Federal judge bloodies trump’s nose

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Opinions
A federal judge takes a sledgehammer to Trump’s stonewalling
By Harry Litman
October 7 at 11:20 AM PT


A federal judge ruled Monday that President Trump must hand over eight years of tax returns to prosecutors in New York. (Lucas Jackson/Reuters)
It was no great surprise that a federal court Monday morning rejected President Trump’s argument that, as a sitting president, he is immune even from being investigated by the Manhattan district attorney. Nor that the court of appeals swiftly granted a stay of the order, thus preserving its ability to hear an appeal.
But the district court’s scathing assessment of the implications of Trump’s argument is telling, and the tale it tells should greatly concern the White House in the looming impeachment battle.
Recall that Trump brought the action in federal court to prevent Manhattan District Attorney Cyrus Vance Jr. from subpoenaing Trump’s accountants for his tax returns as part of Vance’s criminal investigation. (This is the same case that the Justice Department recently entered, on behalf of Trump.)
The court’s technical ruling Monday is that it would abstain from entering the fray based on a general court-made doctrine — it’s known as the Younger abstention — that instructs federal courts not to meddle in pending state criminal prosecutions. Trump (and the Justice Department) had argued that fundamental questions of presidential immunity justified ignoring that doctrine here. The court’s rejection of the president’s position could not have been more emphatic.
Notably, the 75-page opinion by U.S. District Judge Victor Marrero came just two weeks after oral arguments, blindingly fast by litigation standards. Its length and complexity suggest that the court was already working on the opinion from the time Trump filed his hyperaggressive claim.


Most important, Marrero, who could have made quick and summary work of Trump’s argument, went on at substantial length to explain just how lawless and brazen the position was.
Marrero began the opinion by calling the president’s claim “extraordinary.” Things went steeply downhill for Trump from there.
He wrote that Trump was asserting a constitutional shield from judicial process that was “virtually limitless,” a notion of “unqualified and boundless . . . presidential immunity that stands at direct odds with the framers’ constitutional plan and the Supreme Court’s precedents on executive immunity.”
More: The president’s position was “repugnant to the nation’s governmental structure and constitutional values.” At its core, the court wrote, the argument reduces to the “very notion that the Founders rejected at the inception of the Republic.”
And all that in just the first eight pages of the opinion, which continues on to demonstrate, using Supreme Court case law and basic political theory and history, the fundamental arrogance and lawlessness of Trump’s argument.
Trump likely anticipated the ruling, and maybe even welcomed the opportunity to move the case to the Second Circuit Court of Appeals, thereby eating up more time. The legal battle isn’t over yet.
But this skirmish was a total rout for the president, and that matters for several reasons.
First, there are similar pending actions involving the administration’s general strategy of filing tenuous or meritless arguments to resist lawful testimony or producing documents. You can be sure that the courts in those actions will carefully read Judge Marrero’s opinion here — which paves the way toward dismissive and incensed rejections of other outlandish arguments (e.g., the administration’s insistence that former White House counsel Donald McGahn and former communications director Hope Hicks are protected by absolute immunity from even showing up in Congress).


Second, the quick work of the court indicates a judicial recognition of the urgency of resolving the administration’s far-fetched claims. It’s hard to see the court of appeals sitting on its hands for months after the lower court has made such a quick handoff.
But, most important, by far, is that the scathing language of the opinion bolsters the argument the House is developing for its second impeachment count, based on Trump’s attempted stonewalling of the House’s investigation. It is a major shot in the arm for that theory that the judicial branch has weighed in saying that Trump’s legal strategy is brazen and bankrupt.
That strategy has stalled matters for a few months, but it’s beginning to come home to roost.
Read more: 
Harry Litman: Can the Justice Department actually block the Manhattan DA’s subpoena of Trump’s taxes?
Harry Litman: The Justice Department is oddly incurious about potential criminality in the Trump-Ukraine mess

Harry Litman, a Washington Post contributing columnist, is a former U.S. attorney and deputy assistant attorney general. He teaches constitutional law and national security law at the University of California at Los Angeles School of Law and the University of California at San Diego Department of Political Science.


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