The decision by Judge Victor Marrero of Federal District Court in Manhattan to dismiss a lawsuit by Donald Trump that sought to block a subpoena seeking eight years worth of his personal and corporate tax filings briefly hit the news today.
However, the momentous ruling was quickly overtaken by news of Trump’s decision to withdraw troops from Syria and the fact that the president’s legal team immediately appealed Judge Marrero’s decision to the Second Circuit Court of Appeals in Manhattan, which again delayed the enforcement of the subpoena until after it considers the merits of the appeal.
The quick disappearance of the story from the headlines means that many people missed the judge’s stunning repudiation of both the president’s claim that he is invulnerable to criminal investigation while in office and the Department of Justice’s legal ruling that he is immune from indictment until his term ends.
Judge Marrero’s 75-page ruling cited precedents at the Supreme Court and utilized a close reading of the U.S. Constitution to demolish the Trump legal team’s arguments, saying that their case amounted to declaring that the president — and everyone surrounding him — is simply above the rule of law.
“This court finds aspects of such a doctrine repugnant to the nation’s governmental structure and constitutional values,” Judge Marrero wrote in his findings.
While the issue of whether a sitting president can actually be prosecuted for crimes while in office is not specifically mentioned in the Constitution nor has it been litigated before the Supreme Court, the Justice Department has issued its own opinion on the matter through prosecution guidelines that prohibit federal prosecutors — and Special Counsels like Robert Mueller — from bringing charges against a still-reigning president in the judicial system.
“Walter Dellinger, who served as acting United States solicitor general in the Clinton administration, said Judge Marrero’s opinion was ‘an emphatic rejection of the imperial presidency claim that a president cannot even be investigated,’” The New York Times reported.
Indeed, Judge Marrero — who was himself appointed to the bench by President Clinton in 1999 — casually dismisses the Justice Department memo prohibiting the indictment of a sitting president as unsupported and, therefore, irrelevant, as this quote from his ruling demonstrates.
“The Court is not persuaded that it should accord the weight and legal force the President ascribes to the DOJ Memos, or accept as controlling the far-reaching proposition for which they are cited in the context of the controversy at hand. As a point of departure, the Court notes that many statements of the principle that “a sitting President cannot be indicted or criminally prosecuted” typically cite to the DOJ Memos as sole authority for that proposition. Accordingly, the 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 etched by the Supreme Court. The Court considers such popular currency for the categorical concept and its legal support as not warranted.”
“Because the arguments the President advances are substantially grounded on the supposed constitutional doctrine and rationale the DOJ Memos present, a close review of the DOJ Memos is called for. On such assessment, the Court rejects the DOJ Memos’ position. It concludes that better calibrated alternatives to absolute presidential immunity exist yielding a more appropriate balance between, on the one hand, the burdens that subjecting the President to criminal proceedings would impose on his ability to perform constitutional duties, and, on the other, the need to promote the courts’ legitimate interests and functions in ensuring effective law enforcement attendant to the proper and fair administration of justice.”
It would be a shame if such an important repudiation of a legal principle that puts one citizen outside the accountability of the law is ignored or simply missed because of the rapidly accelerating news cycle.
One can only hope that the federal judiciary continues to question the validity of this Justice Department shield protecting President Trump from being brought to justice for the crimes for which there has already been more than ample evidence.
With the case likely to advance to the Supreme Court, we will eventually discover how politicized that ultimate arbiter of constitutionality has become with two judges appointed by Trump on the bench.
Whether the public — or more importantly, Congressional investigative committees and New York State prosecutors — will get to see Trump’s tax returns hangs in the balance, depending on the outcomes of those upcoming decisions.
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Original reporting by William K. Rashbaum and