The Fifth Avenue Immunity

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

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.