil contempt penalty of more than $90,000 imposed on President Clinton by the federal court for violating its orders;
              (5) the payment of more than $850,000 in settlement to Jones;
              (6) the express finding by the federal court that he had engaged in contemptuous conduct; and
              (7) the substantial public condemnation arising from impeachment.
              Folks that lie in lawsuits get sanctioned all the time, but are rarely prosecuted. Lawyers that do so get their licenses pulled, but, again, are rarely prosecuted. In short, the “if other people did it” argument was not a slam dunk in favor of prosecution.
              Personally, I’d rather see a successful impeachment and removal than prosecution, and, if that were to happen, I’d tend to favor no further sanctions. In other words, I think Ford did the right thing pardoning Nixon, and Obama did the right thing not prosecuting the Bush administration for torture, despite the objections of his base. Even if not impeached and removed, I’d still feel a little queasy about prosecuting a former president, though I suspect a complete lack of accountability or contrition could change my mind.

              1. Contrition? From Trump? About anything?!?!???? Whew . . . thanks for the laugh–I have not chuckled so hard in years.

              2. I’d tend to favor no further sanctions.

                In balance, I agree. The cost paid, that occasionally an individual gets away with something, is more than balanced by avoiding sliding down the slope to full-on banana republic status where each administration finds reasons to jail its predecessors.

      2. What happens if every yokel state prosecutor tries to tie him up, seize tax records to embarrass via leaks, and so on?

        I’ll admit this is a highly theoretical thought experiment.

        1. What happens is a real mess that the Constitution that got written and ratified just happens to not address.

          I would suggest that a constitutional amendment would be in order, but Congress seems to have given up on originating constitutional amendments.

          1. That’s too much like work, or even worse, a vote! Then they might have to actually be on the record about something, and we all know where that leads.

        2. Ideal, the president subjected to that would order the military to wage war against these yokel state prosecutors. Drones, belt-fed machine guns, helicopters, rocket propelled grenades, and novichok agent would quell these liberal morons in a New York minute.

      3. Indeed, I would agree.

        As a political matter, unless it’s a clear cut investigation, these types of investigations of national politicians are on shaky ground. Especially if done for political purposes.

        Imagine, Biden manages to win the Democratic nomination. But then the AG of Texas, for example, decides to investigate Biden due to his cooperation with his son, and nebulous affairs in China or Ukraine. They find a flexible Judge, and arrange for an arrest warrant, arresting Biden during the course of the campaign, while raiding his campaign headquarters, and seizing any and all information. Which is “leaked” to the public.

        Horribly really bad things. But is it “legal” and is there any practical way to stop it?

    2. It’s not just VCers. There seems to be an almost total blackout on any impeachment-related coverage over on the “news” side of Reason. It comes up every once in a while on their daily digests, but that’s it. It’s too conspicuous an absence to be anything other than the result of an editorial diktat not to cover or opine about it.

      The VCers have circled closer to impeachment-related issues, but they haven’t said a lot about it either. I have a hard time believing that Eugene or certain other VCers would agree to editorial control by Reason, as a condition for their migration, but who knows…

      1. It would be nice to get Orin Kerr’s take on many of these issues since he is the resident criminal law and procedure expert. He’s also a computer law expert and former engineer, so I would love to get his take on the whole Ukraine has the DNC/Clinton server insanity.

        1. While I would always welcome whatever Orin would have to say on the topic, since he’s one of the more independently-minded and thoughtful VCers, I am not sure that criminal law/procedure has much direct relevance to the House inquiry. He could explain why the Republicans’ complaints totally lack merit, perhaps?

        2. If you want Orin’s take, follow him on Twitter. His tweets on these matters are frequent and widely followed.

      2. Don’t see why that’s surprising for the main Reason page. The impeachment is not a core “Free Minds, Free Markets” issue, and bringing it up creates a major distraction from what they’re trying to do.

        1. You don’t think there’s a distinctively libertarian take on what’s been going on?

          1. “A pox on both their houses.” – the canonical libertarian take on absolutely anything that isn’t relevant to cutting spending or defending civil liberties.

          2. I think understanding the monstrous use of government investigation to hurt a political opponent, in violation of the spirit of several amendments, is being given short shrift.

            How the parties flip flopped on how they value these things from Bill Clinton to now is of limited attention, unfortunately. And it will happpen again.

            There are serious things that VC could look at that is right up their alley.

  2. Worst Post ever!

    1. Until the next one whose conclusion you disagree with!

      1. That’s the joke.

  3. Aren’t well all kinda playing coy here, that this is really about getting Trump’s tax information for political purposes, because if he had last to Hillary, we wouldn’t be having this debate.

    1. Not for “political” purposes — for conflict of interest purposes, or maybe even treason purposes. Particularly since every other candidate (such as Hillary) has disclosed it and Trump has lied about his reason for not doing so.

      1. “Not for “political” purposes”

        LOL Did you fall on your head recently?

        Any tax returns given in response to this subpoena will be illeglly leaked within a week. The tax returns are The Resistanc!!!! holy grail.

      2. The government of NY has access to Trump’s tax returns already. The federal returns, that is, the portions attached to the NY state returns, probably have been (or are being) audited by NY state’s tax agency.

        This is less a question of finding out whether Trump has misreported information on his tax returns. This is more a question of getting access to these returns in a way such that disclosure of the information on the returns won’t be a violation of federal law (26 US Code Sec. 6103) and state law.

        1. Right, it’s about getting the returns into hands where they can be leaked without risk of legal consequences. Right now chain of custody is too easily traced, they need those returns spread around to the point where, WHEN they’re leaked, who did the deed can’t be proven beyond a reasonable doubt.

