The government is not a party to the case but has the right to provide its views.
Although the Justice Department asked that the court stop the release of Mr. Trump’s tax returns and reiterated its longstanding position that a sitting president may not be charged or prosecuted, it appeared to leave open the door for Mr. Trump to be investigated by Mr. Vance’s office.
The Justice Department argued that Mr. Vance should not be able to obtain the president’s personal records “unless and until” it could show that the records it was seeking from Mr. Trump were central to the investigation, not available elsewhere and were needed immediately, as opposed to after Mr. Trump leaves office.
Mr. Vance’s office, citing Mr. Trump’s arguments in the case, told the appeals court in a brief that Mr. Trump’s “core position on every one of these matters is that the United States presidency places him beyond the reach of the law.”
During the appeals hearing, Judge Katzmann asked whether the court could address only whether a state may lawfully demand that a third party — in this case, Mazars, Mr. Trump’s accounting firm — relinquish the president’s personal financial records for use in a grand jury investigation while the president was still in office.
“Why can’t we think about this case in a narrow sense?” Judge Katzmann asked.
Mr. Consovoy responded that one “cannot simply pretend” that such a subpoena was not “ultimately directed to the party who entrusted the custodian with those records.”
Throughout the arguments, the judges returned to the president’s claim of broad immunity.
“Your position,” Judge Chin addressed Mr. Consovoy at one point, “is that the immunity is absolute.
“And so if the president were to commit a crime, no matter how heinous,” Judge Chin continued, whether he did it before he took office or after he entered, he could not be the subject of any investigation. “That’s the position?”
“Yes,” Mr. Consovoy replied, adding, “Of course, Congress retains the impeachment power.”