AILSA CHANG, HOST:
President Trump’s private lawyer argued before a federal appeals court in New York today that the president cannot be investigated by any local prosecutor as long as he is president. It’s a case that could have far-reaching legal consequences. It stems from a subpoena the Manhattan district attorney issued for Trump’s tax returns. But at issue in the court hearing was whether a sitting president can be investigated for any crime whatsoever.
Andrea Bernstein is co-host of the “Trump, Inc.” podcast from member station WNYC and ProPublica. She was in the courtroom and joins us now. Hey, Andrea.
ANDREA BERNSTEIN, BYLINE: Hey, Alisa.
CHANG: All right, so just to remind everyone where this case originally comes from, it’s from the investigation into hush money payments made to Stormy Daniels, the adult film actress, right?
BERNSTEIN: Right. So the U.S. attorney here was investigating that case in relationship to Michael Cohen, the president’s former personal attorney. But when the Justice Department determined it could not indict a sitting president, the Manhattan DA took over. And we do know from public documents that the Trump organization called the hush money payment a, quote, “retainer,” which could be falsifying a business record, which is a felony in New York.
So a grand jury was impaneled, charged in investigating. But when the DA asked for Trump’s tax returns, Trump sued. A Federal Court judge dismissed that case, calling Trump’s arguments repugnant to the nation’s governmental structure and constitutional values. But Trump appealed, and that’s why the Second Circuit Court of Appeals heard arguments in the case today.
CHANG: OK. Let me just get this straight. So Trump’s team is arguing that Trump cannot be investigated because – what? – he has immunity?
BERNSTEIN: That’s right. Trump’s lawyer William Consovoy said he views this DA subpoena as, quote, “an inappropriate fishing expedition” and that a sitting president has absolute immunity from investigation. So Trump’s legal team is arguing that if this case could go forward, then prosecutors in 50 states could mount what they implied would be bad faith investigations of the president.
But these lawyers are making another argument as well. They’re saying that the president’s business can’t be investigated. And one of the judges really pressed Trump’s lawyer on this. He said, well, why are they immune? And Trump’s lawyer Consovoy said, well, it’s because they’re wholly owned by the president, and they have his personal records. So what he’s saying is because the president has not divested from his company, which has been the subject of some criticism lately…
BERNSTEIN: …Because of that, his businesses should also have immunity from investigation.
CHANG: So how did the judges today seem to react to all these arguments?
BERNSTEIN: Well, they did press both sides. But the most telling exchange came at the end when Judge Denny Chin asked Trump’s lawyer Consovoy about whether Trump could actually take a pistol, as he once said, and shoot someone on Fifth Avenue and not even be investigated by the NYPD.
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DENNY CHIN: What’s your view on the Fifth Avenue example? Local authorities couldn’t investigate? They couldn’t do anything about it?
WILLIAM CONSOVOY: I think once a president is removed from office, they’ll – any local authority – this is not a permanent immunity.
CHIN: Well, I’m talking about while in office.
CHIN: That’s the hypo.
CHIN: Nothing could be done. That’s your position?
CONSOVOY: That is correct.
CHANG: Wow. That is quite a legal position. OK, so what happens at this point?
BERNSTEIN: We wait for a ruling. The Manhattan DA has agreed not to fight to enforce his subpoena for now but only if the U.S. Supreme Court takes up the case quickly. Everyone seems to agree it’s going to the Supreme Court. In fact, one of the judges said today, I think you’ll see each other again in D.C.
CHANG: That’s Andrea Bernstein, co-host of the “Trump, Inc.” podcast from WNYC and ProPublica. Thanks very much, Andrea.
BERNSTEIN: Thanks so much. Great to talk to you. Transcript provided by NPR, Copyright NPR.