          1. As I recall, there were lots of posters at the VC who were SURE that New York state would leak Trump’s tax returns. Lots of people thought, “During the end of the 2016 election, as some sort of ‘October Surprise.’ ” Did not happen, as we know. Then, people thought that–what with all those Deep State actors, the tax returns would surely be leaked. Nope, didn’t happen.

            Now, Brett, you seem to be saying, “Well, okay, the people with current access to the tax records have behave ethically. But not because they are ethical…only because they have been afraid of being found out after the fact. Once the pool of potential culprits is wide enough, then those tax records will surely be leaked THIS TIME.”

            And maybe you’re right. But it’s an awfully convenient shifting of the goalposts, since it means you get to use the same excuse each time someone wants his tax returns. “Yeah, I guess that X did not release his tax returns. And then, Y did not leak them either. And then, neither did Z. But now that Q wants to see them–Q will totally leak them, since NOW the circle is wide enough for the leaker to avoid punishment.”

            My view: No candidate should be required to release past taxes. BUT…if you do promise to release them, then you should be barred from whining about people trying to see them for the next 4/8 years (assuming you win the election(s)).

          2. Yes, and the point of leaking them is to harass people with whom he’s done business.

          3. Leaking is easy for a member of Congress thanks to the Speech and Debate clause, they can just read it into the record like Mike Gravel did with the Pentagon Papers in a Senate subcommittee meeting. State legislators though don’t have all the same protections. They have whatever immunities their state constitutions provide within the state, and are immune from federal civil liability for acts performed in the normal course of their legislative duties (Tenney v. Brandhove, 341 US 367 (1951)), but not from federal criminal liability (US v. Gillock, 445 US 360 (1980)).

      3. for conflict of interest purposes, or maybe even treason purposes

        How are either of these remotely within the purview of state law?

        1. And isn’t the more reasons you list suggestive of it as a fishing expedition, betraying its real motivation as to get a political opponent?

          Donald “Lock her up” Trump isn’t above proudly the exact same behavior, of course, which makes the whole situation disgusting.

      4. There has to be a fallacy for this type of argument. You’re basically basing all this shit on your wingnut Russia conspiracy. When we get into the procedural muck, you hope everyone forgets the original issue and focuses on a red herring like whether or not a state can arrest a sitting President instead of discussing why and how this frivolous suit hasn’t been tossed yet.

        1. Well, for one thing, because it isn’t a suit. It’s a criminal investigation. (Unless you meant to refer to Trump’s suit to enjoin the investigation; that one is frivolous.)

      5. Do you know the requirements for treason? Do you k ow it is not a requirement to disclose tax returns? Do you know tax returns are legally deemed confidential? Or are you just stupid?

        1. Why do you focus on one law, which says that the returns are confidential in general, while deliberately ignoring a crystal-clear law that says that certain parts of Congress SHALL be given ANY tax return (with no exception for good will or bad will, good or bad motives, justified or unjustified reasons).

          I presume you fully support, say, Free Speech rights, for people chanting protest slogans in perfectly good faith and and also for those chanting in totally bad faith. Yes? Your fidelity to only the laws that help your favored politician is rather puzzling.

          1. Yeah, and Republicans have done plenty which liberal judges have overturned because of supposed bad motives, or “animus” as the drunken Kennedy calls it.

          2. Why do you focus on one law, which says that the returns are confidential in general, while deliberately ignoring a crystal-clear law that says that certain parts of Congress SHALL be given ANY tax return (with no exception for good will or bad will, good or bad motives, justified or unjustified reasons).

            So Congress can proudly request a tax return of a specific political opponent to embarrass them and hurt them, in violation of constitutional principles that everyone is equal before the laws you blabber about?

            At least the congress itself lied tbe sophistry it was about making sure the IRS was doing its job.

            1. Congress can do a lot of things–a near endless list of them really–that they don’t do. Sure, they’re not above a little partisan chicanery, but there’s usually a price for that.

              Current example: The investigation into Trump’s Ukraine fiasco is using discovery rules written by and passed by the prior Republican-majority Congress. All those blustering blowhards with their silly cell phones trying to get into the proceedings claiming the process is fundamentally unfair (12 of them actual committee members who are allowed inside anyway…but I digress) are just complaining about their own preferred process.

              #HoistedPetards

    2. Well, of course we wouldn’t; even Trump wouldn’t be so audacious as to try to claim an imaginary presidential immunity if he wasn’t president.

      1. Then you’re kinda conceding that this has very little to do about proper oversight or investigating crimes, but presidential politics.

        1. Huh?

          I see no concession.

          If Trump weren’t President Congress wouldn’t be exercising oversight wrt him.

          The NY AG, on the other hand, might well investigate him for various crimes either way.

          1. The naivete and blind faith in our political machines is painful to read.

        2. Yeah; that really wasn’t what I was conceding. I was making fun of the dumb argument that we wouldn’t be having a debate about presidential immunity from investigation if Trump had lost to Hillary.

    3. Are you taking the position that, once the tax returns are obtained, that these criminal prosecutions will cease, and any plans for legislation will be dropped, because the primary goal will have been achieved?

      I think we can readily concede that the politics is playing a big role here. But that doesn’t mean that Congress (or New York) won’t find things there that are worth legislating against or prosecuting. If Trump’s tax returns showed he was significantly indebted to the Russian government, say – wouldn’t that be something we’d want to know, and possible regulate against? If they showed he had committed fraud, isn’t that something we’d want him to be held accountable for?

      1. Well, of course they’re going to continue going after him on every available front, regardless of progress along any other front. The goal here is to remove him from office, and punish him so horribly for having won, that going forward anybody thinking of running for President as a Republican and actually trying to win will think again, and find something else to do with their time.

        They won’t stop until they’ve destroyed him, or themselves been destroyed, and if legal means don’t work, make no mistake: They’ll try to just outright murder him.

