Trump Taxes: Justice Dept. Asks Judges to Block Subpoena


The Justice Department asked a federal appeals court on Friday to stop the release of President Trump’s tax returns to the Manhattan district attorney’s office, arguing that local prosecutors should have to meet a very high legal bar before investigating a sitting president.

The filing meant Mr. Trump’s own Justice Department was lending support to his attempt to block a subpoena demanding eight years of his personal and corporate tax returns. The district attorney’s office issued the subpoena to Mr. Trump’s accounting firm in late August as part of an investigation into hush-money payments made before the 2016 presidential election.

But in its filing, the Justice Department, which is led by Attorney General William P. Barr, stopped short of endorsing Mr. Trump’s most sweeping argument: that sitting presidents are totally immune from all criminal investigations.

Mr. Trump’s lawyers had made the argument in a lawsuit attempting to shield his tax returns from the Manhattan district attorney, Cyrus R. Vance Jr.

The lawsuit argued that the Constitution prevented a sitting president from being “investigated, indicted or otherwise subjected to criminal process,” especially from a local prosecutor, such as Mr. Vance.

On Monday, Judge Victor Marrero of United States District Court in Manhattan dismissed the lawsuit and rejected that position, which he called “repugnant to the nation’s governmental structure and constitutional values.”

The Justice Department had not previously weighed in with its view of the merits of Mr. Trump’s lawsuit, which made an argument that has not been tested in the courts.

But after Mr. Trump appealed Judge Marrero’s ruling, the department wrote to the United States Court of Appeals for the Second Circuit, saying it wanted to provide its views in a case that raised “a number of significant constitutional issues that potentially implicate the interests of the United States.”

Even though the United States is not a party to the lawsuit, it has the right to give its views.

In the brief filed on Friday, the department asked the appeals court to reverse Judge Marrero’s decision and order him to stop enforcement of the subpoena.

The department reiterated its longstanding position that a sitting president may not be charged or prosecuted, citing Justice Department memos dating to the Nixon and Clinton administrations.

But in essence, the department declined to adopt Mr. Trump’s absolutist argument for immunity from criminal investigation, and instead urged the appellate court to have Judge Marrero take a closer look at the burdens a subpoena from a local prosecutor would impose on the president.

Mr. Vance should not be able to obtain the president’s personal records “unless and until — at a minimum — the District Attorney is able to make the required showing of particularized need,” the brief read.

The department said Mr. Vance’s office had to show that the records it was seeking from Mr. Trump were central to the grand jury’s investigation and were needed immediately, as opposed to after the president leaves office.

The district attorney also should have to show that the records were not available elsewhere, the department wrote.

Presidential materials “should not be treated as just another source of information,” the department said. “A subpoena directed at a president’s records should be permitted only as a last resort.”

Mr. Trump’s lawyers, in a separate appeal brief filed on Friday, said “the president’s claim of absolute immunity is meritorious.”

They argued that the framers of the Constitution had recognized the need for a strong chief executive and created a process for investigating and removing him in a manner that would “embody the will of the people” — a clear reference to impeachment.

”A lone county prosecutor cannot circumvent this arrangement,” Mr. Trump’s lawyers said. “That the Constitution empowers thousands of state and local prosecutors to embroil the president in criminal proceedings is unimaginable.”

Mr. Vance’s office has been examining whether any New York State laws were broken when Mr. Trump and his company, the Trump Organization, reimbursed the president’s former lawyer and fixer, Michael D. Cohen, for payments he made to the pornographic film actress Stormy Daniels, who had said she had an affair with Mr. Trump. He has denied the relationship.

The current dispute began after Mr. Vance’s office subpoenaed Mr. Trump’s accounting firm, Mazars USA, seeking his personal and corporate tax returns dating to 2011.

Mr. Trump sued in Federal District Court in Manhattan, seeking to block the subpoena. His lawyers argued that enforcement of the subpoena was a politically motivated action by Mr. Vance’s office and that its enforcement would cause the president irreparable harm.

“Criminal investigations impose severe burdens on the president and distract him from his constitutional duties,” the president’s lawyers wrote.

Mr. Vance’s office, rejecting the president’s arguments, claimed that Mr. Trump was trying to “invent and enforce a new presidential ‘tax return privilege.’”

The district attorney’s office declined to comment on Friday. Its response to the briefs filed by the president and the Justice Department is due Tuesday. The appeals court, which typically decides cases with three-judge panels, is to hear oral arguments on the matter on Oct. 23.

Mr. Trump has challenged attempts by Congress to obtain his tax returns. On Friday, a separate federal appeals court panel in Washington ruled that the House Oversight Committee can subpoena Mazars for eight years of the president’s financial records.


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