'Unimaginable' for Local DAs to Probe President, Trump Lawyers Say in Bid to Toss Grand Jury Subpoena
"There has been broad bipartisan agreement, for decades if not centuries, that a sitting President cannot be subjected to criminal process," Trump's lawyers wrote.
October 11, 2019 at 04:53 PM
4 minute read
President Donald Trump. Photo: Bloomberg
President Donald Trump's legal team defended his claim to absolute immunity from criminal investigation and insisted on a federal forum to decide on his challenge to a Manhattan grand jury subpoena seeking his tax returns in a brief filed in the U.S. Court of Appeals for the Second Circuit at 4:30 p.m. Friday.
"There has been broad bipartisan agreement, for decades if not centuries, that a sitting President cannot be subjected to criminal process," Trump's lawyers wrote, continuing their argument that a Manhattan grand jury should not be able to subpoena Trump's accounting firm, Mazars USA, for his tax returns.
Trump sued Manhattan District Attorney Cyrus Vance Jr. in the Southern District of New York in September, arguing that presidents should not be subject to investigation or indictment by local prosecutors. The grand jury had subpoenaed Trump's accounting firm for eight years of his tax returns in August.
U.S. Senior District Judge Victor Marrero of the Southern District of New York dismissed the case Monday, citing the 1971 U.S. Supreme Court decision Younger v. Harris as he ruled that federal courts should not intervene in this kind of state case. Trump immediately appealed to the Second Circuit, which agreed to hear the case and stayed enforcement of the subpoena until arguments have been made.
Anticipating the appeal, Marrero laid out his reasoning on the merits of Trump's presidential immunity argument, finding that a court with appropriate jurisdiction should also dismiss the case. Marrero wrote that the writers of the U.S. Constitution carefully avoided giving presidents the all-encompassing immunity of British kings.
He also criticized the authority Trump's legal team has given to memos from the U.S. Department of Justice's Office of Legal Counsel. The memos may hold that presidents are immune from criminal investigation and prosecution, Marrero wrote, but they do not have the legal weight of court rulings.
The weight of the memos is becoming increasingly relevant in New York and in Washington, where Chief U.S. District Judge Beryl Howell for the District of Columbia raised questions about them Tuesday. The memos are binding for federal prosecutors, as the National Law Journal reported, but state prosecutors and Congress potentially have more flexibility.
Trump's attorneys said local criminal investigation of a president is "unimaginable."
"That the Constitution empowers thousands of state and local prosecutors to embroil the President in criminal proceedings is unimaginable," they wrote in a brief signed by William Consovoy of Consovoy McCarthy.
Another subpoena for Trump's tax returns, from Democrats in the U.S. House of Representatives, cleared a hurdle in the U.S. Court of Appeals for the D.C. Circuit on Friday, when a panel of judges ruled 2-1 that revealing Trump's tax returns would not create an undue burden for him or prevent him from doing his job as president.
In an amicus brief filed Friday afternoon, U.S. Department of Justice lawyers argued that Marrero fundamentally misunderstood the relationship between a president and state criminal processes.
Asserting any state criminal jurisdiction over the president raises constitutional issues, according to the amicus brief, which was signed by Justice Department lawyer Gerard Sinzdak of Main Justice's Civil Division Appellate Staff. The grand jury subpoena will burden the president so much that it could interfere with his ability to perform his constitutional duties, Sinzdak wrote.
"Just as an indictment and prosecution could be expected to divert the President's attention and energy from his official duties to his personal legal jeopardy, a demand for the President's own records will necessarily be a distraction when the President himself is a possible focus of the criminal investigation," Sinzdak wrote.
Vance's brief is due at 5 p.m. Tuesday, and Trump's reply brief is due Thursday. Arguments before a panel of judges are scheduled for Oct. 23.
Read more:
US Judge Dismisses Trump Challenge to Subpoena of Tax Returns; 2nd Circuit Gets Immediate Appeal
DC Circuit Upholds Democrats' Subpoena for Trump's Financial Records
Manhattan DA's Office Asks for Dismissal of SDNY Challenge to Trump Tax Subpoena
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View All
After Solving Problems for Presidents, Ron Klain Now Applying Legal Prowess to Helping Airbnb Overturn NYC Ban
7 minute read
US Courts Announce Closures in Observance of Jimmy Carter National Mourning Day
2 minute read
Government Attorneys Are Flooding the Job Market, But Is There Room in Big Law?
4 minute readTrending Stories
- 1Court Rejects San Francisco's Challenge to Robotaxi Licenses
- 2'Be Prepared and Practice': Paul Hastings' Michelle Reed Breaks Down Firm's First SEC Cybersecurity Incident Disclosure Report
- 3Lina Khan Gives Up the Gavel After Contentious 4 Years as FTC Chair
- 4Allstate Is Using Cell Phone Data to Raise Prices, Attorney General Claims
- 5Epiq Announces AI Discovery Assistant, Initially Developed by Laer AI, With Help From Sullivan & Cromwell
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