        1. Or, having filed a false document in NY related to hush money payments to a porn star–a possibly felony–the state of New York is just doing its job to fight crime.

          Remember the good old days when Republicans ran on “law and order” platforms and were staunchly anti-crime?

          1. What false document are you imagining?election violations would be under purview of the feds, not state.

            1. “There could be a conspiracy to cause false entries in the accounting of the Trump Organization by disguising hush-money payments as legal fees, and that could be the basis for separate charges in New York State,” — Duncan Levin, former federal prosecutor who specializes in financial crime.
              Vox. March 1, 2019

              Election violations are under the purview of the governmental body that passed the laws that were violated. If a state passes election laws, Trump could run afoul of those just as easily as he did the federal laws.

        2. Yeah, this is delusional. Take your meds, Brett.

          1. Because we dont have many examples of criminalization of politics right? No Steven’s, no perry, etc? You just cheer it on.

        3. You’re delusional, Brett.

          “They” won’t try to murder him. You’ve said yourself that Trump’s immunity argument is horseshit. But now you crawfish away, essentially claiming that any investigation is patently phony.

          anybody thinking of running for President as a Republican and actually trying to win will think again

          I don’t think so. Was there any sort of effort to impeach Bush, despite the Iraq fiasco? Would McCain or Romney have faced the kinds of investigations Trump is facing?

          No. The reason he is in trouble is that he is a lying, corrupt, scumbag who is too incompetent to cover his tracks.

          And Republicans complaining about investigations is rich. Just look at this ludicrous Ukraine business, or Benghazi, or Whitewater.

          1. You mean, they won’t try to murder him, the way they didn’t try to murder the House Republican caucus? Or have you already forgotten that?

            You don’t portray a President as Literally Hitler, encourage over the top hatred of him, make assassination art into a mainstream genre, and not expect assassination attempts.

            At this point people with a burning hatred of Trump still think he’s going to be impeached and removed for his “obvious crimes”. When the impeachment fails, that’s when the attempts to kill him will start in earnest.

          2. They’ve already tried once. Michael Steven Sandford, 2016

            1. Yes, that was a conspiracy.

          3. Was there any sort of effort to impeach Bush, despite the Iraq fiasco?

            Yes.

            Would McCain or Romney have faced the kinds of investigations Trump is facing?

            Yes.

        4. Who is the amorphous ¨they¨ to whom you ascribe propensity to murder? Please be specific.

        5. They won’t stop until they’ve destroyed him, or themselves been destroyed, and if legal means don’t work, make no mistake: They’ll try to just outright murder him.

          With that suggestion, Brett finally joins respectable company. No less a figure than Ben Franklin agreed with you, Brett. In a discussion about impeachment, Franklin observed that without it, the immediate remedies for malfeasance by a president were all terrible: civil war, revolution, or assassination.

          So take impeachment out of the picture—as Trump is trying to do—and which remedy would most folks, including Trump’s backers in the Senate, prefer to fall back on?

          Trying to thwart the impeachment of an innocent president is really stupid, and really dangerous. I cannot understand why anyone would want to do it, even Trump himself. Why not cooperate, and go for the exoneration? Almost everyone thinks it is inevitable, right?

        6. Hmm. I’m not sure why people are so shocked, shocked, that partisan opposition doesn’t disappear with a presidential election. When hasn’t the out-party–at least since Gingrich–gone after the president “on every available front?” We’ve just never had a president who whined so much about it. Usually the crybaby and conspiracy stuff is left to surrogates. Any whiff of scandal is going to be seized upon–when has that not been true? As we say in Chicago, politics ain’t beanbag. And really, the guy who said Ted Cruz’s dad was involved in the JFK assassination and championed birtherism (i.e. an attempt to “undo an election” and “treason” in the Trumpian lexicon) is complaining about allegedly “unfair attacks”? As they say everywhere, if you can’t take it, don’t dish it out.

      2. “tax returns showed he was significantly indebted to the Russian government”

        Why would such a debt be on a tax return?

        A return is a summary of income, credits and deductions. They don’t list sources of income by payor nor debts by payee unless.

        1. They actually do list sources of income by payor, at least in the case of personal returns.

          Look at your Schedule B sometime

        2. Liberals are too stupid to understand more than a 1040 ez.

          1. Bob is a liberal?! Who knew!

  4. How far from the pound the table and yell like hell phase of this judicial proceeding are we now?

    1. Ask Associate Justice Kavanaugh.

    2. Both sides have been pounding on the table so hard that the table broke…several weeks ago.

  5. As to the Fifth Avenue example, the lower court basically agreed with the supposition that a serious-enough criminal process directed at the President could fall within an idea of such temporary immunity.

    Those qualities (seriousness, requiring Presidential action) are absent for this subpoena, and that’s why the lower court declined to accept an overly expansive theory of immunity in every criminal process.

    If you cabin the President’s immunity argument so that it’s not totally free-ranging, it could still be that the Fifth Avenue hypothetical is a winner for him under both his theory and the lower court’s theory (even if this subpoena is not).

    1. As to the Fifth Avenue example, the lower court basically agreed with the supposition that a serious-enough criminal process directed at the President could fall within an idea of such temporary immunity.

      Perhaps from prosecution, but not from investigation.

      1. Given the timeline of these kinds of investigations, prosecution might not happen until after January 2021. If Trump loses the election, he won’t be able to claim immunity.

        1. Well, maybe you’ll recall Lawrence Walsh filing an indictment against Weinberger mere days before the election, for actions which were already beyond the statute of limitations. Naturally, the indictment mentioned Bush as an unindicted co-conspirator.

          Then right after Bush had lost, Walsh suddenly noticed that the statute of limitations had passed, and dropped the indictment.

