President Trump was granted at least a brief reprieve Monday after a federal judge issued a scathing order allowing the Manhattan District Attorney’s Office to subpoena his tax returns from accounting firm Mazars USA.
The 2nd Circuit Court of Appeals put the subpoena on hold after Trump's attorneys filed an emergency appeal.
“We are very pleased that the U.S. Court of Appeals for the 2nd Circuit has issued a stay of the subpoena issued by New York County District Attorney Cy Vance,” Trump attorney Jay Sekulow said.
The administrative stay will only be in place while the court reviews the case, and it's unclear how that will resolve. U.S. District Court Judge Victor Marrero earlier Monday was unsparing toward the president's legal team as he dismissed Trump’s lawsuit seeking to block the subpoena.
Marrero, who was appointed by then-President Bill Clinton, wrote that “the expansive notion of constitutional immunity invoked here to shield the President from judicial process would constitute an overreach of executive power,” and that Trump’s argument essentially claims “that a constitutional domain exists in this country in which not only the President, but, derivatively, relatives and persons and business entities associated with him in potentially unlawful private activities, are in fact above the law.”
The subpoena, which covers records from January 2011 through the present, is part of an ongoing probe of the Trump Organization by District Attorney Cy Vance’s office. Trump argued that Mazars USA should not have to release the tax records because sitting presidents should be immune from state investigations.
Marrero ruled that the federal court should abstain from the matter, as the investigation is part of an ongoing state prosecution. Recognizing that an appellate court may take issue with this decision, Marrero sought to explain at length why he was rejecting Trump's immunity claim and denying the request for an injunction against the subpoena.
In doing so, he even challenged conventional legal wisdom regarding the high hurdles to presidential prosecution.
The judge said it may be Justice Department policy not to prosecute a sitting president, but stressed that the policy derives from Office of Legal Counsel guidance, not established law.
“[T]he theory has gained a certain degree of axiomatic acceptance, and the DOJ Memos which propagate it have assumed substantial legal force as if their conclusion were inscribed on constitutional tablets so-etched by the Supreme Court,” Marrero wrote. “The Court considers such popular currency for the categorical concept and its legal support as not warranted.”
The DOJ’s position on presidential prosecution was recently invoked during former special counsel Robert Mueller’s Russia probe, when he explained that he was not making a traditional prosecutorial determination, citing the policy.
After Marrero issued his decision, Trump tweeted what appeared to be a reference to Vance’s case.
“The Radical Left Democrats have failed on all fronts, so now they are pushing local New York City and State Democrat prosecutors to go get President Trump,” he said.