          So there IS precedent for dropping purely political prosecutions once the political motive becomes redundant.

          But I tend to think that they’ll continue going after Trump after the election, win or lose. They’re desperate to punish him for winning that election, and to put any potential Republican nominees on notice as to what awaits them if they should win against a Democrat.

          1. Well, maybe you’ll recall Lawrence Walsh filing an indictment against Weinberger mere days before the election, for actions which were already beyond the statute of limitations. Naturally, the indictment mentioned Bush as an unindicted co-conspirator.

            Then right after Bush had lost, Walsh suddenly noticed that the statute of limitations had passed, and dropped the indictment.

            No. Weinberger was indicted six months earlier. A few days before the election, a charge was added to that indictment. It was not “dropped.” The court dismissed it after rejecting Walsh’s argument that the charge related back to the prior charges. Four other charges remained.

            Bush then pardoned Weinberger a few weeks later.

            1. Brett,

              Do you feel even a little bad about how grossly you misrepresented the Weinberger situation? Do you have the self-awareness to understand that you are contributing to the current “feelings > facts” political environment? Is that your Putin-like purpose? To flood the field with “alternative facts”, so that ordinary people are overwhelmed with competing versions of reality and, so, operate primarily on emotion and confirmation bias? Or are you a victim of people manipulating you into just leaning in to your preconceived ideas?

              I barely took you seriously before. That was just egregiously bad faith or utter cluelessness. Either way, it is apparent you can’t be trusted to be honest.

          2. Or, you know, we could “go after Trump” because he actually committed crimes. I’m all for placing every presidential nominee, Republican or anyone else, on notice as to what awaits them if they do to the office and to our national reputation what the current president has done.

            I’m sure it’s all the rage with the Fox & Friends crowd to pretend this is about punishing conservatives but if they had even half the outrage for the crimes their guy has committed as they did for the ones they thought HRC had committed, I’d be more optimistic about our future.

  6. Aside from everything else, it’s a little too much to say the original subpoena for Trump’s tax records doesn’t affect him or distract him from his duties because it is strictly third parties and doesn’t require Trump to actually do anything.

    “We’re going to charge your wife with conspiracy to be a traitor. Sit back and relax.”

    “We’re going to eminent domain your hotels. Sit back and relax.”

    “We’re going to impeach your ass. Sit back and relax.”

    1. Seeing as the NY AG isn’t in a position to do any of those things, I guess we can conclude there’s no problem.

    2. What’s it going to do, cause him to lose concentration while he sits on his ass listening to the BS on Fox?

      That sounds like a positive to me.

      Anyway, the President is always distracted from his Presidential duties by things like running for reelection, which are much more distracting than this.

      1. Bernard,
        You’re totally forgetting the countless days of playing golf. I hear that can be pretty distracting. Right now, he is playing golf about 1 out of 5 days, I think. If he has to think about a 3rd party releasing his own tax returns, he golf-playing-days might go all the way down to only 1 time per week. As bad as being in a gulag, in other words. Or he might have to cut down watching Fox News from 5 hours a day down to 3-4 hour a day. Oh the horror! #clutchingatpearls #gettingthevapors

        1. Remember when Judicial Watch made a huge deal out of Obama’s golf games? It was on their website constantly as they battled dramatically with the Secret Service for travel records to prove we’d elected a lazy president.

          Trump is about to surpass Obama’s 8-year golf record in less than 4-years. A quick jaunt over to Judicial watch shows nothing about it on their main page. A search shows no information comparing Obama with Trump on golf expenditures. Apparently, white guys who golf a lot aren’t as interesting as black guys who golf less.

          1. yeah, BlackManBad…..OrangeManGood. So-called Ever Trump conservatives are appalling in their complete lack of integrity.

            Also, deficits. They don’t care that we are running huge deficits in good economic times? What happens when the business cycle cycles? We’ve already cut taxes and jacked spending under Trump, so then what to make the next recession less severe? Plus, Trump keeps agitating for lower rates, further eroding our tools for combating a recession. Trump and his enablers are knee-capping future us.

    3. Heat. Kitchen. Why should we trust that someone has the capability to be president and face down nuclear threats, if the thought of someone seeing his tax returns puts his panties in a bunch?

    4. Buncha illiterate TDS victims can’t read for beans. I was ONLY commenting on the ludicrous claim that because Donald Trump “doesn’t have to do anything”, grabbing is financial records from a third party for a fishing expedition is not a distraction and thus he has no reason to worry and no standing to object.

  7. Where is there ever immunity from investigation for a person?

    Immunity from prosecution I’ll buy due to:

    Jurisdictional questions (state vs federal)
    Double jeopardy
    Diplomatic immunity

    But not immunity from investigation.

    1. Guess I could also add if someone is actually granted immunity – but even then they are not granted immunity from investigation.

      1. Unless their names starts with b and ends with iden.

    2. You get immunity if you run as a democrat for a 2020 election or are the son of someone running.

    3. Perhaps the Second Circuit will address the pernicious fiction of immunity from prosecution while in office which the Office of Legal Counsel cut from whole cloth in 1973.

  8. The president is elected by electors representing states. This is arguably an example of one state deciding it is not content with the outcome and seeking to undo the election by other means. I wonder what SCOTUS will eventually say?

    1. How are they trying to undo the election?

      NY State can’t impeach him. Besides, all this “undo the election” bullshit is nonsensical. If Trump is impeached and removed the election hasn’t been “undone.” The President will have been removed for cause by a procedure specified in the Constitution.

      1. You can just say “THIS coup is OK”

        1. Is it really much of a coup if the actual result of removing Trump through up or down votes after hearings and a trial presided over by the Chief Justice is that his politically aligned running mate gets to be President?

        2. As opposed to the coup that happened in 2016?

        3. Impeachment is a coup in the same sense that “property is theft.” That is, you have to posit a system of law and morality that is counter to our constitution. In other words, it’s a slogan for some counter-constitutional form of government, not an argument under it.

          1. Dems SWORE it was a coup back in 1999. I guess times have changed.

            *shrugs*

            1. Wasn’t true then. Isn’t true now. “GOP is just as bad as dems”–not a great argument and it was not, I thought, the point you were trying to make. If it was merely rhetorical hyperbole to make the point that (a) Trump did nothing wrong; or (b) whatever he did wrong should not be deemed impeachable, just concede hyperbole instead of insisting it is true as a matter of fact or law.

            2. Not just a coup, but a “lynching.” But Clinton was our first black president, so maybe that was OK, and not at all racially insensitive, the way it is when Trump uses the same word.

      2. Undo it by depriving the other states that elected him of his elected service.

        You can argue that doesn’t “undo” if you want. Counter argument is “yes it does”.

        1. Again, Ben.

          The State of New York has no authority to remove Trump from office.

          Only impeachment by the House and conviction by the Senate can do that.

          Did you get a hold of that straw?

          1. See counter argument above.

            Reply in all caps if you wish to be referred to counter argument again.

            1. What bernard is telling you, Ben, is that nothing that the State of New York does is going to result in “depriving” other states of his elected “service,” if that’s the right word for it (“self-service” might be more apt).

              It might embarrass Trump. But then he’ll just throw a Presidential Twitter-Tantrum and keep on being the worst president in modern American history.

              1. No all caps. Yet I still refer you to counter argument above.

                Have you heard that investigating people is a high crime if it might help a campaign? These NY state investigators should expect an FBI raid any day now. I can’t believe you are defending such high crimes.

                1. What counter-argument?

                  You haven’t made one.

        2. Even if you want to argue that lawful impeachment is an attempt to “undo” an election, it is one explicitly provided for in the Constitution.

        3. Query: was Birtherism, and the suits filed with respect to it, an “attempted coup” under your definition? If not, why not?

  9. I’d think there would be *no* immunity for a criminal suspect simply because he’s President, just as there should be no immunity for a criminal suspect simply because he used to serve on a federal jury.

    But suppose that a federal jury renders a controversial verdict, and the state in which the jurors live specifically decides to retaliate for that verdict by singling out the jurors for criminal investigation.

    Or – and this is hypothetical – suppose that the authorities in the state where a President lives don’t like the fact that he’s President, don’t like his policies, and basically wish another person were President. So motivated by this, the state authorities commence a criminal investigation of the President.

    Constitutional?

    1. Didn’t the AG run on the promise of specifically getting Trump?

      Are comments made while running for office ONLY relevant if said by Trump?

      1. So your claim is that the President is immune from state investigation if it can be shown that the AG doesn’t like him?

        1. Malice only counts against Trump [“Muslim” ban], not against his foes.

          the AG’ s comments taint the investigation, show that it is a fishing expedition by a biased prosecutor.

          I thought you were against that when it involved Ukraine?

          1. “the AG’ s comments taint the investigation, show that it is a fishing expedition by a biased prosecutor.”

            So you evaluate whether the source of the “evidence” is reliable, and if isn’t, you discard it immediately. Isn’t that the party line with regard to the Steele dossier? On the other hand, if you have the subject on tape saying “of course we did that. We do that all the time”, maybe you take that seriously.

        2. Either bias makes perfectly legitimate exercises of power illegitimate or not. You cannot have it both ways.

          The NY AG was markedly more anti-Trump than Trump ever was “anti-Muslim”.

          …and, mind you, people like you are claiming that seeking to investigate a candidate for President is illegal…

          1. You plainly don’t understand the complaint.

            It’s fine to investigate a candidate if there is reasonable basis for doing so. You refer it to the FBI and it goes from there. You don’t send your personal lawyer to another country to get them to investigate, under threat of losing military aid that has already been authorized and appropriated by Congress.

            I guess that’s too hard for Trumpist nitwits to understand.

            1. “It’s fine to investigate a candidate if there is reasonable basis for doing so. You refer it to the FBI and it goes from there. You don’t send your personal lawyer to another country to get them to investigate, under threat of losing military aid that has already been authorized and appropriated by Congress.”

              …and if zero threat actually exists or is communicated?

              I mean, sure, investigating a guy who openly bragged about withholding approved loans has to be wrong, even though he didn’t involve the FBI or anything.

              I suppose consistency is too much to ask.

              1. The “deliverable” in the now established quid pro quo was a statement that investigations were being opened–something that law enforcement usually does not do. Investigations are opened and closed everyday without fanfare. Apparently Ukraine had already agreed to do the investigations, but that wasn’t good enough. Such investigations, which in all likelihood would find nothing were worthless to Trump absent the public statement legitimizing conspiracy theories that even Barr decided are too tenuous to pursue. Had Trump’s demands been backed by the G-7 as well as senators from the opposing party, and been about corruption-fighting generally–all as in Biden’s case–you might have point.
                Have a little sense. If there was any basis for an investigation, Barr could subpoena Hunter Biden’s records or request Ukraine for records and assistance. Giuliani could turn over the “evidence” he has gathered–call it the GOP’s Steele Dossier. Instead, the DOJ has distanced itself from the entire stink. Who knew that Barr is a never-Trumper infiltrated into the administration?

              2. The Ukraine asked the Trump administration to file a formal request for investigation. If Biden’s kid was really guilty of the stuff Trump & Friends said he was, it would have been simple enough for them to do that. Trump didn’t do that. Instead, he requested that the Ukrainian president, who is currently trying to keep Trump’s pal Putin from taking over more of his country, publicly state that Biden was under investigation. Trump wanted it to look like the Ukraine had come to that conclusion on their own–which they hadn’t–but a few hundred million of military aid to help stop the Russian invasion is one heck of a inducement.

            2. You don’t send your personal lawyer to another country to get them to investigate, under threat of losing military aid that has already been authorized and appropriated by Congress.

              Right, you send your VP.

              Trump needs to get his head in the game.

            3. “It’s fine to investigate a candidate if there is reasonable basis for doing so.”

              Even if there’s a reasonable basis for doing so, it looks shady, so you make absolutely sure your fingerprints aren’t found anywhere in the investigation. Say, for example, that known agents of foreign governments keep trying to contact the campaign staff and/or the candidate… (this is hypothetical, of course, since Obama wasn’t running for re-election.)

          2. “The NY AG was markedly more anti-Trump than Trump ever was ‘anti-Muslim’.”

            Nobody thinks that prosecutors shouldn’t be anti-criminal. It’s kind of their job.

            “people like you are claiming that seeking to investigate a candidate for President is illegal…”

            “Seeking to investigate” isn’t the problem. Arm-twisting a foreign nation to do it for you is the problem.

            Let me clear this up for you. If there is a reason (objectively) to believe that either of the Misters Biden acted illegally, they should be investigated. If either of them is guilty of acting illegally, he should be punished.

            But the call for investigation is super-sketchy. First off, holding up the aid to the Ukraine unless they act as the President wishes. He’s free to do that if it’s HIS money, not so much when it’s OUR money.
            Secondly, the timing. Why did he wait three years to suddenly take an issue in this matter? Why hasn’t the American law-enforcement community been working on this for 4 years now? Or did they work on it, find nothing, and oops, that’s not the narrative the President wants?

  10. What does it actually mean to be immune to “an investigation” anyway? Although criminal investigations that have any merit at some point will probably involve some sort of formal legal procedure, you don’t technically need any of that to begin to “investigate” something.

    Let’s say I’m a detective wanting to investigate a shooting on Fifth Avenue where I suspect the President. Presumably under his theory, I would not be permitted to get a search warrant, impanel a grand jury, or subpoena witnesses or documents.

    But would it also mean I wouldn’t be permitted to examine the crime scene? Ask for witness statements? Send a shell casing and blood for forensics? Have the medical examiner perform an autopsy? Go looking for other witnesses? Etc.

    Does it magically kick in at some formal process? Like when an unsworn statement becomes a sworn statement through an affidavit?

    Are witnesses barred from volunteering information and evidence. If one comes up and says that he saw President shoot someone, do I have to ignore it and tell him to go away?

    And lets say a legal process is instituted after the President leaves office and the President is eventually tried. Are witnesses who provided information during his period in office subject to exclusion because the President was immune from “investigation” during that time?

  11. If, as seems likely, the 2d Cir. comes down against Trump’s position, then we’ll have a nice, clean precedent which surely will be used against every future president from any party.
    Is this a “bad” thing? Not necessarily. I this a “good” thing? Maybe – it will fill in an apparent gap in the law governing presidents. The problem is, most of this could have and should have been handled through the political process, i.e., an impeachment. I suspect the Democrats, in addition to impeaching Trump will surely try to prosecute him and, as is their usual way, wildly overplay their hand.
    I cannot wait for the DA in some rural county of some red state to go after [insert name of liberal candidate here]. Recall, there was a Texas DA who had a grand jury indict GW Bush and some other members of his administration for something or other, and that indictment went away quietly and quickly. When some liberal gets tagged, the howls that surely will come from the left will be deeply amusing.

    1. What do you suggest should happen if the President is a suspect in a murder?

      1. Are we facing that concern?

        No?

        Then why bring it up?

        1. Because the President’s lawyer claims he couldn’t even be investigated for that. It’s the basis of Trump’s challenge to the subpoena.

        2. One thing about the Nixon era that I didn’t learn about until recently is that G. Gordon Liddy, Charles Colson, and E. Howard Hunt actually seriously discussed murdering columnist Jack Anderson. (They discussed poison, an LSD overdose, and a car “accident”) Liddy claims that the administration immediately shot down the idea, but E Howard Hunt seemed to confess that there was actually more administration direction to “neutralize” Anderson. Colson denies this ever happened.

          So it’s not beyond the realm of possibility that Presidents or their underlings might be involved in a murder.

        3. Then why bring it up?

          Because that’s Trump’s (lawyer’s) argument.

        4. There’s no statute of limitations on murder.

          When Chelsea Clinton is elected president in 2032, then Texas Attorney General Jacob Wohl will reveal that, like Michael Corleone did to Virgil Sollozzo, Chelsea took it upon herself to free Hillary from the threat of Seth Rich.

          1. If he waits until she’s elected, there won’t be much he can do about it.

    2. Trump appears to have broken NY state law and potentially committed a felony in that state as a citizen of that state while doing business (like paying off a porn star in order to protect his campaign) in that state. Are you suggesting that he should be immune from criminal acts he committed in that state prior to being elected?

      1. What is allegedly criminsl about paying off sone porn star?

        1. The argument is that paying off t he porn star helped the campaign, so it was an illegal campaign contribution. Of course, if he’d done it the “right” way and had the campaign pay off the porn star, they’d be screaming that he was using campaign funds for personal expenditures.

          1. Here’s the deal… there’s no right way to pay off a porn star to be quiet about your marital infidelity if you’re running for public office. You have to keep promising a payoff after you’re no longer running, and hope the porn star believes you’re good for it. Or, you could go in halfsies on the book deal.

          2. By that logic, biased media reporting is a campaign contribution.

            1. Fox News wants you to stop poking around in this area.

        2. What Michael Cohen pleaded guilty to and what John Edwards got unsuccessfully prosecuted for: campaign finance violations. And, depending on the details, possible money laundering and tax fraud. For example, if the reimbursements to Cohen, denominated “attorney retainer” payments on the books were deducted as a business expense, could be tax fraud. Can’t deduct one’s personal mistress costs as a business expense even if you funnel it through a lawfirm.
          Money laundering would, I think be dependent on a campaign finance violation. I.e. mischaracterizing the reimbursement of Cohen.

      2. Are you a deficient autistic?

  12. Sounds like the President could make his life a lot easier by dragging Congressional Democrats to Fifth Avenue and lynching them in the middle of the street (by which I mean murdering, the actual definition of the term). Do this to enough Democrats and the votes for impeachment won’t be there. And, you can’t be investigated for the murders, so you can go to doing your thing while in office. That’s one problem solved.

    The next problem is how to remain in office permanently so that you never have to answer to the crimes. I’m not completely sure how this could be done but given that the President is playing in God-mode when it comes to committing crimes, I would think there has to be a way. Maybe demand a series of constitutional amendments and murder any Member of Congress who doesn’t support them. That might be one way of getting more sympathetic members into office. Maybe just start murdering everyone in the public who doesn’t support you, employing some efficient technique that kills lots of people at once. If your immune from criminal laws, then the imagination is the only limit on what you can do.

    This has the makings for a law review article; “How Criminal immunity of a Sitting President Undermines the Constitutional Order.” Throw in 400 footnotes and you got yourself a publication!

    1. “The next problem is how to remain in office permanently…”

      IIRC there’s nothing in the Constitution that prevents an indefinitely long U.S. Presidency due to repeatedly getting elected to the Vice Presidency, then succeeding to the Presidency when the VP becomes ineligible before Jan 20. (Admittedly a lot of folks would get their backs up about this by the 2nd or 3rd iteration; if they got too uppity they’d presumably have to, er, become ineligible as well:-).

      1. Oops, VP -> President-elect

      2. 12th amendment: “But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

        22nd amendment: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”

        Together this means that, once you’ve served as President more than 6 years, you’re constitutionally barred from being VP.

      3. Sorry to spoil your scheme, but not so. The 12th Amendment:

        But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

        1. He wouldn’t be constitutionally ineligible to the office of President. He’s be ineligible to being *elected* president another time. Nobody’s talking about electing him president a third time; they’re talking about having him succeed to the presidency.

          1. Ah, you got me there. It’s an argument that has popped up more than once over time and has significant though not universal support. Have a gander at this article from the Volokh archives.

            1. Interestingly, the question Eugene raised in the referenced article:

              The question, then, is this: Does “constitutionally ineligible to the office of President” mean “constitutionally barred from being elected to the office of President,” or “constitutionally barred from serving in the office of President”?

              , while it *was* relevant to the question of the hour – whether the Constitution permitted Bill Clinton to be elected Vice President after being elected President twice (to which the answer is No under the 1st interpretation of “ineligible” and Yes under the 2nd) – is *not* relevant to Trump’s becoming President for Life by the scheme described above. Since he’s only been elected once to the Presidency, Trump, as far as I can see, would have a constitutional green light under *either* interpretation.

              1. No, once Trump had served more than two years of an inherited Presidency he would be ineligible for election by virtue of the second part of the 22nd amendment text Brett quoted above.

                1. “once Trump had served more than two years of an inherited Presidency he would be ineligible for election”

                  It’s possible to become Vice President without being elected Vice President.

                  1. It is no longer possible for Trump to do that.

                  2. Ignore that, I misread your comment.

              2. Thanks for the correction Voize, the scheme as described wouldn’t work for Donald under the 1st interpretation. (That said, unless I am totally out to lunch neither interpretation would bar such a scheme for someone who had never been elected President).

              3. Any scheme that requires that many dead bodies is either going to work fantastically (on the basis of the people responsible for stopping such absurdities being afraid of becoming one of said dead bodies) or fail super early on (because dead bodies have a way of clarifying issues).

                Which is to say, the “scheme” quickly means that actual constitutional rules don’t matter, and overly legalistic arguments are ignoring the fact that the scheme relies on assassination and intimidation.

                1. Of course such a scheme would never succeed politically. I was just commenting on what the Constitution allows.

                2. How ghoulish. The scheme could be effected by bribes to resign and involve no piles of dead bodies.

      4. Porfirio Diaz kept getting elected President of Mexico, until the Revolution came along. The settled all this partisan squabbling for several decades through the simple expedient of only allowing one party to exist.

    2. The next problem is how to remain in office permanently so that you never have to answer to the crimes. I’m not completely sure how this could be done but given that the President is playing in God-mode when it comes to committing crimes, I would think there has to be a way.

      It’s not particularly hard. The solution is explicitly in the Constitution.

      1. Why not leave the issue to the agency that already has the returns and could initiate a criminal case if it found any signs of illegal conduct: the New York Department of Taxation and Finance. I think the real motive of this case is to force disclosure of the returns in a way that they can be leaked to the public.

  13. I hear investigating a possible political opponent is a high crime. Arrests of these New York investigators should happen any day.

    Using government resources to make an in-kind contribution to Trump’s opponents this way is extremely serious.

      1. It’s only a good point if you think Trump was investigating Joe Biden and his son, rather than withholding military aid funds appropriated by Congress in order to get a foreign government to do it.

        1. In kind political contributions to Democrats are ok. In kind political contributions to Republicans are high crimes.

          1. It would also be a crime for a democrat to solicit or accept foreign campaign contributions. No one has claimed otherwise.

            1. It is amazing which parts of the laws don’t matter at all when Democrats are involved and which other parts are gravely serious and when applied to Democrats’ enemies.

              1. What’s truly amazing, is that you’d type all of that out and still not realize what a partisan dipshit you are.

          2. “In kind political contributions to Democrats are ok. In kind political contributions to Republicans are high crimes.”

            Why did you hit the reply button to my comment and type that? Do you understand what the word “reply” means?

  14. Judge Denny Chin is a Clinton political hack. I do not understand why the Trump lawyer does not insist on his recusal. The government is immunized when it commits crimes, such as kidnapping people, and keeping them in cages for decades. That is sovereign immunity.

    If the President were not immune, lawfare could be carried out against him, to cancel the result of an election.

    1. Sovereign immunity protects the sovereign, i.e. the government. Donald Trump is not the sovereign, or even a sovereign, per our constitution. “L’etat, c’est moi” is exactly the system rejected by the American revolution. You want to live in a country with such a system, I recommend North Korea. I hear they also have great opportunities for beachfront condo development.

    2. ” That is sovereign immunity.”

      Nobody but Donald Trump voted Donald Trump for King.


  15. Krayt
    October.24.2019 at 4:28 pm
    What happens if every yokel state prosecutor tries to tie him up, seize tax records to embarrass via leaks, and so on?

    I’ll admit this is a highly theoretical thought experiment.”

    It’s getting less theoretical every day.

    1. To answer your hypothetical, consider two possibilities:

      1) The man is pure and innocent and all the evidence shows this. Result: The harassment gets him sympathy, which gets him re-elected.

      2) Reality… the man never saw a crooked opportunity to profit he didn’t want a piece of.
      Result: His loyal fans won’t see it, and his critics didn’t need to be told. Whether or not he gets reelected depends on who the D’s put up, and their ability to make a case that the D is the better choice.

  16. “Trump has to persuade the court that there is a federal interest at stake that would justify a federal court’s interference with an ongoing state criminal investigation. The interest he asserts is a supposed presidential immunity from state criminal investigation: The subpoena, he argues, violates his federally-protected right, as president, to be free from criminal investigation by state authorities, even in connection with activity occurring prior to his assuming office.”

    Er, wouldn’t the limitation (if it exists) prevent PROSECUTION, rather than INVESTIGATION? If the investigation turns up evidence that implicates someone else, the statute of limitations is still ticking for the someone else, even if it is tolled for the sitting President. So the interests of justice should hold that investigation can (should, must) continue.

  17. If the President shot someone while walking down Fifth Avenue, wouldn’t the Lon Horiuchi case be a precedent for the NY State government not being able to prosecute?

    1. Technically, they legally could prosecute him. But the feds moved it to a federal court, then dropped the prosecution.

      At that point the state authorities could have resumed their prosecution, but the message had been delivered, they didn’t bother.

      I suppose theoretically Trump could do the same, but there would be no basis for expecting the state authorities to relent in his case.

    2. The Horiuchi case was for acts committed in the course of his official duties. One would find it hard to imagine that Trump shooting someone on 5th Ave. would fall in the same bucket. (Though one would find it easy to imagine that Trump’s sycophants would claim otherwise.)

      1. It’s nothing every other president before him hasn’t done.

  18. Does it struck anyone else as absurd that the Fifth Avenue example get brought up in court? Yes Trump, in his over the top style said this, but most people (I hope) just thought it bravado. Now its part of a court proceeding. What does this say about our legal system that we would give a known killer immunity. The author is correct the President’s lawyer had the duty to offer a defense. I just wish all three judges had said in unison “that the stupidest thing I have every heard in a court room”.

    1. The author is correct the President’s lawyer had the duty to offer a defense.

      That he instead offered such an obvious absurdity should be seen as dereliction of duty, not as an exercise of duty.

      1. You’re assuming that a better defense was available.

  19. Why not leave the issue to the agency that already has the returns and could initiate a criminal case if it found any signs of illegal conduct: the New York Department of Taxation and Finance. I think the real motive of this case is to force disclosure of the returns in a way that they can be leaked to the public.

    1. “Why not leave the issue to the agency that already has the returns and could initiate a criminal case if it found any signs of illegal conduct: the New York Department of Taxation and Finance.”

      Perhaps because they lack the ability to conduct the investigation using these records?

      ” I think the real motive of this case is to force disclosure of the returns in a way that they can be leaked to the public.”

      You may be right. I think the real motive of the case is to prosecute a criminal, even if they have to wait until 2021, or God help us, 2025 to do it. Wonder which of us is right? Maybe we both are.

  20. Does Reason have the facility to do polls? I’d be interested in who agrees with this Presidential investigatory immunity doctrine.

    Who will step up and be counted that the solution to hypothetical weaponized investigations is to get ourselves a king who is above the law.

  21. Under this logic, couldn’t the president avoid impeachment indefinitely by shooting any senators expected to vote against him? Obviously he’d have to be very dedicated to keep up with the pace of new appointments to the open seats, but the fact that it even works as a hypothetical doesn’t exactly speak well of the argument.

    1. In your hypothetical, is he shooting the Senators personally, or is he relying on subordinates? It makes a difference, because if he’s doing it personally, eventually you’d expect a Senator to engage private security sufficient to protect against a lone gunman. On the other hand, if he’s farming the work out to subordinates, the subordinates could be charged in state courts until you got one to flip. If we’re making this a movie plot, the subordinate gets flipped before the deed is done, and the death of the Senator is faked, until the surprise reveal at the impeachment vote tally.

      Or you could make a different movie, and have the Senator turn out to be a surprise gun-rights supporter who shoots back at the assassin, only to realize it was the President the whole time. You could even make it a kids’ movie, if you put in a bunch of interns who happen to have a talking dog nearby when the would-be assassin is unmasked. Zoinks! It was the President the whole time…

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